Estate of William Hayden Schuck, by and through his successors in-interest Sabrina Schuck and Timothy Schuck; et al. v. County of San Diego; et al.

Opinion

1 2 3 4 5 6 7 10 11 Case No.: 23-cv-785-DMS-AHG ESTATE OF WILLIAM HAYDEN

12 SCHUCK, by and through his successors ORDER GRANTING IN PART AND in-interest Sabrina Schuck and Timothy 13 DENYING IN PART MOTION TO Schuck; et al., DISMISS DEFENDANTS 14 Plaintiffs, CORRECTIONAL HEALTHCARE 15 v. PARTNERS AND NICHOLAS KAHL FROM SECOND AMENDED 16 COUNTY OF SAN DIEGO; et al., COMPLAINT (ECF NO. 67) 17 Defendants. 18 19 Pending before the Court is Defendants Correctional Healthcare Partners (“CHP”) 20 and Nurse Practitioner Nicholas Kahl’s (“Kahl”) motion to dismiss Plaintiffs’ Second 21 Amended Complaint (“SAC,” ECF No. 58) under Federal Rule of Civil Procedure 22 12(b)(6). (ECF No. 67.) Following the death of William Hayden Schuck (“Schuck”) in 23 San Diego County Central Jail the morning of March 16, 2022, Schuck’s parents, Sabrina 24 and Timothy Schuck, on behalf of Schuck’s Estate and in their individual capacities as 25 Schuck’s next of kin, brought several claims against the County of San Diego (“the 26 County”), CHP, Kahl, and various county employees alleging constitutional violations 27 under 42 U.S.C. § 1983 and the California Bane Act (Cal. Gov’t Code § 52.1), and various 28 state tort law claims including negligence and wrongful death. Plaintiffs filed a response 1 in opposition (ECF No. 69) to which CHP and Kahl replied (ECF No. 70). For the reasons 2 set forth below, the Court grants in part and denies in part the motion to dismiss. 4 A. Factual Allegations 5 The background of this case is set forth in detail in the Court’s previous Order dated 6 February 8, 2024 (ECF No. 53). See Estate of Schuck ex rel. Schuck v. County of San 7 Diego (Estate of Schuck I), No. 23-CV-785-DMS-AHG, 2024 WL 500711, at *1–4 (S.D. 8 Cal. Feb. 8, 2024). The SAC adds Kahl as a named defendant and alleges Kahl was, at all 9 relevant times, a CHP employee contracted by the San Diego Sheriff’s Department in the 10 Medical Services Division at the San Diego County Jail. (SAC ¶ 27.) On March 15, 2022, 11 four days after Schuck’s hospitalization at UCSD, Kahl allegedly reviewed the “After Visit 12 Summary” and requested Schuck’s complete record from UCSD including all physician 13 notes. (Id. ¶ 95.) Plaintiffs allege that Kahl “should have reviewed [Schuck’s] hospital 14 records as soon as they were scanned into the system as part of the screening process,” and 15 that “[b]ased on [Schuck’s] medical records, Kahl should have known … of [Schuck’s] 16 serious medical issues and failed to … summon medical case.” (Id. ¶¶ 96–97.) There are 17 no material changes between the SAC and the First Amended Complaint (“FAC”) 18 regarding CHP’s liability, except that the SAC omits the allegation that “physicians 19 employed by CHP knew or should have known of [Schuck’s] symptoms during the days 20 leading up to his death and could have and should have intervened to provide life-saving 21 medical care,” (FAC ¶ 153, ECF No. 25), the Monell claims in Counts 3 and 4 no longer 22 contain an official ratification theory of liability, and Doe Medical Provider 2 (mental 23 health provider) is omitted. 24 B. Claims 25 Plaintiffs Sabrina and Timothy Schuck, parents of the decedent, initiated this action 26 on April 28, 2023, and filed the FAC on June 1, 2023. On February 8, 2024, the Court 27 issued an order granting in part and denying in part Defendant CHP’s motion to dismiss 28 and granting leave to amend. (ECF No. 53.) Plaintiffs filed their SAC on March 14, 2024, 1 which alleges nine claims (eight of which are against CHP or Kahl), as follows: 2 (1) 42 U.S.C. § 1983 for violation of the Fourteenth Amendment, by Schuck’s Estate, against various County employees and Kahl. (SAC ¶¶ 201–210.) 3 (2) 42 U.S.C. § 1983 for violation of the Fourteenth Amendment, by Schuck’s 4 parents, against various County employees and Kahl. (Id. ¶¶ 211–218.) 5 (3) 42 U.S.C. § 1983 (Monell) for violation of the Fourteenth Amendment, by 6 Schuck’s Estate, against the County and CHP. (Id. ¶¶ 219–235.) 