5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 6 7 JACOB WRIGHT, KHRYSTYNE No. 2-15-cv-02671-TLN-CKD 8 WRIGHT and JONATHAN WRIGHT, as 9 successors in interest of DANIEL LEE WRIGHT (deceased); JACOB WRIGHT, 10 individually; KHRYSTYNE WRIGHT, ORDER DENYING IN PART AND individually; and JONATHAN WRIGHT, GRANTING IN PART WITH LEAVE TO 11 individually, AMEND DEFENDANTS’ MOTION TO DISMISS AND MOTION FOR JUDGMENT 12 Plaintiffs, ON THE PLEADINGS. 13 v. 14 AMBER DUNNE; DR. JOHN PONDER; 15 DANA M. KERNAN; DR. SHELDON SUSKAUER; DR. PAULA NEWMAN; 16 DR. SCOTT A. HEATLEY; DAVID SMILEY; JOE A. LIZARRAGA; DOE 1; 17 AND DOE 2, 18 Defendants. 19 20 21 This matter is before the Court on Defendants Dana M. Kernan (“Kernan”) and Joe A. 22 Lizarraga’s (“Lizarraga”) Motion to Dismiss Plaintiffs’ Second Amended Complaint (“SAC”) 23 (ECF No. 33) under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and Defendants Amber 24 Dunne (“Dunne”), Dr. John Ponder (“Ponder”), Dr. Sheldon Suskauer (“Suskauer”), Dr. Paula 25 Newman (“Newman”), Dr. Scott A. Heatley (“Heatley”), and David Smiley’s (“Smiley”) Motion 26 for Judgement on the Pleadings (ECF No.34) under Rule 12(c). Defendants are employees of the 27 California Department of Corrections and Rehabilitation at Mule Creek State Prison (“MCSP”). 28 (ECF Nos. 33 & 34.) Plaintiffs Jacob Wright, Khrystyne Wright, and Jonathan Wright (together 1 “Plaintiffs”), each in his or her individual capacity and collectively as successors in interest of 2 decedent Daniel Lee Wright (“Decedent”) filed an opposition to the motion to dismiss (ECF No. 3 35) and to the motion for judgment on the pleadings (ECF No. 36). Defendants filed 4 corresponding replies in support of their respective motions. (ECF No. 38 and 39, respectively.) 5 For the reasons discussed below, the Court GRANTS in part and DENIES in part 6 Defendants Kernan and Lizarraga’s motion to dismiss and GRANTS in part and DENIES in part 7 Defendants Dunne, Ponder, Suskauer, Newman, Heatley, and Smiley’s motion for judgement on 8 the pleadings. 9 I. FACTUAL AND PROCEDURAL BACKGROUND 10 Decedent was a state prisoner at MCSP and died as a result of suicide on November 2, 11 2014. (ECF No. 27 at ¶ 3.) Decedent’s three children, his successors in interest, brought this 12 lawsuit against several California Department of Corrections and Rehabilitation (“CDCR”) 13 employees for failing to prevent Decedent’s suicide despite Decedent’s history of suicide 14 attempts and suicide risk. (Id. at ¶ 5.) Plaintiffs assert that Decedent attempted to hang himself in 15 the three months prior to his death and that Decedent had not taken his prescribed medication for 16 at least three days prior to his death. (Id. at ¶ 3.) Yet, according to Plaintiffs, no precautions were 17 taken by Defendants to prevent Decedent’s suicide and he was allowed to remain alone and 18 unmonitored in his cell for at least two and a half hours on November 2, 2014, allowing him the 19 opportunity to hang himself. (Id.) Decedent had a long-documented history of mental illness — 20 including diagnoses of severe depression and bi-polar disorder and a history of multiple suicide 21 attempts, self-harming behavior, and suicidal ideations — which was known to MCSP 22 correctional, medical, and mental health staff. (Id. at ¶ 22.) 23 Plaintiffs’ SAC alleges Decedent’s suicide resulted from Defendants’ failure to implement 24 “[a]ccepted and proven suicide prevention protocols” and failure to include a psychiatrist or 25 physician in the development of Decedent’s mental health treatment plan. (Id. at ¶¶ 27, 36.) 26 Plaintiffs claim the mental health treatment plan put in place for Decedent was inadequate given 27 Decedent’s known suicide risk factors and past suicide attempts. (Id. at ¶¶ 27, 36–43, 52–55.) 28 /// 1 Plaintiffs name the following defendants, alleged to be acting under color of state law: 2 (1) Kernan, a CDCR correctional counselor working at MCSP. (ECF No. 27 at ¶ 6.) 3 (2) Dunne, a CDCR Mental Health Clinician and unlicensed trainee working at MCSP. 4 Dunne is also asserted to be “the primary clinician in charge of [Decedent’s] treatment 5 plan.” (ECF No. 27 at ¶¶ 7, 35.) 6 (3) Newman, a staff psychologist working at MCSP. (ECF No. 27 at ¶ 8.) 7 (4) Ponder, a CDCR senior psychologist and/or mental health practitioner working at 8 MCSP. (ECF No. 27 at ¶¶ 9, 34.) 9 (5) Suskauer, a CDCR Staff Psychiatrist and mental health practitioner working at MCSP. 10 (ECF No. 27 at ¶ 10.) 11 (6) Heatley, the Chief Medical Officer Executive (“CME”) at MCSP. (ECF No. 27 at ¶ 12 12.) 13 (7) Smiley, the Chief Executive Officer (CEO) for health care at MCSP. (ECF No. 27 at 14 ¶ 13.) 15 (8) Lizarraga, the Warden at MCSP. (ECF No. 27 at ¶ 14.) 16 Plaintiffs claim Decedent’s suicide resulted “directly or substantially” from an inadequate 17 mental health treatment plan approved on September 9, 2014, by an interdisciplinary treatment 18 team consisting of Ponder, Dunne, and Kernan. (Id. at ¶ 33–43.) Plaintiffs contend an adequate 19 mental health treatment plan would have, at a minimum, included suicide precautions preventing 20 access to bedding that was not suicide resistant. (Id. at 39.) On information and belief, Plaintiffs 21 also assert that Dunne was supposed to be supervised by Newman but Newman failed to exercise 22 such supervision. (Id. at ¶ 35.) Plaintiffs assert that the plan should have been, but was not, 23 reviewed and approved by a psychiatrist or other physician, despite Decedent being under the 24 care of a psychiatrist and taking prescribed psychotropic medication. (Id. at ¶ 36.) As such, there 25 lacked a plan to monitor medication adherence and ability to respond to Decedent’s increased 26 suicide risk created by his refusal to take medications for three days prior to his death. (Id. at ¶¶ 27 35–37, 40.) 28 /// 1 A. Defendants Kernan and Lizarraga’s’ Motion to Dismiss 2 Kernan and Lizarraga seek to dismiss several causes of action against them for failure to 3 state a claim under Rule 12(b)(6). (ECF No. 33.) 