1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KATRINA MCGINNIS, Case No. 22-cv-06632-SI
8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS
10 COUNTY OF SONOMA, et al., Re: Dkt. No. 31 11 Defendants.
12 13 14 Defendant County of Sonoma’s motion to dismiss the second amended complaint was 15 scheduled for a hearing on June 2, 2023. Pursuant to Civil Local Rule 7-1(b), the Court determined 16 that the matter is appropriate for resolution without oral argument and VACATED the hearing. For 17 the reasons set forth below, the Court GRANTS the County’s motion to dismiss the second cause 18 of action as duplicative. McGinnis shall file a third amended complaint consistent with this order no later than June 13, 2023. 19
20 DISCUSSION 21 In an order filed March 30, 2023, the Court ruled on defendants’ motion to dismiss the first 22 amended complaint. The Court (1) dismissed defendants Sheriff Essick and the Sheriff’s 23 Department; (2) instructed McGinnis to clarify the constitutional bases of the first and second causes 24 of action – both brought against the County under 42 U.S.C. § 1983 and Monell v. Dep’t of Social 25 Servs., 436 U.S. 658 (1978) – as well as the capacities in which those causes of action were brought; 26 and (3) held that the Monell allegations were insufficient to state a claim. Dkt. No. 25. As to the 27 1 first and second causes of action based on a violation of her own rights as the mother of the decedent 2 Amber Marcotte, or as a survivorship claim based on a violation of Marcotte’s rights. The Court 3 also noted that the complaint was unclear regarding whether both causes of action alleged a violation 4 of McGinnis’s Fourteenth Amendment right to familial association. The Court informed McGinnis: 5 Further, because the first cause of action asserts Monell liability based on policies and practices and is brought pursuant to the Fourteenth Amendment alleging a 6 violation of McGinnis’s rights to familial association, if the second cause of action is also brought pursuant to the Fourteenth Amendment based on a deprivation of 7 familial association, it is not clear to the Court that there is a meaningful difference between the first and second causes of action as they relate to the County. If in fact 8 the first and second causes of action are duplicative, McGinnis should consolidate those allegations into one cause of action. 9 Id. at 3-4. The Court granted McGinnis leave to amend. 10 On April 14, 2023, McGinnis filed a second amended complaint (“SAC”). Dkt. No. 27.1 As 11 with the prior complaint, the SAC asserts two causes of action against the County. In the 12 introduction, the SAC states that McGinnis brings this case “for loss of familial association” and 13 that McGinnis seeks damages from defendants “for violating her Fourteenth Amendment rights.” 14 Id. at p. 1. The first cause of action is titled “Violation of Plaintiff’s Fourteenth Amendment 15 [Rights]” and “Loss of Familial Association,” id. at p. 16, and alleges that the County violated 16 Marcotte’s rights in violation of Monell. The second cause of action is titled “Unconstitutional 17 Custom, Practice or Policy” and states that it is “Brought by Katrina McGinnis in her Individual 18 Capacity.” Id. at p. 19. The second cause of action does not identify a constitutional basis for the 19 claim, but does allege that as a result of the County’s unconstitutional policies and practices, 20 McGinnis has “experienced severe pain and suffering as a result of the loss of Ms. Marcotte’s life” 21 and that McGinnis “has also been deprived of the life-long love, companionship, comfort, support, 22 society, care, and sustenance of Decedent and will continue to be so deprived for the remainder of 23 her natural life.” Id. ¶¶ 89, 91. 24 The County moves to dismiss the second cause of action as duplicative, arguing that both 25 causes of action are brought by McGinnis in her own capacity and assert violations of McGinnis’s 26
27 1 Notably, the SAC still lists Sheriff Essick and the Sheriff’s Department as defendants. To 1 right to familial association. 2 McGinnis disagrees and describes the two causes of action as follows: 3 [B]oth Plaintiff’s first and second causes of action are different and each stand alone. Plaintiff’s first cause of action is for loss of familial association. Loss of familial 4 association claims are derivative claims tied to those of a decedent – Ms. MCGINNIS’ daughter, Amber Marcotte, in this case. Plaintiff’s second cause of 5 action is a Monell claim brought in her individual capacity. 