7 (4) 42 U.S.C. § 1983 (Monell) for violation of the Fourteenth Amendment, by Schuck’s parents, against the County and CHP. (Id. ¶¶ 236–241.) 8 (5) California Government Code § 52.1 (Bane Act), by Schuck’s Estate, 9 against the County, County employees, CHP, and Kahl. (Id. ¶¶ 242–250.) 10 (6) California Government Code § 845.6 for failure to summon medical care, 11 by Schuck’s Estate, against the County and County employees.1 (Id. ¶¶ 251–261.) 12 (7) Negligence, by Schuck’s Estate, against the County, County employees, 13 CHP, and Kahl. (Id. ¶¶ 262–273.) 14 (8) Negligent training and supervision, by Schuck’s Estate, against the 15 County, certain County employees, CHP, and Kahl. (Id. ¶¶ 274–285.) 16 (9) Wrongful death, by Schuck’s parents, against the County, County employees, CHP, and Kahl. (Id. ¶¶ 286–294.) 17 18 On April 25, 2024, a second informal telephonic status conference was held with the 19 undersigned district judge. (See ECF No. 66.) Defendants CHP and Kahl filed the second 20 motion to dismiss on May 3, 2024. (“Defs.’ Mot.,” ECF No. 67.) Plaintiffs filed a response 21 in opposition on June 7, 2024. (“Pls.’ Opp’n,” ECF No. 69.) On June 21, 2024, Defendants 22 filed a reply. (“Defs.’ Reply,” ECF No. 70.) The Court took the matter under submission 23 without oral argument, see S.D. Cal. Civ. L.R. 7.1(d)(1), on June 28, 2024. (ECF No. 73.) 25 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 26

27 1 The SAC makes a single fleeting reference to “Kahl” in this claim. (See SAC ¶ 253.) This reference 28 1 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 2 Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, “a complaint must contain 3 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 4 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 5 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is liable 7 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim 8 for relief will … be a context-specific task that requires the reviewing court to draw on its 9 judicial experience and common sense.” Id. at 679. “Factual allegations must be enough 10 to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. If Plaintiff 11 “ha[s] not nudged” her “claims across the line from conceivable to plausible,” the 12 complaint “must be dismissed.” Id. at 570. 13 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 14 “accept factual allegations in the complaint as true and construe the pleadings in the light 15 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 16 519 F.3d 1025, 1031 (9th Cir. 2008). But courts are not “required to accept as true 17 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 18 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 19 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 21 For the following reasons, the Court grants Defendant Kahl’s motion to dismiss. 22 Plaintiffs have not plausibly alleged that the records Kahl viewed contained enough 23 information to put Kahl on notice of Schuck’s serious medical conditions or that Kahl ever 24 viewed (or had access to) Schuck’s jail medical records which could have put Kahl on 25 notice of Schuck’s serious medical conditions. Similarly, the Court grants in part 26 Defendant CHP’s motion to the extent that Plaintiffs’ claims rely on a respondeat superior 27 theory of liability premised on Kahl’s actions as a CHP employee. CHP’s motion is 28 otherwise denied as the allegations against CHP in the SAC are materially 1 indistinguishable from those in the FAC. 2 A. Counts 1–2: Section 1983 Individual Capacity Claims 3 Plaintiffs allege that Kahl viewed a medical record from UCSD called the “After 4 Visit Summary” four days after Schuck’s hospitalization. (SAC at ¶¶ 95–96.) Plaintiffs 5 allege that from reading the After Visit Summary, Kahl “should have known or did know 6 of Hayden’s serious medical issues and failed to administer treatment or summon medical 7 care.” (Id. at ¶ 97.) Defendants disagree and argue that the limited information available 8 to Kahl was insufficient to put Kahl on notice. (Defs.’ Mot. at 7.) The Court concludes 9 Plaintiffs have not sufficiently alleged that Kahl acted with deliberate indifference to 10 Schuck’s serious medical condition in violation of the Fourteenth Amendment. 