Marisol Vivanco v. Cdcr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2020
• Docket: 19-16490
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARISOL VIVANCO, Individually and as No. 19-16490 Successor in Interest of Solton Vivanco Gonzalez, deceased, D.C. No. 1:17-cv-00434-BAM

Plaintiff-Appellant, MEMORANDUM * P0FP0F P

v.

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; SCOTT FRAUENHEIM, Warden,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Barbara McAuliffe, Magistrate Judge, Presiding

Submitted July 15, 2020* * P P1FP1F P

San Francisco, California

Before: SILER,** * TALLMAN, and LEE, Circuit Judges. P P2FP2F P

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Marisol Vivanco appeals from the district court’s order granting summary

judgment for the California Department of Corrections and Scott Frauenheim, the

Pleasant Valley State Prison warden. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s grant of summary judgment. Devereaux v.

Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). We affirm.

1. Eighth Amendment Claim. There is no evidence in the record that

Frauenheim, or any CDCR staff, knew of decedent Solton Gonzalez’s heightened

risk of suicide and was deliberately indifferent to it. See Estelle v. Gamble, 429 U.S. 15T 15T

97, 104 (1976). Two days before his suicide, Gonzalez reported that his depression

was at a 4/10, and CDCR Staff Psychologist Dr. Lee noted that he did not exhibit

suicidal thoughts or behaviors. The day before Gonzalez’s suicide, Dr. Lee again

reported that Gonzalez did not exhibit suicidal thoughts or behaviors. While CDCR

staff knew of Gonzalez’s prior suicide attempts, those suicide attempts occurred in

2012 and 2014.

In addition, Vivanco stipulated that Pleasant Valley State Prison’s policies

and procedures complied with the court’s orders in Coleman v. Brown, 28 F. Supp.

3d 1068 (E.D. Cal. 2014). It is also undisputed that Frauenheim consulted with

mental health professionals and considered Gonzalez’s mental health when deciding

he should remain in short-term restricted housing. See Peralta v. Dillard, 744 F.3d

1076, 1086–87 (9th Cir. 2014) (en banc) (concluding that prison administrator

2 relying on treatment plan signed off on by medical officials was not aware of risk of

harm).

2. Fourteenth Amendment Claim. There is no evidence that Frauenheim

acted arbitrarily or with deliberate indifference that shocks the conscience. See

County of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998). Vivanco stipulated

that Frauenheim complied with Coleman. Vivanco also stipulated that she had “no

evidence to support her claim that Defendant Frauenheim’s conduct was motivated

by a purpose to cause harm to [decedent] unrelated to his incarceration.”

3. State Law Claim. Under California law, a public employee is liable for

failing to obtain medical care “if the employee knows or has reason to know that the

prisoner is in need of immediate medical care and he fails to take reasonable action

to summon such medical care.” Cal. Gov. Code § 845.6. Vivanco’s arguments

involve CDCR staff’s decisions about Gonzalez’s care, not a failure to summon care.

See Castaneda v. Dep’t of Corr. & Rehab., 151 Cal. Rptr. 3d 648, 663–64 (2013).

4. Doe Defendants. Because Vivanco did not amend her complaint to name

the Doe defendants or serve the unknown defendants, the district court properly

exercised its authority to dismiss the Doe defendants sua sponte. See Craig v. United

States, 413 F.2d 854, 856 (9th Cir. 1969); see also Bryant v. Ford Motor Co., 886

F.2d 1526, 1532–33 (9th Cir. 1989) (rejecting argument that “action against the doe

3 defendants was still pending when the district court entered summary judgment

against” the named defendant).

AFFIRMED.