6 Opp’n at 1 (Dkt. No. 32). McGinnis cites various cases for the proposition that claims for loss of 7 familial association are “derivative” claims that arise from an underlying “primary” constitutional 8 violation. See, e.g., Smith v. City of Fontana, 818 F.2d 1411, 1420 (9th Cir. 1987) (“Therefore, the 9 same allegation of excessive force giving rise to Mr. Smith’s substantive due process claim based 10 on his loss of life also gives the children a substantive due process claim based on their loss of his 11 companionship.”), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th 12 Cir. 1999); Rucker v. Harford Cnty., Md., 946 F.2d 278, 279 (4th Cir. 1991) (“[I]f there be any 13 constitutional right in one other than a person so injured arising from their intimate familial 14 relationship, the one alleged here could only be a derivative right which fails with failure of the 15 primary claim.”). McGinnis argues that the first cause of action “references Amber Marcotte’s 16 constitutional claim as the basis (i.e., the tether) for Plaintiff’s derivative claim” and that the first 17 cause of action “is not itself a Monell claim – it is a loss of familial association claim referencing a 18 violation of Ms. Marcotte’s rights under Monell.” Opp’n at 2-3. McGinnis argues that, in contrast, 19 the second cause of action “is a Monell claim brought by Plaintiff in her individual capacity.” Id. at 20 3. 21 There are several problems with McGinnis’s arguments. First, McGinnis confuses the 22 concepts of “derivative” versus “primary” constitutional claims with the related – but distinct – issue 23 of whether a family member is bringing a claim for a violation of his/her own right to familial 24 association versus a survivorship action (which must satisfy state law rules regarding who can bring 25 survivorship actions). “Under § 1983, a decedent’s survivors may bring a claim for the violation of 26 their substantive constitutional rights or those of the decedent.” Cotta v. Cnty of Kings, 79 F. Supp. 27 3d 1148, 1158 (E.D. Cal. 2015), rev’d in part on other grounds, 686 Fed. App’x. 467 (9th Cir. Apr. 1 familial association was violated by the unconstitutional death of her child. Such a claim is brought 2 in the parent’s own capacity and is not a survivorship action. See Kelson v. City of Springfield, 767 3 F.2d 651, 653 n.2 (9th Cir. 1985) (“The Kelsons do not sue in their representative capacity on behalf 4 of Brian’s estate, nor do they argue that their familial relationship affords them the right to sue on 5 his behalf. Instead, they assert a violation of their parental rights and seek damages to compensate 6 them for loss of their son’s companionship and for their own mental distress.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KATRINA MCGINNIS, Case No. 22-cv-06632-SI
8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS
10 COUNTY OF SONOMA, et al., Re: Dkt. No. 31 11 Defendants.
12 13 14 Defendant County of Sonoma’s motion to dismiss the second amended complaint was 15 scheduled for a hearing on June 2, 2023. Pursuant to Civil Local Rule 7-1(b), the Court determined 16 that the matter is appropriate for resolution without oral argument and VACATED the hearing. For 17 the reasons set forth below, the Court GRANTS the County’s motion to dismiss the second cause 18 of action as duplicative. McGinnis shall file a third amended complaint consistent with this order no later than June 13, 2023. 19
20 DISCUSSION 21 In an order filed March 30, 2023, the Court ruled on defendants’ motion to dismiss the first 22 amended complaint. The Court (1) dismissed defendants Sheriff Essick and the Sheriff’s 23 Department; (2) instructed McGinnis to clarify the constitutional bases of the first and second causes 24 of action – both brought against the County under 42 U.S.C. § 1983 and Monell v. Dep’t of Social 25 Servs., 436 U.S. 658 (1978) – as well as the capacities in which those causes of action were brought; 26 and (3) held that the Monell allegations were insufficient to state a claim. Dkt. No. 25. As to the 27 1 first and second causes of action based on a violation of her own rights as the mother of the decedent 2 Amber Marcotte, or as a survivorship claim based on a violation of Marcotte’s rights. The Court 3 also noted that the complaint was unclear regarding whether both causes of action alleged a violation 4 of McGinnis’s Fourteenth Amendment right to familial association. The Court informed McGinnis: 5 Further, because the first cause of action asserts Monell liability based on policies and practices and is brought pursuant to the Fourteenth Amendment alleging a 6 violation of McGinnis’s rights to familial association, if the second cause of action is also brought pursuant to the Fourteenth Amendment based on a deprivation of 7 familial association, it is not clear to the Court that there is a meaningful difference between the first and second causes of action as they relate to the County. If in fact 8 the first and second causes of action are duplicative, McGinnis should consolidate those allegations into one cause of action. 