11 1. Objective Deliberate Indifference Standard 12 “Traditionally, the requirements for relief under section 1983 have been articulated 13 as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) 14 proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” 15 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). “Individuals in state custody 16 have a constitutional right to adequate medical treatment.” Sandoval v. County of San 17 Diego, 985 F.3d 657, 667 (9th Cir. 2021) (citing Estelle v. Gamble, 429 U.S. 97, 104–05 18 (1976)). For pretrial detainees, this right arises under the Due Process Clause of the 19 Fourteenth Amendment. Id. (citing Bell v. Wolfish, 441 U.S. 520, 535–36 (1979)). The 20 Ninth Circuit applies an “objective deliberate indifference” standard to Fourteenth 21 Amendment claims alleging a pretrial detainee received deficient medical care. Gordon v. 22 County of Orange (Gordon I), 888 F.3d 1118, 1124–25 (9th Cir. 2018). Under this 23 standard, pretrial detainees alleging that jail officials failed to provide constitutionally 24 adequate medical care must show: 25 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined [including a decision with respect 26 to medical treatment]; 27 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 28 1 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have 2 appreciated the high degree of risk involved—making the consequences of 3 the defendant’s conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff’s injuries. 4 5 Sandoval, 985 F.3d at 669 (quoting Gordon I, 888 F.3d at 1125) (alteration in original). 6 “To satisfy the third element, the plaintiff must show that the defendant’s actions were 7 ‘objectively unreasonable,’ which requires a showing of ‘more than negligence but less 8 than subjective intent—something akin to reckless disregard.’” Id. (quoting Gordon I, 888 9 F.3d at 1125). 10 2. Analysis 11 Plaintiffs do not sufficiently plead that Kahl acted with deliberate indifference and in 12 reckless disregard to Schuck’s health. Plaintiffs allege: 13 95. On information and belief, on March 15, 2022, four days after Hayden’s hospitalization at UCSD, Defendant Nicholas Kahl, NP reviewed 14 the “After Visit Summary” medical record from UCSD that was scanned by 15 one of the County’s medical personnel (Doe Medical Provider 3). After reviewing the document, he immediately requested that nursing staff obtain 16 the full ER records, including all physician notes. 17 …. 97. Based on Hayden’s medical records, Kahl should have known or 18 did know of Hayden’s serious medical issues and failed to administer 19 treatment or summon medical care. 20 (SAC ¶¶ 95, 97.) However, Plaintiffs do not allege the content of the After Visit Summary 21 or explain why it should have put Kahl on notice of Schuck’s serious medical issues. 22 Without such allegations, the Court is not in a position to assess whether Kahl’s actions 23 after reading the After Visit Summary could plausibly have been “objectively 24 unreasonable” in violation of the Fourteenth Amendment. Sandoval, 985 F.3d at 669. 25 Plaintiffs also never plainly allege that Kahl viewed Schuck’s jail medical records or 26 even had access to jail medical records. Plaintiffs argue in their Opposition that “Plaintiffs 27 detail how [Schuck] exhibited serious symptoms of medical distress, that there were 28 information-sharing systems in place at the jail, and that [Schuck’s] symptoms were 1 recorded in his medical file for other medical services personnel, including NP Kahl, to see 2 and respond to.” (Pls.’ Opp’n at 12, citing SAC ¶¶ 36–134, 154.) Plaintiffs explain that 3 allegations in the SAC “refer to the fact that there are information-sharing systems in place 4 which allow for the input and sharing of information by both deputies and medical service 5 providers” and therefore, it can be inferred that Kahl was aware “either actually or 6 constructively” of Schuck’s symptoms of medical distress. (Pls.’ Opp’n at 6.) In support 7 of their assertion that Kahl and other CHP employees had knowledge of Schuck’s medical 8 condition, Plaintiffs refer to the following allegations in the SAC: Paragraph 154 (jail staff 9 must conduct safety checks “at least once every 60-minute period and the intervals must 10 vary and be logged properly into the jail information system (‘JIMS’)”), Paragraph 87 11 (nurse who performed a chest x-ray on Schuck on March 12, 2022, “recorded no notes” 12 regarding any medical assessment beyond the chest x-ray), and Paragraphs 115–18 (Nurse 13 Lymburn “failed to contemporaneously record and enter her notes” from her medical visit), 14 among others. These allegations do not plausibly demonstrate that Kahl knew or should 15 have known that Schuck was in dire need of medical care. See In re Gilead Scis. Secs. 16 Litig., 536 F.3d at 1055 (court not required to accept unwarranted deduction of fact as true). 17 Plaintiffs offer no specific allegations about the jail information system (occasionally 18 referenced in the SAC as “JIMS”), how jail medical records were kept, or who had access 19 to such records. The SAC therefore does not plausibly show that the acts (or omissions) 20 Kahl took in response to seeing the After Visit Summary constituted “unnecessary and 21 wanton infliction of pain” or was “repugnant to the conscience of mankind.” Gamble, 429 22 U.S. at 105–06. 23 Accordingly, the Court grants the motion to dismiss Kahl from the first and second 24 counts. Because the Court finds that the deficiencies identified can be cured, this dismissal 25 is with leave to amend. See Intri-Plex Techs. v. Crest Grp., Inc., 499 F.3d 1048, 1056 (9th 26 Cir. 2007) (dismissal without leave to amend is proper only if it is clear that “the complaint 27 could not be saved by any amendment.”) 28 / / / 1 B. Counts 3–4: Section 1983 Monell Claims 2 There are no significant changes between the FAC and SAC regarding the Monell 3 claims. The Court previously concluded that Plaintiffs had stated a Monell claim against 4 CHP based on a longstanding practices and customs theory and a failure-to-train theory. 5 Estate of Schuck I, 2024 WL 500711, at *9–11. The Court concludes the same again. 6 Defendants argue that “Plaintiffs have not causally connected” CHP’s allegedly 7 “deficient policies or customs to Schuck’s death” because “[u]nlike the allegations in the 8 FAC …, Plaintiffs no longer allege that various unknown ‘physicians employed by CHP 9 knew or should have known of [Schuck]’s symptoms during the days leading up to his 10 death and could have and should have intervened to provide life-saving medical care.’” 11 (Pls.’ Opp’n at 11, quoting FAC ¶ 153.) But that allegation was not dispositive. Regarding 12 the longstanding practices and customs theory, the Court explained: 13 It is enough here that Plaintiffs allege (1) that at the time of Schuck’s death, CHP had a contract with the County and was responsible for providing 14 medical services to detainees in the County Jail, and (2) that despite this 15 responsibility, CHP’s practices demonstrated deliberate indifference to detainees’ right to adequate medical care. This is sufficient to show at the 16 pleadings stage that CHP’s longstanding “failure[s] to implement procedural 17 safeguards to prevent constitutional violations,” Tsao [v. Desert Palace, Inc., 698 F.3d 1128, 1143–44 (9th Cir. 2012)], were the “moving force” behind 18 Schuck’s death, Monell [v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 19 694 (1978)]. 20 Estate of Schuck I, 2024 WL 500711, at *9. Nothing in the SAC changes this reasoning. 21 And regarding the failure-to-train theory, Plaintiffs have alleged that CHP is liable for 22 Schuck’s death because Schuck’s death was the result of, among other things, CHP’s 23 failure to train [its] employees, contractors, and agents to properly evaluate the health of and risks to detainees at intake and while in custody, to identify 24 serious symptoms of medical distress, to determine proper and adequate 25 courses of treatment for detainees in need of medical treatment, and how to summon and provide adequate medical care when necessary. 26 27 (SAC ¶ 225.) As the Court explained previously, Plaintiffs have plausibly alleged that 28 “‘the constitutional injury would not have resulted’ if CHP had properly trained jail 1 medical staff.” Estate of Schuck I, 2024 WL 500711, at *10 (quoting Benavidez v. County 2 of San Diego, 993 F.3d 1134, 1153–54 (9th Cir. 2021)). 