4 Plaintiffs allege that Kernan, as part of the interdisciplinary treatment team with Dunne 5 and Ponder, “knew or should have known” that the mental health treatment plan was “woefully 6 inadequate” and assert two claims against her: (1) deliberate indifference to Decedent’s serious 7 medical needs, health, and safety (First Cause of Action); and (2) wrongful death/negligence 8 (Third Cause of Action). (ECF No. 27 at ¶¶ 45–51, 56–64.) Defendants move to dismiss the 9 First Cause of Action on the basis of qualified immunity and failure to state a claim upon which 10 relief can be granted (ECF No. 33-1 at 12–17, 20–21) and to dismiss the Third Cause of Action 11 on the basis that the SAC does not allege facts establishing Kernan owed any legal duty to the 12 Decedent or that she breached that duty. (Id.) 13 Plaintiffs allege that Lizarraga, as the Warden at MCSP, was responsible for the custody 14 and treatment of inmates at MCSP and for training and discipline of all employees under his 15 charge. (ECF No. 27 at ¶ 14.) Additionally, Lizarraga was responsible for establishing 16 operational plans and procedures to provide for the custody and treatment of inmates at MCSP. 17 (Id.) Plaintiffs allege that Lizarraga, along with Heatley and Smiley, demonstrated an “ongoing 18 pattern of deliberate indifference” in their failure to ensure implementation of appropriate mental 19 health and psychiatric treatment plans; failure to act upon life-threatening symptoms and suicidal 20 impulses or gestures; failure to provide appropriate staffing and training at MCSP for providing 21 inmates with adequate mental health or psychiatric treatment; failure to implement a policy to 22 ensure staff would contact and summon emergency mental health and/or psychiatric treatment in 23 a timely manner; failure to create and/or implement guidelines that must be followed to remove 24 inmates from existing suicide precautions; failure to create, implement and/or ensure staff follow 25 policies; failure to adequately train and supervise employees; and failure to promulgate 26 appropriate policies and procedures. (Id. at ¶ 54.) 27 Plaintiffs assert two claims against Lizarraga under 42 U.S.C. §1983: (1) deliberate 28 indifference to Decedent’s serious medical needs, health, and safety under 42 U.S.C. §1983 (First 1 Cause of Action); and (2) supervisory liability based on customs, practices or policies (Second 2 Cause of Action). (Id. at ¶¶ 45–55.) Defendants seek to dismiss the First Cause of Action on the 3 basis of qualified immunity and failure to state a claim upon which relief may be granted and 4 challenge the Second Cause of Action on the basis of qualified immunity. 5 B. Defendants Dunne, Ponder, Suskauer, Heatley, and Smiley’s Motion for Judgment on 6 the Pleadings 7 Dunne, Ponder, Suskauer, Newman, Heatley, and Smiley seek judgement in their favor on 8 specified causes of action against them. (ECF No. 34.) 9 Plaintiffs allege that Dunne and Ponder were deliberately indifferent to Decedent’s serious 10 medical/mental health needs because they participated in the development of the September 9, 11 2014 mental health treatment plan which they knew was “woefully inadequate.” (ECF No. 27 ¶¶ 12 34, 38, 43.) Plaintiffs also assert that Dunne should have obtained but failed to obtain a 13 psychiatrist’s participation and/or approval of Decedent’s mental health treatment plan. (Id. at ¶ 14 37.) 15 Plaintiffs allege two claims against Dunne: (1) deliberate indifference to Decedent’s 16 serious medical needs, health, and safety under 42 U.S.C. §1983 (First Cause of Action); and (2) 17 wrongful death under Cal. Code Civ. Proc. §337.60 et seq. (Third Cause of Action). (Id. at ¶¶ 18 45–51, 56–64.) Of these, Defendants seek judgment in favor of Dunne on the First Cause of 19 Action asserting qualified immunity. (ECF No. 34-1 at 12–15.) They do not seek judgement 20 regarding the Third Cause of Action. (Id.) 21 Plaintiffs allege three claims against Ponder: (1) deliberate indifference to Decedent’s 22 serious medical needs, health, and safety under 42 U.S.C. §1983 (First Cause of Action); (2) 23 wrongful death under Cal. Code Civ. Proc. §337.60 et seq. (Third Cause of Action); and (3) 24 failure to supervise, investigate, and discipline under 42 U.S.C. §1983 (Fourth Cause of Action). 25 (ECF No. 27 at ¶¶ 45–51, 56–68.) Of these, Defendants seek judgement in favor of Ponder on the 26 First and Fourth Causes of Action asserting qualified immunity and failure to state a claim upon 27 which relief can be granted. (ECF No. 34-1 at 12–19, 21–24.) They do not seek judgment 28 regarding the Third Cause of Action. (Id.) 1 Plaintiffs allege that Newman was responsible for supervising Dunne but failed to 2 competently do so. (ECF No. 27 at ¶ 35.) They assert three claims against Newman: (1) 3 deliberate indifference to Decedent’s serious medical needs, health, and safety under 42 U.S.C. 4 §1983 (First Cause of Action); (2) wrongful death under Cal. Code Civ. Proc. §337.60 et seq. 5 (Third Cause of Action); and (3) failure to supervise, investigate, and discipline employee 6 conduct under 42 U.S.C. §1983 (Fourth Cause of Action). (Id. at ¶¶ 45–51, 56–68.) Of these, 7 Defendants seek judgment in favor of Newman on the First and Fourth Cause of Action asserting 8 qualified immunity and failure to state a claim upon which relief can be granted. (ECF No. 34-1 9 at 12–19, 21–24.) They do not seek Judgment regarding the Third Cause of Action. (Id.) 10 Plaintiffs allege that Suskauer, as the psychiatrist who prescribed Decedent’s psychotropic 11 medications, had a duty to review the September 9, 2014 mental health treatment plan for 12 Decedent, who was under his care, but negligently failed to do so. (ECF No. 27 at ¶ 37.) 13 Plaintiffs also generally allege that Suskauer “failed to adequately supervise, investigate, and 14 discipline employee conduct.” (Id. at ¶ 66.) Plaintiffs present three claims against Suskauer: (1) 15 deliberate indifference to Decedent’s serious medical needs, health, and safety under 42 U.S.C. 16 §1983 (First Cause of Action); (2) wrongful death/negligence under Cal. Code Civ. Proc. §337.60 17 et seq. (Third Cause of Action); and (3) failure to supervise, investigate, and discipline under 42 18 U.S.C. §1983 (Fourth Cause of Action). (Id. at ¶¶ 45–51, 56–68.) Of these, Defendants seek 19 judgment in favor of Suskauer on the First and Fourth Cause of Action asserting qualified 20 immunity and failure to state a claim upon which relief can be granted. (ECF No. 34-1 at 12–19, 21 21–24.) They do not seek judgment regarding the Third Cause of Action. (Id.) 22 Finally, Plaintiffs allege that Heatley, as CME, was responsible for overseeing the 23 examination, diagnoses, prescriptions, and treatment of all inmate patients at MCSP. (ECF No. 24 27 at ¶ 12.) Plaintiffs also allege that Smiley, as CEO, was the highest-ranking health care 25 authority and responsible for all aspects of delivering health care at MCSP to ensure adequate 26 medical and mental health care for all inmates at MCSP. (Id. at ¶ 12.) As detailed supra, 27 Plaintiffs allege an “ongoing pattern of deliberate indifference” by Heatley and Smiley (along 28 with Warden Lizarraga) for failure to ensure implementation of treatment plans, adequately train 1 staff, and implement policies and procedures to attend to inmates with risk of suicide. (Id. at ¶ 2 54.) 3 Plaintiffs assert two claims against Heatley and Smiley under 42 U.S.C. §1983: (1) 4 deliberate indifference to Decedent’s serious medical needs, health, and safety (First Cause of 5 Action); and (2) supervisory liability based on customs, practices, or policies (Second Cause of 6 Action.) (Id. at ¶¶ 45–55.) Defendants seek judgment in favor of Heatley and Smiley on the First 7 and Second Causes of Action asserting qualified immunity and failure to state a claim upon which 8 relief can be granted. (ECF No. 34-1 at 12–21.) They do not seek judgment regarding the 9 remainder of the causes of action. 