9 Id. at 3-4. The Court granted McGinnis leave to amend. 10 On April 14, 2023, McGinnis filed a second amended complaint (“SAC”). Dkt. No. 27.1 As 11 with the prior complaint, the SAC asserts two causes of action against the County. In the 12 introduction, the SAC states that McGinnis brings this case “for loss of familial association” and 13 that McGinnis seeks damages from defendants “for violating her Fourteenth Amendment rights.” 14 Id. at p. 1. The first cause of action is titled “Violation of Plaintiff’s Fourteenth Amendment 15 [Rights]” and “Loss of Familial Association,” id. at p. 16, and alleges that the County violated 16 Marcotte’s rights in violation of Monell. The second cause of action is titled “Unconstitutional 17 Custom, Practice or Policy” and states that it is “Brought by Katrina McGinnis in her Individual 18 Capacity.” Id. at p. 19. The second cause of action does not identify a constitutional basis for the 19 claim, but does allege that as a result of the County’s unconstitutional policies and practices, 20 McGinnis has “experienced severe pain and suffering as a result of the loss of Ms. Marcotte’s life” 21 and that McGinnis “has also been deprived of the life-long love, companionship, comfort, support, 22 society, care, and sustenance of Decedent and will continue to be so deprived for the remainder of 23 her natural life.” Id. ¶¶ 89, 91. 24 The County moves to dismiss the second cause of action as duplicative, arguing that both 25 causes of action are brought by McGinnis in her own capacity and assert violations of McGinnis’s 26
27 1 Notably, the SAC still lists Sheriff Essick and the Sheriff’s Department as defendants. To 1 right to familial association. 2 McGinnis disagrees and describes the two causes of action as follows: 3 [B]oth Plaintiff’s first and second causes of action are different and each stand alone. Plaintiff’s first cause of action is for loss of familial association. Loss of familial 4 association claims are derivative claims tied to those of a decedent – Ms. MCGINNIS’ daughter, Amber Marcotte, in this case. Plaintiff’s second cause of 5 action is a Monell claim brought in her individual capacity. 6 Opp’n at 1 (Dkt. No. 32). McGinnis cites various cases for the proposition that claims for loss of 7 familial association are “derivative” claims that arise from an underlying “primary” constitutional 8 violation. See, e.g., Smith v. City of Fontana, 818 F.2d 1411, 1420 (9th Cir. 1987) (“Therefore, the 9 same allegation of excessive force giving rise to Mr. Smith’s substantive due process claim based 10 on his loss of life also gives the children a substantive due process claim based on their loss of his 11 companionship.”), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th 12 Cir. 1999); Rucker v. Harford Cnty., Md., 946 F.2d 278, 279 (4th Cir. 1991) (“[I]f there be any 13 constitutional right in one other than a person so injured arising from their intimate familial 14 relationship, the one alleged here could only be a derivative right which fails with failure of the 15 primary claim.”). McGinnis argues that the first cause of action “references Amber Marcotte’s 16 constitutional claim as the basis (i.e., the tether) for Plaintiff’s derivative claim” and that the first 17 cause of action “is not itself a Monell claim – it is a loss of familial association claim referencing a 18 violation of Ms. Marcotte’s rights under Monell.” Opp’n at 2-3. McGinnis argues that, in contrast, 19 the second cause of action “is a Monell claim brought by Plaintiff in her individual capacity.” Id. at 20 3. 21 There are several problems with McGinnis’s arguments. First, McGinnis confuses the 22 concepts of “derivative” versus “primary” constitutional claims with the related – but distinct – issue 23 of whether a family member is bringing a claim for a violation of his/her own right to familial 24 association versus a survivorship action (which must satisfy state law rules regarding who can bring 25 survivorship actions). “Under § 1983, a decedent’s survivors may bring a claim for the violation of 26 their substantive constitutional rights or those of the decedent.” Cotta v. Cnty of Kings, 79 F. Supp. 27 3d 1148, 1158 (E.D. Cal. 2015), rev’d in part on other grounds, 686 Fed. App’x. 467 (9th Cir. Apr. 1 familial association was violated by the unconstitutional death of her child. Such