3 Plaintiffs plausibly allege Monell claims against CHP based on a longstanding 4 practices theory and a failure-to-train theory. Accordingly, the Court denies the motion to 5 dismiss CHP from Counts 3–4. 6 C. Count 5: Violation of California Government Code § 52.1 (Bane Act) 7 “The essence of a Bane Act claim is that the defendant, by the specified improper 8 means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from 9 doing something he or she had the right to do under the law or to force the plaintiff to do 10 something that he or she was not required to do under the law.” Cornell v. City and County 11 of San Francisco, 17 Cal. App. 5th 766, 791–92 (2017) (quoting Cal. Civ. Code § 52.1). 12 Violations of federal and California constitutional and statutory rights are all cognizable 13 under the Bane Act. See Cal. Civ. Code § 52.1(b) (a violation occurs when a defendant 14 “interfere[s] ... with the exercise or enjoyment ... of rights secured by the Constitution or 15 laws of the United States, or of the rights secured by the Constitution or laws of this state”). 16 The Ninth Circuit has held “the Bane Act does not require the ‘threat, intimidation[,] or 17 coercion’ element of the claim to be transactionally independent from the constitutional 18 violation alleged” so long as the claimant shows the defendant had a “specific intent” to 19 commit the constitutional violation. Reese v. County of Sacramento, 888 F.3d 1030, 1043 20 (9th Cir. 2018). The specific intent requirement “is satisfied where the defendant ... acted 21 with ‘[r]eckless disregard of the right at issue.’” Estate of Serna v. County of San Diego, 22 No. 20-cv-2096-LAB, 2022 WL 827123, at *8 (S.D. Cal. Mar. 18, 2022) (quoting Cornell, 23 17 Cal. App. 5th at 804) (alteration in original). 24 In the SAC, Plaintiffs fail to state a Bane Act claim against Defendant Kahl but 25 continue to sufficiently allege a Bane Act claim against Defendant CHP. This Court 26 previously held that when allegations against a defendant are insufficient to show reckless 27 disregard in violation of a plaintiff’s Fourteenth Amendment right to adequate health care 28 under Section 1983, such allegations are also insufficient under the Bane Act. See Estate 1 of Schuck I, 2024 WL 500711, at *12 (“However, … Plaintiffs have failed to state a Bane 2 Act claim against any other Doe Medical Provider because they have not shown that any 3 other Doe Medical Provider acted with reckless disregard to Schuck's right to adequate 4 medical care.”). Consistent with this holding, the Court concludes that Plaintiffs have 5 failed to state a Bane Act claim against Kahl in the SAC because, as explained above, 6 Plaintiffs have not plausibly alleged that Kahl’s actions were objectively unreasonable and 7 deliberately indifferent to Schuck’s right to adequate medical care. In addition, although 8 CHP may be held liable under the Bane Act for acts of its employees, see Gant v. County 9 of Los Angeles, 772 F.3d 608, 623 (9th Cir. 2014) (citing Cal. Gov’t Code § 815.2(a)) 10 (stating “[u]nder California law, public entities are liable for actions of their employees 11 within the scope of employment,” including Bane Act claims), Plaintiffs again have failed 12 to state a Bane Act claim against CHP based on respondeat superior liability because 13 “Plaintiffs have not plausibly alleged that any CHP employee, individually, is liable for 14 violating the Bane Act.” Estate of Schuck I, 2024 WL 500711, at *13. Kahl is the only 15 CHP employee alleged to be liable for Schuck’s death, but as explained, that claim is 16 insufficiently pled. 17 However, consistent with the Court’s previous holding, Plaintiffs do independently 18 state a Bane Act claim against CHP based on the same Fourteenth Amendment violations 19 underlying the Monell claims discussed above. See M.H. v. County of Alameda, 90 F. 20 Supp. 3d 889, 900–01 (N.D. Cal. 2013) (plaintiffs stated a Bane Act claim against a prison 21 health services corporation based on the same allegations of deliberately indifferent 22 practices that sufficiently stated a Monell claim). 