1 2 3 4 5
7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CASE NO. 20cv1465-LAB-MSB 11 JOSE TREJO, individually and as
successor in interest to JOSE 12 BANDA PICHARDO; SUSANA ORDER GRANTING MOTION TO DISMISS [Dkt. 26] 13 BANDA, individually and as successor in interest to JOSE 14 BANDA PICHARDO; and JOSE 15 TREJO and SUSANA BANDA, as co-representatives of the Estate of 16 JOSE BANDA PICHARDO, 17 Plaintiffs, 18 vs. 19 COUNTY OF IMPERIAL, 20 RAYMOND LOERA, ANDREA KUHLEN, CALIFORNIA FORENSIC 21 MEDICAL GROUP and DOES 2-10, 22 inclusive, and R. BANDA, a minor (nominal defendant), 23 Defendants. 24 25 Jose Banda Pichardo died of suicide while being held at the Imperial 26 County Regional Adult Detention Facility (ICRADF). His father and mother, 27 Jose Trejo and Susan Banda, filed this action individually, as successors-in- 1 “Estate,” and collectively with Trejo and Banda, “Plaintiffs”), against the 2 County of Imperial and several of its alleged agents, including California 3 Forensic Medical Group (“CFMG”), alleging that those defendants were 4 responsible for Pichardo’s death in custody. Plaintiffs’ SAC asserts claims for 5 violations of Pichardo’s and their own Fourteenth Amendment rights, 6 negligence under common law and Cal. Gov. Code § 845.6, and wrongful 7 death. 8 CFMG moves to dismiss four claims against it: three claims under the 9 Fourteenth Amendment and 42 U.S.C. § 1983 along with the negligence claim 10 under Cal. Gov. Code § 845.6. Because the SAC doesn’t allege any policies 11 or practices attributable to CFMG, the Motion is GRANTED as to the 12 Fourteenth Amendment claims, which are DISMISSED WITHOUT 13 PREJUDICE. And because Plaintiffs don’t allege any facts supporting the 14 conclusion that CFMG was a public employee covered by Cal. Gov. Code 15 § 845.6, the Motion is GRANTED as to that claim, too, which is DISMISSED 16 WITHOUT PREJUDICE. 17 BACKGROUND 18 The SAC’s relevant factual allegations and the reasonable inferences 19 that can be drawn in Plaintiffs’ favor are as follows. Pichardo suffered from, 20 and had been diagnosed with, depression, bipolar disorder, anxiety, and 21 schizophrenia. (SAC ¶ 17). He was on a regimen of various prescription drugs 22 for these conditions when he was booked into ICRADF on October 27, 2018. 23 (Id. ¶¶ 15, 18). 24 At ICRADF, Pichardo would be in the County’s custody and subject to 25 policies issued by Raymond Loera, Sheriff of Imperial County. (See id. ¶ 8). 26 Loera’s office and another Imperial County agency had entered into a 27 Memorandum of Understanding regarding assessment and treatment of 1 June 20, 2018, before Pichardo arrived. (Id. ¶¶ 24–26). It indicated that certain 2 County agents must “[s]hadow CFMG staff on a weekly basis to familiarize 3 self with possible referrals” and “[r]eport significant observations of an inmate 4 to CFMG staff to assist in CFMG’s determination for suitability of booking.” (Id. 5 ¶ 27(b)). 6 As part of the booking process, someone—possibly an agent of CFMG 7 making a “determination for suitability of booking”—conducted a medical and 8 psychological screening. (Id. ¶¶ 19, 27(b)). After those screenings, Pichardo 9 “was refused his medication and was placed in the general population without 10 any designation regarding his medical condition that would alert those in 11 charge of his care that he required monitoring, medical treatment, 12 psychological treatment, and follow-up care.” (Id. ¶ 19). 13 At some point after booking, deputies at ICRADF refused Trejo’s request 14 to bring Pichardo his medication. (Id. ¶ 20). Pichardo complained of 15 hallucinations and asked for his medication; ICRADF guards didn’t heed this 16 request or otherwise get help. (Id. ¶ 21). On or about February 23, 2019, 17 Pichardo died of suicide by hanging in his cell. (Id. ¶¶ 22–23). 18 CFMG moves to dismiss claims that it caused a deprivation of Plaintiffs’ 19 constitutional rights because, it argues, the SAC fails to allege any policy or 20 custom attributable to CFMG that caused such a deprivation. It also moves to 21 dismiss a negligence claim under Cal. Gov. Code § 845.6 because that statute 22 applies only to public entities and public employees, while CFMG contends 23 that it was an independent contractor. 