10 II. STANDARD OF LAW 11 A. Motion to Dismiss 12 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 13 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 14 2001). Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the 15 claim showing that the pleader is entitled to relief’ in order to ‘give the defendant fair notice of 16 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 17 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In considering a motion to 18 dismiss, all allegations of material fact must be accepted as true and construed in the light most 19 favorable to the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–338 (9th Cir. 1996) 20 (citations omitted). 21 A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed 22 factual allegations. However, “a plaintiff’s obligation to provide the ‘grounds’ of his 23 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of 24 the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alterations in original) 25 (citation omitted). A court is not required to accept as true a “legal conclusion couched as a 26 factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “Factual 27 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 28 U.S. at 555 (citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1 1216 (3d ed. 2004) (stating, “the pleading must contain something more . . . than . . . a statement 2 of facts that merely creates a suspicion [of] a legally cognizable right of action”)). Ultimately, a 3 court may not dismiss a complaint in which the plaintiffs have alleged “enough facts to state a 4 claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. 5 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 6 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 7 Iqbal, 556 U.S. at 678 (citation omitted). While the plausibility requirement “is not akin to a 8 ‘probability requirement’ but [rather demands] more than a sheer possibility that a defendant has 9 acted unlawfully[,] . . . [t]hreadbare recitals of the elements of a cause of action, supported by 10 mere conclusory statements, do not suffice.” (Id.) It is inappropriate to assume that the plaintiffs 11 “can prove facts that [they have] not alleged or that the defendants have violated . . . laws in ways 12 that have not been alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. St. Council of 13 Carpenters, 459 U.S. 519, 526 (1983). 14 If a complaint fails to state a plausible claim, “a district court should grant leave to amend 15 even if no request to amend the pleading was made, unless it determines that the pleading could 16 not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th 17 Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); see also 18 Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in denying 19 leave to amend when amendment would be futile). “Although a district court ‘should freely give 20 leave [to amend] when justice so requires,’ Fed.R.Civ.P. 15(a)(2), the court’s discretion to deny 21 such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.” 22 Ecological Rts. Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (alterations in 23 original) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 24 B. Motion for Judgment on the Pleadings 25 Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed — but early 26 enough not to delay trial — a party may move for judgment on the pleadings.” A motion for 27 judgment on the pleadings pursuant to Rule 12(c) challenges the legal sufficiency of the opposing 28 party’s pleadings. E.g. Westlands Water Dist. v. Bureau of Reclamation, 805 F. Supp. 1503, 1506 1 (E.D. Cal. 1992). A Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion to 2 dismiss for failure to state a claim and, therefore, the same legal standard applies. Cafasso v. 3 General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011); Dworkin v. Hustler 4 Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A motion for judgment on the pleadings 5 should only be granted if, accepting as true all material allegations contained in the nonmoving 6 party’s pleadings, the moving party “clearly establishes that no material issue of fact remains to 7 be resolved and that he [or she] is entitled to judgment as a matter of law.” Doleman v. Meiji 8 Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984) (quoting Charles Alan Wright & Arthur 9 R. Miller, Federal Practice and Procedure § 1368 (1969)); Hal Roach Studios, Inc. v. Richard 10 Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). 11 In reviewing a motion brought under Rule 12(c), the court “must accept all factual 12 allegations in the complaint as true and construe them in the light most favorable to the non- 13 moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Judgment on the 14 pleadings is appropriate when, taking everything in the pleadings as true, the moving party is 15 entitled to judgment as a matter of law. Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 16 2007); Honey v. Distelrath, 195 F.3d 531, 532 (9th Cir. 1999). 17 Courts have discretion to grant a motion for judgment on the pleadings with leave to 18 amend or dismiss the action instead of entering of judgment. Lonberg v. City of Riverside, 300 19 F.Supp.2d 942, 945 (C.D. Cal. 2004); see also Amersbach v. City of Cleveland, 598 F.2d 1033, 20 1038 (6th Cir. 1979), disapproved on another ground in Garcia v. San Antonio Metro. Transit 21 Auth., 469 U.S. 528 (1985); Lawton v. Cavalry Investments LLC, 2013 WL 3929707, at *1 (C.D. 22 Cal. 2013); Kennedy v. Kings Mosquito Abatement Dist., 2013 WL 1129202, at *3 (E.D. Cal. 23 2013); Carmen v. San Francisco Unified School Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997). 24 III. ANALYSIS 25 Defendants’ motion to dismiss (ECF No. 33) claims against Kernan and Lizarraga, and 26 Defendants’ motion for judgment on the pleadings (ECF No. 34) to dismiss claims against 27 Dunne, Ponder, Suskauer, Newman, Heatley, and Smiley are addressed in turn by the Court. 28 /// 1 A. Motion to Dismiss 2 Defendants move to dismiss the First Cause of Action against Kernan and Lizarraga for 3 failure to state a claim under Rule 12(b)(6). Plaintiffs’ First Cause of Action alleges that Kernan 4 and Lizarraga were deliberately indifferent to Decedent’s serious medical needs, health, and 5 safety in violation of the Eighth Amendment. (ECF No. 27 ¶¶ 45–51.) Defendants also move to 6 dismiss the Second Cause of Action for Supervisory Liability as asserted against Lizarraga and 7 the Third Cause of Action against Kernan for wrongful death based on negligence and 8 malpractice under California Code of Civ. Pro. §337.60 et. seq. (ECF No. 33-1.) 