23 Accordingly, the Court grants the motion to dismiss Kahl from Count 5, and grants 24 in part the motion to dismiss CHP from Count 5 to the extent the Bane Act claim is based 25 on respondeat superior liability. Dismissal is granted with leave to amend as the 26 deficiencies may be curable. See Intri-Plex Techs., 499 F.3d at 1056. 27 D. Counts 7–9: Negligence and Wrongful Death 28 To state a negligence claim under California law, a plaintiff must allege (1) a legal 1 duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate 2 or legal cause of the resulting harm. Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009). 3 The SAC falls short of plausibly alleging that Kahl breached a duty of care owed to Schuck 4 because, as explained above, Plaintiffs do not allege the contents of the After Visit 5 Summary or that Kahl viewed or had access to Schuck’s jail medical records. The 6 allegations against Kahl are too conclusory to state a negligence claim.2 Similarly, 7 Plaintiffs fail to state a negligence claim against CHP based on respondeat superior liability 8 because Plaintiffs do not sufficiently allege the involvement of Kahl or any CHP employee. 9 However, Plaintiffs continue to adequately allege a negligence claim against CHP 10 based on a negligent training and supervision theory. As the Court previously explained: 11 Plaintiffs’ negligent training and supervision theory is based on the same allegations giving rise to their Monell claims against CHP for its alleged 12 failure to adequately train jail medical staff. As discussed above, Plaintiffs 13 adequately alleged those claims. For the same reasons, the Court finds that Plaintiffs sufficiently allege a negligence claim based on a negligent training 14 and supervision theory. See Estate of Silva v. City of San Diego, No. 18-cv- 15 2282-L, 2020 WL 6946011, at *21 (S.D. Cal. Nov. 25, 2020) (allegations sufficient to state claims based on “deliberate indifference to serious medical 16 needs” are also sufficient to state a claim for negligence). 17 18 Estate of Schuck I, 2024 WL 500711, at *15. The same is true here. 19 Accordingly, the Court grants the motion to dismiss Kahl from the negligence claims 20 in Counts 7 and 9. The Court grants in part the motion to dismiss CHP from the negligence 21 claims in Counts 7 and 9 to the extent they rely on a respondeat superior theory of liability, 22 and otherwise denies the motion to dismiss CHP from the negligence claim based on 23 negligent training and supervision in Counts 8–9. Because amendment would not be futile, 24 the Court dismisses these claims with leave to amend. See Intri-Plex, 499 F.3d at 1056. 25 / / / 26

27 2 Other than incorporating by reference the allegations in the preceding paragraphs (SAC ¶ 262), Count 7 28 I IV. CONCLUSION AND ORDER 2 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 3 Defendants’ motion to dismiss CHP and Defendant Kahl from the SAC. The court 4 || ORDERS as follows: 5 (1) Counts 1-2: The Court GRANTS the motion to dismiss Kahl from the Section 6 1983 individual capacity claims. 7 (2) Counts 3-4: The Court DENIES the motion to dismiss CHP from the Section 8 1983 Monell claims. 9 (3)Count 5: The Court GRANTS the motion to dismiss Kahl from the Bane Act 10 claim; GRANTS IN PART the motion to dismiss CHP to the extent the claim 1] relies on a respondeat superior theory of liability; and otherwise DENIES the 12 motion to dismiss CHP. 13 (4)Counts 7-9: The Court GRANTS the motion to dismiss Kahl from the 14 negligence claims in Counts 7 and 9; GRANTS IN PART the motion to dismiss 15 CHP from the negligence claims in Counts 7 and 9 to the extent they rely on a 16 respondeat superior theory of liability; and DENIES the motion to dismiss CHP 17 from the negligence claim based on negligent training and supervision in Counts 18 8-9. 19 Because the Court finds that amendment would not be futile, the Court grants leave 20 ||to amend. Consistent with the schedule set in the Second Amended Scheduling Order 21 (ECF No. 72), Plaintiffs may file a third amended complaint on or before August 9, 2024, 22 || which cures the pleading deficiencies identified in this Order. 24 || Dated: July 19, 2024 S | J 25 : Hon. Dana M. Sabraw, Chief Judge 26 United States District Court 27 28 12