24 STANDARD OF REVIEW 25 A Rule 12(b)(6) motion to dismiss calls for a preliminary evaluation of a 26 party’s pleading and tests only whether the pleading provides “a short and 27 plain statement of the claim showing that the pleader is entitled to relief, in 1 upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 2 (internal marks and citation omitted). The pleading must allege facts: “a 3 plaintiff’s obligation to provide the grounds of his entitlement to relief requires 4 more than labels and conclusions, and a formulaic recitation of the elements 5 of a cause of action will not do.” Id. 6 DISCUSSION 7 I. The SAC fails to allege any policies or practices attributable to 8 CFMG to support its Fourteenth Amendment claims 9 Plaintiffs’ first through third causes of action attempt to impose liability 10 on CFMG for violation of their Fourteenth Amendment rights under 42 U.S.C. 11 § 1983. That section imposes liability “only on those who shall subject, or 12 cause to be subjected, any person . . . to the deprivations of any [constitutional] 13 right.” Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir. 1993) (cleaned up), 14 citing Monell v. Department of Social Services, 436 U.S. 658, 691–2 (1978). 15 This language doesn’t leave room for “imposit[ion of] liability vicariously on 16 employers or supervisors solely on the basis of the existence of an employer- 17 employee relationship with a tortfeasor.” Id., citing Monell, 436 U.S. at 692. 18 Because an entity like CFMG necessarily acts through individuals, Plaintiffs 19 can only hold CFMG liable under § 1983 by alleging and proving that CFMG 20 had a policy or custom that caused an individual to violate their constitutional 21 rights. Monell, 436 U.S. at 690–91. 22 The SAC doesn’t allege any policy or custom attributable to CFMG. The 23 only policy it alleges is embodied in an MOU between the Imperial County 24 Sheriff’s Office and another Imperial County agency, a document that expired 25 before Pichardo arrived at ICRADF. (SAC ¶¶ 24, 26). And while Plaintiffs point 26 the Court to several other paragraphs in the SAC, (see Dkt. 32 at 5), none of 27 those paragraphs suffices to support the Fourteenth Amendment claims 1 policies or customs. (SAC ¶¶ 19–21). Another alleges that the MOU policies, 2 which aren’t directed to CFMG or its employees, were ignored in Pichardo’s 3 case. (Id. ¶ 28). The remainder are wholly conclusory, without any supporting 4 factual allegations. (Id. ¶¶ 30–32, 37–40, 42–45). And none allege any facts 5 involving CFMG. (Id. ¶¶ 19–21, 28, 30–32, 37–40, 42–45). 6 Because the SAC doesn’t allege any policies or customs attributable to 7 CFMG, it doesn’t allege any facts supporting a claim that CFMG caused a 8 deprivation of Plaintiffs’ constitutional rights. The Motion is GRANTED as to 9 the first, second, and third causes of action against CFMG.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5
7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CASE NO. 20cv1465-LAB-MSB 11 JOSE TREJO, individually and as
successor in interest to JOSE 12 BANDA PICHARDO; SUSANA ORDER GRANTING MOTION TO DISMISS [Dkt. 26] 13 BANDA, individually and as successor in interest to JOSE 14 BANDA PICHARDO; and JOSE 15 TREJO and SUSANA BANDA, as co-representatives of the Estate of 16 JOSE BANDA PICHARDO, 17 Plaintiffs, 18 vs. 19 COUNTY OF IMPERIAL, 20 RAYMOND LOERA, ANDREA KUHLEN, CALIFORNIA FORENSIC 21 MEDICAL GROUP and DOES 2-10, 22 inclusive, and R. BANDA, a minor (nominal defendant), 23 Defendants. 24 25 Jose Banda Pichardo died of suicide while being held at the Imperial 26 County Regional Adult Detention Facility (ICRADF). His father and mother, 27 Jose Trejo and Susan Banda, filed this action individually, as successors-in- 1 “Estate,” and collectively with Trejo and Banda, “Plaintiffs”), against the 2 County of Imperial and several of its alleged agents, including California 3 Forensic Medical Group (“CFMG”), alleging that those defendants were 4 responsible for Pichardo’s death in custody. Plaintiffs’ SAC asserts claims for 5 violations of Pichardo’s and their own Fourteenth Amendment rights, 6 negligence under common law and Cal. Gov. Code § 845.6, and wrongful 7 death. 