9 1. First Cause of Action – Deliberate Indifference to Decedent’s Serious Medical 10 Needs, Health, and Safety 11 As an initial matter, Plaintiffs do not oppose Lizarraga’s motion to dismiss the First Cause 12 of Action. (ECF No. 35 at 1.) Therefore, the First Cause of Action as to Lizarraga is 13 DISMISSED with leave to amend. In order for the Court to determine if the First Cause of 14 Action should be dismissed as to Kernan, it must analyze first whether the facts pleaded are 15 sufficient to allege deliberate indifference against her, and second whether Kernan is entitled to 16 qualified immunity. 17 a. Deliberate Indifference 18 While prison inmates do have a constitutional right to medical care, liability attaches to 19 prison authorities only if the medical care afforded, or lack thereof, is “deliberately indifferent” to 20 an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104(1976); Hutchinson v. 21 United States, 838 F.2d 390, 394 (9th Cir. 1988). A plaintiff must first establish a “serious 22 medical need by demonstrating that [the] failure to treat [his] condition could result in further 23 significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 24 1091, 1096 (9th Cir. 2006). Second, the plaintiff must show that the defendant’s response to the 25 medical need was deliberately indifferent. (Id.) 26 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 27 (9th Cir. 2004). “If a prison official should have been aware of the risk, but was not, then the 28 official has not violated the Eighth Amendment, no matter how severe the risk.” (Id.) Deliberate 1 indifference can be shown when “prison officials deny, delay or intentionally interfere with 2 medical treatment, or it may be shown by the way in which prison physicians provide medical 3 care.” Jett, 439 F.3d at 1096. But “[m]ere indifference, negligence, or medical malpractice will 4 not support this cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) 5 (per curiam); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The standard applied in the 6 Ninth Circuit is even higher than gross negligence — deliberate indifference requires a culpable 7 mental state. Green v. County of Sacramento, No. 2:13-CV-00949-TLN-KJN, 2016 WL 374561 8 at *12 (E.D. Cal., Feb. 1, 2016), (citing L.W. v. Grubbs, 92 F.3d 894, 898–900 (9th Cir.1996)). 9 The state actor must “recognize[ ][an] unreasonable risk and actually intend[ ] to expose the 10 plaintiff to such risks without regard to the consequences to the plaintiff.” Id. at 899. In other 11 words, the defendant “knows that something is going to happen but ignores the risk and exposes 12 [the plaintiff] to it.” Id. at 900. The deliberate-indifference inquiry should go to the jury if any 13 rational factfinder could find this requisite mental state. Id. 14 Defendants argue the SAC alleges no facts demonstrating Kernan was actually aware of a 15 substantial risk of serious harm to Decedent and that she disregarded that risk. (ECF No. 33-1 at 16 16.) They posit that it is conclusory for Plaintiffs to state that Kernan, along with other members 17 of the care team, approved Decedent’s inadequate treatment plan despite knowing he presented a 18 risk of suicide. (Id.) As such, they argue Plaintiffs have not met the “extraordinarily high” 19 standard for deliberate indifference. The Court disagrees. 20 The Court finds Plaintiffs sufficiently pleaded that an adequate treatment plan would have 21 included input or approval by a psychiatrist given Decedent was taking prescribed psychotropic 22 medication and “the role his medication was to play in his treatment” should have been taken into 23 account. (ECF No. 27 ¶ 36.) Plaintiffs also sufficiently pleaded that “[a]n adequate mental health 24 treatment plan would have included, at a minimum, suicide precautions preventing his access to 25 bedding that was not suicide resistant.” (Id. at ¶ 39.) Plaintiffs contend there should have been a 26 plan for medication compliance along with participation of a psychiatrist or physician. (Id. at ¶ 27 40.) Plaintiffs also satisfactorily assert that these missing elements directly and proximately led 28 to Decedent’s death. (Id. at ¶ 43.) 1 Plaintiffs allege in the SAC that Kernan, as a Correctional Counselor at MCSP and a 2 member of Decedent’s interdisciplinary treatment team, “knew or should have known” that the 3 individualized mental health treatment plan for Decedent was “woefully inadequate.” (ECF No. 4 27 ¶ 38.) Plaintiffs claim Decedent’s interdisciplinary treatment team was responsible for 5 developing his individualized treatment plan. (Id. at ¶ 34.) In support of the assertion that 6 Kernan “knew or should have known” of Decedent’s suicide risks, the SAC states that Decedent’s 7 “long documented history of mental illness, including being diagnosed with severe depression 8 and being bi-polar” were well known to MCSP correctional and medical and mental health staff. 9 (Id. at ¶ 22.) Defendants point out that Plaintiffs have not alleged any Defendant was present on 10 the day of Decedent’s suicide nor are any alleged to have had any personal interaction with 11 Decedent close to his time of death. (ECF No. 33-1 at 15.) Defendants further argue that in 12 alleging Kernan “knew or should have known” the treatment plan was inadequate, Plaintiffs in 13 essence concede Kernan was not necessarily deliberately indifferent, but possibly just negligent. 14 (Id. at 17.) Plaintiffs respond that they sufficiently allege Kernan had actual knowledge as to the 15 inadequacy of the treatment plan as a member of the decedent’s treatment team who knew 16 Decedent’s risk factors for suicide. (ECF No. 35 at 4–5.) 17 Though it is not stated in the SAC whether Kernan specifically knew Decedent had not 18 taken his medication for three days prior to his death, based on the pleadings, a rational factfinder 19 could infer that as a member of Decedent’s care team, Kernan knew Decedent was at risk for 20 suicide, and that she “ignore[d] the risk and exposed” Decedent to it by not taking steps to 21 prevent Decedent’s suicide in developing his treatment plan. Grubbs, 92 F.3d at 900. The Court 22 therefore finds Plaintiffs have pleaded sufficient facts to state a claim of deliberate indifference as 23 to Kernan. 24 b. Qualified Immunity 25 Defendants also argue Plaintiffs’ §1983 claims are based on the failure to implement 26 adequate suicide prevention policies and protocols, and as such, should be dismissed because 27 Defendants are entitled to qualified immunity. (ECF No. 33-1 at 12–20.) 28 /// 1 Qualified immunity protects government officers from “liability for civil damages insofar 2 as their conduct does not violate clearly established statutory or constitutional rights of which a 3 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Pearson 4 v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity questions are to be resolved at the 5 “earliest possible stage in litigation” because qualified immunity is “an immunity from suit rather 6 than a mere defense to liability.” Pearson, 555 U.S. 231–2; Mitchell v. Forsyth, 472 U.S. 511, 7 526 (1985). 