a claim is brought 2 in the parent’s own capacity and is not a survivorship action. See Kelson v. City of Springfield, 767 3 F.2d 651, 653 n.2 (9th Cir. 1985) (“The Kelsons do not sue in their representative capacity on behalf 4 of Brian’s estate, nor do they argue that their familial relationship affords them the right to sue on 5 his behalf. Instead, they assert a violation of their parental rights and seek damages to compensate 6 them for loss of their son’s companionship and for their own mental distress. Therefore, the 7 survivability of a civil rights action is not at issue in the instant case.”).2 The cases cited by 8 McGinnis explain that when a family member brings a claim for a violation of his/her right to 9 familial association based on the death of a family member, the family member can only prevail on 10 the familial association claim by proving that the death of the family member was unconstitutional. 11 Thus, the first cause of action alleging that the County has violated McGinnis’s right to familial 12 association is – and can only be – brought in McGinnis’s individual capacity, and to prevail on that 13 claim McGinnis must show, among other things, that the death of her daughter was unconstitutional. 14 The second problem with McGinnis’s arguments is that she incorrectly asserts that the first 15 cause of action “is not itself a Monell claim.” However, the only remaining non-Doe defendant is 16 the County, and the only way to hold a municipality liable under 42 U.S.C. § 1983 is pursuant to 17 Monell. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (Citing Monell and stating “Plaintiffs 18 who seek to impose liability on local governments under § 1983 must prove that ‘action pursuant to 19 official municipal policy’ caused their injury.”). McGinnis cites Garcia v. County of Napa, No. 21- 20 CV-03519-HSG, 2022 WL 110650, at *2 (N.D. Cal. Jan. 12, 2022), for the proposition that “A 21 plaintiff can bring both a loss of familial association claim and a Monell claim arising from a loved- 22 one’s death.” Opp’n at 3.3 While that is correct as a general matter, if a plaintiff seeks to hold a 23 2 The County’s reply asserts that McGinnis’s opposition makes “clear that her second cause 24 of action is not based on ‘familial’ relationships but is a direct claim for her own damages arising out of her daughter Amber Marcotte’s death” and that “[a]s such, Plaintiff seeks to assert a wrongful 25 death claim,” which the County contends McGinnis cannot do. However, a parent’s claim for loss of familial association is a claim for the parent’s own damages arising from the death of his/her 26 child. See Kelson, 767 F.2d at 653 n.2 (parents’ claim for violation of familial association sought damages “to compensate them for loss of their son’s companionship and for their own mental 27 distress”). 1 municipality liable for loss of familial association, such a claim must be brought pursuant to Monell. 2 Cf. Schwartz v. Lassen Cnty. ex rel. Lassen Cnty. Jail (Det. Facility), 838 F. Supp. 2d 1045, 1058 3 (E.D. Cal. 2012) (denying motion to dismiss Monell claim brought by decedent’s mother against 4 || Lassen County alleging loss of her son’s companionship.”). 5 The first and second causes of action are brought in McGinnis’s individual capacity and 6 allege the same constitutional injury against the same municipal defendant, and thus the causes of 7 action are duplicative. However, the specific allegations contained in the two causes of action are 8 || not entirely identical, and it is not obvious to the Court whether any of the differences are 9 |} meaningful. As such, the Court GRANTS the County’s motion and directs McGinnis to file a third 10 amended complaint asserting a single cause of action pursuant to Monell alleging that the County 11 has violated McGinnis’s right to familial association based on the unconstitutional death of her 12 || daughter. The single cause of action shall combine, in a non-duplicative manner, the allegations of 13 the first and second causes of action of the SAC, and shall not list Sheriff Essick or the □□□□□□□□ 14 || Department as defendants. The third amended complaint must be filed no later than June 13, 2023.
a 16 CONCLUSION 3 17 For the reasons stated above, the Court GRANTS the County’s motion to dismiss and directs 18 McGinnis to file a third amended complaint consistent with this order no later than June 13, 2023. 19 20 IT IS SO ORDERED. 21 Dated: June 6, 2023 > NM □ ier 22 United States District Judge 23 24 25 26 27 28 solely against individual defendants, while the Monell claims were brought against the County. See Dkt. No. 18 in Garcia, Case No. 21-03519 HSG.