8 CFMG moves to dismiss four claims against it: three claims under the 9 Fourteenth Amendment and 42 U.S.C. § 1983 along with the negligence claim 10 under Cal. Gov. Code § 845.6. Because the SAC doesn’t allege any policies 11 or practices attributable to CFMG, the Motion is GRANTED as to the 12 Fourteenth Amendment claims, which are DISMISSED WITHOUT 13 PREJUDICE. And because Plaintiffs don’t allege any facts supporting the 14 conclusion that CFMG was a public employee covered by Cal. Gov. Code 15 § 845.6, the Motion is GRANTED as to that claim, too, which is DISMISSED 16 WITHOUT PREJUDICE. 17 BACKGROUND 18 The SAC’s relevant factual allegations and the reasonable inferences 19 that can be drawn in Plaintiffs’ favor are as follows. Pichardo suffered from, 20 and had been diagnosed with, depression, bipolar disorder, anxiety, and 21 schizophrenia. (SAC ¶ 17). He was on a regimen of various prescription drugs 22 for these conditions when he was booked into ICRADF on October 27, 2018. 23 (Id. ¶¶ 15, 18). 24 At ICRADF, Pichardo would be in the County’s custody and subject to 25 policies issued by Raymond Loera, Sheriff of Imperial County. (See id. ¶ 8). 26 Loera’s office and another Imperial County agency had entered into a 27 Memorandum of Understanding regarding assessment and treatment of 1 June 20, 2018, before Pichardo arrived. (Id. ¶¶ 24–26). It indicated that certain 2 County agents must “[s]hadow CFMG staff on a weekly basis to familiarize 3 self with possible referrals” and “[r]eport significant observations of an inmate 4 to CFMG staff to assist in CFMG’s determination for suitability of booking.” (Id. 5 ¶ 27(b)). 6 As part of the booking process, someone—possibly an agent of CFMG 7 making a “determination for suitability of booking”—conducted a medical and 8 psychological screening. (Id. ¶¶ 19, 27(b)). After those screenings, Pichardo 9 “was refused his medication and was placed in the general population without 10 any designation regarding his medical condition that would alert those in 11 charge of his care that he required monitoring, medical treatment, 12 psychological treatment, and follow-up care.” (Id. ¶ 19). 13 At some point after booking, deputies at ICRADF refused Trejo’s request 14 to bring Pichardo his medication. (Id. ¶ 20). Pichardo complained of 15 hallucinations and asked for his medication; ICRADF guards didn’t heed this 16 request or otherwise get help. (Id. ¶ 21). On or about February 23, 2019, 17 Pichardo died of suicide by hanging in his cell. (Id. ¶¶ 22–23). 18 CFMG moves to dismiss claims that it caused a deprivation of Plaintiffs’ 19 constitutional rights because, it argues, the SAC fails to allege any policy or 20 custom attributable to CFMG that caused such a deprivation. It also moves to 21 dismiss a negligence claim under Cal. Gov. Code § 845.6 because that statute 22 applies only to public entities and public employees, while CFMG contends 23 that it was an independent contractor. 24 STANDARD OF REVIEW 25 A Rule 12(b)(6) motion to dismiss calls for a preliminary evaluation of a 26 party’s pleading and tests only whether the pleading provides “a short and 27 plain statement of the claim showing that the pleader is entitled to relief, in 1 upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 2 (internal marks and citation omitted). The pleading must allege facts: “a 3 plaintiff’s obligation to provide the grounds of his entitlement to relief requires 4 more than labels and conclusions, and a formulaic recitation of the elements 5 of a cause of action will not do.” Id. 6 DISCUSSION 7 I. The SAC fails to allege any policies or practices attributable to 8 CFMG to support its Fourteenth Amendment claims 9 Plaintiffs’ first through third causes of action attempt to impose liability 10 on CFMG for violation of their Fourteenth Amendment rights under 42 U.S.C. 11 § 1983. That section imposes liability “only on those who shall subject, or 12 cause to be subjected, any person . . . to the deprivations of any [constitutional] 13 right.” Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir. 1993) (cleaned up), 14 citing Monell v. Department of Social Services, 436 U.S. 658, 691–2 (1978). 15 This language doesn’t leave room for “imposit[ion of] liability vicariously on 16 employers or supervisors solely on the basis of the existence of an employer- 17 employee relationship with a tortfeasor.” Id., citing Monell, 436 U.S. at 692. 18 Because an entity like CFMG necessarily acts through individuals, Plaintiffs 19 can only hold CFMG liable under § 1983 by alleging and proving that CFMG 20 had a policy or custom that caused an individual to violate their constitutional 21 rights. Monell, 436 U.S. at 690–91. 22 The SAC doesn’t allege any policy or custom attributable to CFMG. The 23 only policy it alleges is embodied in an MOU between the Imperial County 24 Sheriff’s Office and another Imperial County agency, a document that expired 25 before Pichardo arrived at ICRADF. (SAC ¶¶ 24, 26). And while Plaintiffs point 26 the Court to several other paragraphs in the SAC, (see Dkt. 32 at 5), none of 27 those paragraphs suffices to support the Fourteenth Amendment claims 1 policies or customs. (SAC ¶¶ 19–21). Another alleges that the MOU policies, 2 which aren’t directed to CFMG or its employees, were ignored in Pichardo’s 3 case. (Id. ¶ 28). The remainder are wholly conclusory, without any supporting 4 factual allegations. (Id. ¶¶ 30–32, 37–40, 42–45). And none allege any facts 5 involving CFMG. (Id. ¶¶ 19–21, 28, 30–32, 37–40, 42–45). 6 Because the SAC doesn’t allege any policies or customs attributable to 7 CFMG, it doesn’t allege any facts supporting a claim that CFMG caused a 8 deprivation of Plaintiffs’ constitutional rights. The Motion is GRANTED as to 9 the first, second, and third causes of action against CFMG. Those claims are 10 DISMISSED WITHOUT PREJUDICE. 11 II. California Government Code § 845.6 is Inapplicable because CFMG 12 is a Private Contractor 13 Plaintiffs’ sixth cause of action asserts that CFMG violated Cal. Gov. 14 Code § 845.6. Under that statute, “a public employee, and the public entity 15 where the employee is acting within the scope of his employment, is liable if 16 the employee knows or has reason to know that [a] prisoner is in need of 17 immediate medical care and he fails to take reasonable action to summon 18 such medical care.” Id. 19 CFMG isn’t a public entity—it’s a California corporation.1 (See Dkt. 33-1 20 Ex. A); see also Lawson v. Superior Court, 180 Cal. App. 4th 1372, 1397 21 (2010) (A “[p]rivate entity working under contract for the State” is not a “public 22 entity” for purposes of California Tort Claims Act, Gov. Code § 801 et seq.). 23 And the Court can’t credit Plaintiffs’ conclusory allegation that CFMG was an 24 employee of the County without factual support. (SAC ¶ 12); Duffey v. Tender 25 Heart Home Care Agency, LLC, 31 Cal. App. 5th 232, 242 n.7 (2019) 26 (“[W]hether [a party] was an employee is a legal conclusion, not a fact.”); 27 1 The Court takes judicial notice of the California Secretary of State’s 1 || Twombly, 550 U.S. at 555. 2 Because the SAC doesn't allege facts that, if proven, would establish 3 || that CFMG is a “public entity” or a “public employee,” the Motion is GRANTED 4 ||as to its claim under Cal. Gov. Code § 845.6. That claim is DISMISSED. 5 || CFMG doesn't point to any allegations or authority that foreclose the possibility 6 || that it was an employee, though, so the dismissal is WITHOUT PREJUDICE. 7 CONCLUSION 8 The Second Amended Complaint’s cursory allegations regarding CFMG 9 || fail to allege either that: 1) CFMG was responsible for a policy or custom that 10 || caused Plaintiffs’ constitutional injuries; or 2) CFMG was a public entity or 11 ||} employee covered by Cal. Gov. Code § 845.6. Without those allegations, 12 || Plaintiffs can’t sustain claims under that California statute or 42 U.S.C. § 1982. 13 || The Motion is GRANTED, and Plaintiffs’ first, second, third, and sixth claims 14 || against CFMG are DISMISSED WITHOUT PREJUDICE. 15 IT IS SO ORDERED. 16 || Dated: March 21, 2022 lau A: (Aywy 17 HON. LARRY ALAN BURNS 13 United States District Judge
19 20 21 22 23 24 25 26 27 28