8 In determining qualified immunity, courts must ask: (1) taken in the light most favorable 9 to the party asserting the injury, do the facts alleged show the officer’s conduct violated a 10 constitutional right, Saucier v. Katz, 533 U.S. 194, 201 (2001); and (2) whether the right was 11 “clearly established” at the time of the alleged misconduct. Pearson, 555 U.S. at 223–25. The 12 Court may address either prong first. Saucier, 533 U.S. at 201. The inquiry “must be undertaken 13 in light of the specific context of the case, not as a broad general proposition . . . and serves to 14 advance understanding of the law and to allow officers to avoid the burden of trial if qualified 15 immunity is applicable.” (Id.) “[T]he right the official is alleged to have violated must have been 16 ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of 17 the right must be sufficiently clear that a reasonable official would understand that what he is 18 doing violates that right.” Id. at 202 (citation omitted). Qualified immunity protects “all but the 19 plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 20 341 (1986). 21 Defendants argue the alleged constitutional right that is the basis for Plaintiffs’ 22 constitutional claims is the right to adequate suicide prevention policies and protocols. (ECF No. 23 33-1 at 14.) According to Defendants, it was not “clearly established” in 2014 — the time of the 24 alleged violation and Decedent’s death — that government actors had a duty to implement suicide 25 prevention policies and protocols to the degree specified by Plaintiffs in the SAC. (Id.) 26 Defendants rely on a Supreme Court case, Taylor v. Barkes, 135 S. Ct. 2042 (2015), in which the 27 Court concluded that “no decision of this Court establishes a right to the proper implementation 28 of adequate suicide prevention protocols.” Id. The Court held defendants were entitled to 1 qualified immunity because such a right was not clearly established at least up to the decision in 2 Taylor. Id. at 2043–45. Defendants argue that since Decedent’s death occurred in November of 3 2014, the holding in Taylor should apply. (ECF No. 33-1 at 15.) 4 Plaintiffs respond that the alleged constitutional right at issue is the right to be free from 5 deliberate indifference to an inmate’s serious risk of suicide, which was clearly established at the 6 time of decedent’s death. They point to NeSmith v. County of San Diego, No. 15CV629 JLS 7 (JMA), 2016 WL 4515857 at *6 (S.D. Cal. 2016), which draws a distinction between “an 8 individual being deliberately indifferent to the suicidal ideations of a particular inmate and a 9 government entity acting with deliberate indifference toward potential inmate suicides on a policy 10 level.” Id. 11 Plaintiffs also cite to several cases in which the acts or omissions of prison staff 12 constituted deliberate indifference where staff members knew of and disregarded an excessive 13 risk to an inmate’s health (citing to Farmer v. Brennan, 511 U.S. 825 (1994); Estelle v. Gamble, 14 429 U.S. 97 (1976)), as well as cases that acknowledged a clearly established constitutional right 15 to mental health treatment, including suicide prevention, while in custody (citing to Van Orden v. 16 Downs, 609 F. App’x 474, 475 (9th Cir. 2015); Clouthier v. County of Contra Costa, 591 F.3d 17 1232, 1245 (9th Cir. 2010)). (ECF No. 35 at 2.) Plaintiffs argue that the “clearly established” 18 prong of the Saucier test is thus met, and all that is left to decide is whether the particular 19 defendant’s conduct violated that right. The Court agrees that there exists a clearly established 20 right to be free from deliberate indifference to serious mental health needs, including risk of 21 suicide. And as set forth above, Plaintiffs have sufficiently pleaded facts demonstrating that 22 Kernan violated this right given her role on Decedent’s mental health treatment team and 23 knowledge of Decedent’s risk of suicide. 24 Defendants acknowledge the distinction set forth in NeSmith and concede that Taylor 25 speaks to a “broader duty for government entities to implement a suicide prevention policy that 26 must meet certain unspecified standards,” as opposed to “government actors” acting with 27 deliberate indifference to a particular inmate’s suicidal ideations. (ECF No. 33-1 at 15 citing 28 NeSmith at *7.) However, they assert that Taylor is the proper authority here because “none of 1 the named Defendants is alleged to have been present on the day of the Decedent’s suicide” nor 2 did any Defendant have personal interaction with Decedent for weeks. (ECF No. 33-1 at 15.) As 3 such, they assert this is not a case as described in NeSmith in which a particular defendant knew 4 of an imminent risk of suicide and disregarded that risk in a show of deliberate indifference. (Id.) 5 The Court finds Defendants’ reasoning unpersuasive because it seeks to paint all named 6 Defendants in the same broad stroke rather than have the Court consider each individuals’ actions 7 or inactions as detailed in the pleadings. But the Court must consider the facts as they are 8 asserted against each Defendant in order to determine whether the claims asserted pertain to a 9 failure to implement suicide prevention protocols at a “policy level” or deliberate indifference to 10 the Decedent’s health, medical needs, or health and safety by individual government actors. 11 Nesmith, 2016 WL 4515857 at *6. 12 Here, the allegations against Kernan, given her participation on Decedent’s 13 interdisciplinary care team and involvement in the development of Decedent’s individualized 14 mental health treatment plan, are sufficient to allege deliberate indifference to Decedent’s health, 15 medical needs, or health and safety by an individual government actor. The relevant 16 constitutional right – to be free of deliberate indifference to serious mental health needs, including 17 risk of suicide – was clearly established at the time of Decedent’s death. As such, Kernan is not 18 entitled to qualified immunity at this stage. Consequently, Defendants’ motion to dismiss the 19 First Cause of Action as to Kernan is DENIED. 20 2. Second Cause of Action – Supervisory Liability based on Customs, Practices, 21 or Policies 22 Plaintiffs allege the acts and/or omissions of Defendants in being deliberately indifferent 23 to Decedent’s serious medical needs, health, and safety were the direct and proximate result of 24 customs, practices, or policies, or lack thereof, of Warden Lizarraga, CEO Smiley, and CME 25 Heatley. (ECF No. 27 at ¶¶ 53–54.) The Court previously found that Plaintiffs made sufficient 26 pleadings to allege supervisory liability based on customs, practices, or policies. (ECF No. 21). 27 Defendants now seek dismissal of this cause of action based on qualified immunity. (ECF No. 28 33-1 at 12–16.) 1 Plaintiff’s allegations against Lizarraga, along with Heatley and Smiley include: a failure 2 to ensure implementation of appropriate mental health and psychiatric treatment plans; failure to 3 act upon symptoms and reports of suicidal impulses; failure to provide appropriate staffing and 4 training at MCSP for providing inmates with adequate treatment; failure to implement a policy to 5 ensure staff timely contact and summon emergency mental health and/or psychiatric treatment; 6 failure to create and/or implement guidelines that must be followed to remove inmates from 7 existing suicide precautions; failure to create, implement and/or ensure that staff follow policies; 8 failure to adequately train and supervise employees; and failure to promulgate appropriate 9 policies and procedures to prevent the constitutional violations alleged. (ECF No. 27 at ¶ 54.) As 10 Defendants point out, the claims asserted by Plaintiffs against Lizarraga are based on his failure 11 to ensure “the proper implementation of adequate suicide prevention protocols.” Taylor, 135 S. 12 Ct. at 2044. As the Supreme Court noted in Taylor, “[n]o decision of this Court establishes a 13 right to the proper implementation of adequate suicide prevention protocols.” Id. Consequently, 14 Plaintiffs have not established a clearly established right, and therefore, Lizarraga is entitled to 15 qualified immunity. Under the qualified immunity analysis, which differs from the standards the 16 Court analyzed in its previous order denying the motion to dismiss this cause of action (ECF No. 17 21), Defendants’ Motion to Dismiss this cause of action as to Lizarraga is GRANTED with 18 prejudice. 19 3. Third Cause of Action – Wrongful death: Negligence / Malpractice under Cal. 20 Code Civ. Proc. §377.60 et. seq. 21 Lastly, Defendants move to dismiss the Third Cause of Action as to Kernan. Plaintiffs do 22 not oppose the dismissal of Kernan from the Third Cause of Action. (ECF No. 35 at 1.) 23 Therefore, the Court GRANTS the motion to dismiss the Third Cause of Action against Kernan 24 with leave to amend. 25 B. Motion for Judgment on the Pleadings 26 Dunne, Ponder, Newman, Suskauer, Heatley, and Smiley move for judgment on the 27 pleadings with regard to the following: (1) the First Cause of Action against Dunne, Ponder, 28 Suskauer, Newman, Heatley, and Smiley on the basis of qualified immunity and for failure to 1 state a claim as to Suskauer, Newman, Heatley, and Smiley; (2) the Second Cause of Action 2 against Heatley and Smiley on the basis of qualified immunity and failure to state a claim; and (3) 3 the Fourth Cause of Action against Ponder, Suskauer, and Newman on the basis of qualified 4 immunity and failure to state a claim. (ECF No. 34-1 at 8.) Plaintiff does not oppose the motion 5 as it is “directed to Defendants Heatley and Smiley in the first cause of action and as it is directed 6 to Suskauer in the fourth cause of action.” (ECF No 36 at 1.) 7 1. First Cause of Action – Deliberate Indifference to Decedent’s Serious Medical 8 Needs, Health, and Safety 9 In similar fashion to the argument supporting qualified immunity for Kernan and 10 Lizarraga, Defendants argue that Dunne, Ponder, Suskauer, Newman, Heatley, and Smiley are 11 entitled to qualified immunity because the duty to implement adequate suicide prevention policies 12 or protocols was not a clearly established constitutional right at the time of Decedent’s death per 13 Taylor, 135 S. Ct. 2042 (2015). (ECF No. 34-1 at 12.) As the Court discussed supra, however, 14 where individual government actors’ actions or omissions are at issue, the Court finds, pursuant 15 to NeSmith, No. 15CV629 JLS (JMA), 2016 WL 4515857, at *6 (S.D. Cal. 2016) that the right to 16 be free from deliberate indifference to serious medical needs, including risk of suicide, was a 17 clearly established right at the time of alleged infractions by Defendants. Therefore, in order to 18 determine if each Defendant is entitled to qualified immunity, the Court must turn to the second 19 prong of the qualified immunity test, namely, whether it is sufficiently alleged that each 20 individual violated Decedent’s clearly established right. This requires the Court to examine the 21 facts alleged as to each Defendant. 22 a. Defendant Dunne 23 Defendants do not make particularized arguments in their motion for why Dunne’s actions 24 or inactions do not meet the “extremely high” deliberate indifference standard. The Court makes 25 its assessment based on the face of the pleadings in the SAC. 26 Plaintiffs allege Dunne was an unlicensed trainee mental health clinician who served as 27 the primary clinician in charge of Decedent’s treatment plan. (ECF No. 27 at ¶ 6.) Dunne 28 participated on Decedent’s interdisciplinary treatment team, along with Kernan and Ponder. (Id. 1 at ¶ 34.) The treatment team allegedly developed an inadequate mental health treatment plan, 2 failed to include required clinical team members, and failed to obtain necessary approvals from a 3 psychiatrist. (Id. at ¶ 40.) Medical staff knew Decedent was depressed, bi-polar, and presented a 4 low acute and high chronic risk of suicide. (Id. at ¶ 22.) Plaintiffs allege that as the primary 5 clinician in charge of Decedent’s treatment plan, Dunne should have obtained a psychiatrist’s 6 participation and/or approval but failed to do so. (Id. at ¶ 37.) Finally, Plaintiffs allege that the 7 treatment team developed a “woefully inadequate” mental health treatment plan and as a member 8 of that treatment team, Dunne was deliberately indifferent to Decedent’s serious medical/mental 9 health needs. (Id at ¶¶ 34, 38, 43.) 10 The Court finds the SAC pleads sufficient facts, when taken as true, to establish that 11 Decedent had serious medical needs and that Dunne knew of those needs. A trier of fact could 12 therefore find the requisite intent that Dunne’s actions and omissions arising from her role on 13 Decedent’s care team were “deliberately indifferent” in violation of the Eighth Amendment. 14 Consequently, Dunne is not entitled to qualified immunity. Defendants do not argue that 15 the SAC otherwise fails to state a claim. Defendants’ motion for judgment on the pleadings as to 16 the First Cause of Action against Dunne is DENIED. 17 b. Defendant Ponder 18 Defendants also seek judgment in favor of Ponder on the First Cause of Action asserting 19 qualified immunity. (ECF No. 34-1 at 8.) 20 According to the SAC, Ponder was a Clinical Psychologist and mental health practitioner 21 who was one of three participants on Decedent’s interdisciplinary treatment team. (ECF No. 27 22 at ¶ 9.) Ponder, as part of the treatment team, developed Decedent’s mental health treatment plan, 23 which Plaintiffs claim, “failed to address his known mental health needs.” (Id. at ¶ 38.) Plaintiffs 24 assert that “[a]n adequate mental health treatment plan would have included, at a minimum, 25 suicide precautions preventing access to bedding that was not suicide resistant.” (Id. at ¶ 39.) 26 Plaintiffs allege that Decedent’s suicide resulted directly or substantially from the inadequate 27 mental health treatment plan approved, in part, by Ponder. (Id. at ¶ 43.) 28 /// 1 The Court finds Plaintiffs have stated sufficient plausible factual allegations supporting 2 the claim that Ponder acted with deliberate indifference by failing to take actions to address 3 Decedent’s risk of suicide despite knowing of this risk. The Court therefore finds that Ponder is 4 not entitled to qualified immunity. Defendants do not argue that Plaintiffs have otherwise failed 5 to state a claim against Ponder. Therefore, Defendants’ motion for judgment on the pleadings as 6 to the First Cause of Action against Ponder is DENIED. 7 c. Defendant Newman 8 Defendants next seek judgment in favor of Newman on the First Cause of Action asserting 9 qualified immunity and for failure to state a claim upon which relief can be granted. (ECF No. 10 34-1 at 8.) 11 Newman was a staff psychologist working at MCSP. (ECF No. 27 at ¶ 8.) Plaintiffs 12 allege that Newman was responsible for supervising Dunne in the preparation or execution of 13 Decedent’s mental health plan but failed to do so despite knowing such supervision was crucial 14 and legally required. (Id. at ¶ 35.) Defendants move for judgement in favor of Newman 15 regarding this cause of action, arguing that these allegations support the supervisory liability 16 claim in the Fourth Cause of Action but do not support the deliberate indifference claim in the 17 First Cause of Action. (ECF No. 34-1 at 18.) Plaintiffs oppose arguing that as a staff 18 psychologist, Newman knowingly allowed an unlicensed and unqualified individual to provide 19 treatment to Decedent and was therefore deliberately indifferent. (ECF No. 36 at 5.) 20 The Court agrees with Defendants that Plaintiffs have not alleged facts demonstrating 21 Newman’s deliberate indifference to Decedent’s serious medical needs. The SAC is devoid of 22 allegations that Newman was even aware of medical or suicide risks to the Decedent, much less 23 that he intentionally ignored those risks. The only allegations present are that he failed to 24 supervise Dunne. Therefore, based on the facts alleged, Newman is entitled to qualified 25 immunity. If a complaint fails to state a plausible claim, “a district court should grant leave to amend 26 even if no request to amend the pleading was made, unless it determines that the pleading could not 27 possibly be cured by the allegation of other facts.” Lopez, 203 F.3d at 1127 (citations omitted). 28 Defendants’ motion for judgment on the pleadings as to the First Cause of Action against 1 Newman is GRANTED with leave to amend. 2 d. Defendant Suskauer 3 Defendants move for judgment on the pleadings on the First Cause of Action against 4 Suskauer asserting qualified immunity and for failure to state a claim upon which relief can be 5 granted. (ECF No. 34-1 at 8.) 6 Suskauer was a CDCR staff psychiatrist and mental health practitioner working at MCSP. 7 (ECF No. 27 at ¶ 10.) Plaintiffs allege that Suskauer, as the prescriber of Decedent’s 8 psychotropic medication, had a duty to review the September 9, 2014 mental health treatment 9 plan for Decedent, who was under his care, but negligently failed to do so. (Id. at ¶ 37.) 10 Plaintiffs also claim that a psychiatrist or other physician’s participation or approval was “notably 11 absent” from the Decedent’s mental health treatment plan, which meant “there could be no and 12 there was no proper assessment of the role his medication was to play in his treatment” and “no 13 plan, or ability to implement a plan, to appropriately respond to a further increase in his acute 14 suicide risk created by his refusal to take medications.” (Id. at ¶ 36.) 15 Defendants argue that the pleadings do not allege facts demonstrating that Suskauer was 16 aware of a substantial risk of serious harm to Decedent or that he disregarded that risk. (ECF No. 17 34-1 at 17.) Rather than deliberate indifference, Defendants argue the pleadings support a 18 negligence cause of action. (Id. at 17–18.) 19 Plaintiffs’ opposition argues that Suskauer is inferred to know about Decedent’s 20 depression, suicidal ideation, and history of suicide attempts, given he was the doctor who 21 prescribed psychotropic medication. (ECF No. 36 at 4.) 22 While the Court fails to see how Suskauer, as a psychiatrist, could have requisite control 23 over the full range of suicide prevention actions that could have been taken, such as issuing tear 24 resistant clothing and bedding or frequent observations by staff (ECF No. 27 at ¶ 27), Plaintiffs 25 have nonetheless sufficiently stated a plausible deliberate indifference claim against Suskauer for 26 his alleged failure to review and approve Decedent’s treatment plan (id. at ¶ 37), failure to 27 consider how medication should fit into Decedent’s treatment (id. at ¶ 36), and failure to 28 implement a plan to respond to heightened risk of suicide when his patient refuses to take 1 prescribed psychotropic medication (id.). Because the Court finds the allegations are specific to 2 Suskauer’s individual conduct and not to implementation of suicide prevention policies at an 3 institutional level, Taylor does not apply. Instead, the constitutional right to be free from 4 deliberate indifference to serious medical needs is clearly established and Plaintiffs have alleged 5 sufficient facts that Suskauer violated that right. As such, Suskauer is not entitled to qualified 6 immunity. Further, the facts discussed above are sufficient to state a claim for deliberate 7 indifference against Suskauer. Therefore, Defendants’ motion for judgment on the pleadings in 8 favor of Suskauer on this cause of action is DENIED. 9 e. Defendants Heatley and Smiley 10 Defendants argue that Heatley and Smiley are medical administrators and that Plaintiffs 11 have alleged no facts demonstrating these Defendants had actual knowledge of a serious risk to 12 Decedent’s health and safety and disregarded that risk. (ECF No. 34-1 at 19.) Defendants argue 13 the SAC does not allege that either Defendant was aware of Decedent’s mental health condition, 14 much less his risk of suicide. (Id.) Plaintiffs do not oppose Defendants’ motion as it is directed 15 to Heatley and Smiley in the First Cause of Action. (ECF No. 36-1.) If a complaint fails to state a 16 plausible claim, “a district court should grant leave to amend even if no request to amend the pleading 17 was made, unless it determines that the pleading could not possibly be cured by the allegation of other 18 facts.” Lopez, 203 F.3d at 1127 (citations omitted). Therefore, Defendants’ motion for judgement 19 on the pleadings on the First Cause of Action as to Heatley and Smiley is GRANTED with leave 20 to amend. 21 2. Second Cause of Action – Supervisory Liability based on Customs, Practices, 22 or Policies 23 Plaintiffs allege that the acts and/or omissions of Defendants in being deliberately 24 indifferent to Decedent’s serious medical needs, health, and safety, were the direct and proximate 25 result of customs, practices, or policies, or lack thereof, of Warden Lizarraga, CEO Smiley and 26 CME Heatley. (ECF No. 27 at ¶¶ 53–54.) The Court has previously found that Plaintiffs 27 sufficiently alleged supervisory liability based on customs, practices, or policies. (ECF No. 21). 28 Defendants now seek judgment in favor of Smiley and Heatley on this cause of action asserting 1 qualified immunity. (ECF No. 34-1 at 14–15.) 2 As discussed supra with regard to Lizarraga for this same cause of action, the claims 3 asserted by Plaintiffs against Heatley and Smiley are based on their failure to ensure “the proper 4 implementation of adequate suicide prevention protocols,” which was not a clearly established 5 right at the time of Decedent’s death. Taylor, 135 S. Ct. at 2044. Consequently, Heatley and 6 Smiley are entitled to qualified immunity and Defendants’ motion for judgment on the pleadings 7 as to the Second Cause of Action against these Defendants is GRANTED with prejudice. 8 3. Fourth Cause of Action – Failure to Supervise, Investigate, and Discipline 9 A defendant may be held liable as a supervisor under § 1983 “if there exists either (1) his 10 or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 11 between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 12 F.3d 1202, 1207 (9th Cir. 2011) (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “A 13 supervisor can be liable in his individual capacity for his own culpable action or inaction in the 14 training, supervision, or control of his subordinates; his acquiescence in the constitutional 15 deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.” 16 Starr, 652 F.3d at 1208 (citing Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). 17 A plaintiff is not required to allege that a supervisor was physically present when the injury 18 occurred. Starr, 652 F.3d at 1205. 19 i. Defendant Ponder 20 Defendants seek judgement on the pleadings as to the Fourth Cause of Action against 21 Ponder on the basis of qualified immunity and for failure to state a claim upon which relief can be 22 granted. (ECF No. 34-1 at 8.) 23 As discussed supra, Ponder is not entitled to qualified immunity based on his personal 24 involvement in the creation of the individualized treatment plan. However, Defendants argue that 25 Plaintiffs’ Fourth Cause of Action names Ponder on a failure to supervise, but that Plaintiffs have 26 not alleged any facts demonstrating whom Ponder failed to supervise, or how he failed to 27 supervise them. (ECF No. 34-1 at 22.) Defendants also assert that Plaintiffs fail to allege facts 28 demonstrating how such failure resulted in Decedent’s suicide. (Id.) After thoroughly examining 1 the SAC, the Court agrees with Defendants that the SAC fails to allege any action or inaction by 2 Ponder as a supervisor. Indeed, the Fourth Cause of Action does not mention Ponder in any 3 capacity except to list him under the heading. “A claim has facial plausibility when the plaintiff 4 pleads factual content that allows the court to draw the reasonable inference that the defendant is 5 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. We do not find such facial plausibility 6 met here given the dearth of relevant facts. 7 Consequently, the motion for judgement on the pleadings as to the Fourth Cause of Action 8 against Ponder is GRANTED with leave to amend. 9 ii. Defendant Newman 10 Plaintiffs also allege under the Fourth Cause of Action that Newman failed to adequately 11 supervise, investigate, and discipline employee conduct. (ECF No. 27 at ¶ 66.) In particular, the 12 SAC alleges that Newman was responsible for supervising Dunne, the unlicensed trainee and 13 “primary clinician” on Decedent’s treatment team but failed to competently do so. (Id. at ¶ 30.) 14 Plaintiffs allege Newman failed to exercise any supervision over Dunne in the preparation or 15 execution of the Decedent’s mental health treatment plan, even though Newman knew that such 16 supervision was critically and legally required. (Id. at ¶ 35.) 17 In order for Newman to be liable under § 1983 as a supervisor she must have personally 18 been involved in the constitutional violation or there must be a sufficient causal connection 19 between Newman’s alleged wrongful action and the constitutional deprivation. As discussed 20 supra, the SAC does not allege facts indicating that Newman was personally involved in any 21 deliberate indifference to Decedent’s risk of suicide. While the SAC alleges that Newman had 22 some responsibility in supervising Dunne in her duties, it does not allege facts sufficient to meet 23 the required causal connection between Dunne’s deliberate indifference to Decedent’s medical 24 needs and Newman’s action or inaction as a supervisor. As such, Newman is entitled to qualified 25 immunity based on the facts alleged. However, the Court does not find that amendment would be 26 futile. Therefore, Defendants’ motion for judgment on the pleadings as to the Fourth Cause of 27 Action against Newman is GRANTED with leave to amend. 28 /// 1 iii. Defendant Suskauer 2 Finally, Defendants seek judgement on the pleadings as to the Fourth Cause of Action 3 against Suskauer. Plaintiffs explicitly do not oppose this motion. (ECF No. 36 at 1.) As such, 4 Defendants’ motion for judgment on the pleadings to dismiss Suskauer from this Cause of Action 5 is GRANTED with leave to amend. 6 IV. CONCLUSION 7 For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants 8 Kernan and Lizarraga’s Motion to Dismiss and GRANTS in part and DENIES in part Defendants 9 Dunne, Ponder, Suskauer, Newman, Heatley, and Smiley’s Motion for Judgment on the 10 Pleadings, as follows: 11 (1) The Motion to Dismiss the First Cause of Action is DENIED as to Kernan and 12 GRANTED with leave to amend as to Defendant Lizarraga; 13 (2) The Motion to Dismiss the Second Cause of Action against Defendant Lizarraga is 14 GRANTED with prejudice; 15 (3) The Motion to Dismiss the Third Cause of Action against Defendant Kernan is 16 GRANTED with leave to amend; 17 (4) The Motion for Judgement on the Pleadings as to the First Cause of Action against 18 Defendants Dunne, Ponder, and Suskauer is DENIED; it is GRANTED with leave to 19 amend as to Defendants Newman, Heatley, and Smiley; 20 (5) The Motion for Judgement on the Pleadings as to the Second Cause of Action against 21 Defendants Heatley and Smiley is GRANTED with prejudice; and 22 (6) The Motion for Judgement on the Pleadings as to the Fourth Cause of action against 23 Defendants Ponder, Newman, and Suskauer is GRANTED with leave to amend. 24 IT IS SO ORDERED. 25 Dated: February 27, 2020 26 27 28