Marsh v. San Diego County, CIV. 05-1568WQH(NLS).

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Citation432 F.Supp.2d 1035
Decision Date05 May 2006
Docket NumberNo. CIV. 05-1568WQH(NLS).,CIV. 05-1568WQH(NLS).
PartiesKenneth L. MARSH, Plaintiff, v. SAN DIEGO COUNTY, et al., Defendants.
432 F.Supp.2d 1035
Kenneth L. MARSH, Plaintiff,
SAN DIEGO COUNTY, et al., Defendants.
No. CIV. 05-1568WQH(NLS).
United States District Court, S.D. California.
May 5, 2006.

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Dennis B. Atchley, Law Offices of Donnie R. Cox, Oceanside, CA, for Plaintiff.

Deborah Anne McCarthy, County of San Diego Office of County Counsel, Colin Henry Murray, Baker & McKenzie LLP, San Diego, CA, for Defendants.


HAYES, District Judge.

Pending before the Court is a Motion to Dismiss filed by Defendant County of San Diego and Defendant Murphy [Doc. No. 9], a Motion to Dismiss filed by Defendant Chadwick and Defendant Children's Hospital [Doc. No. 5], and a Motion to Dismiss filed by Defendant Williams [Doc. No. 32]. Each Defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).1 Also before the Court is Plaintiff's Request for Judicial Notice [Doc. Nos. 22, 38], Defendants Children's Hospital and Chadwick's Request for Judicial Notice [Doc. No. 7], and Defendants County, Williams, and Murphy's Request for Judicial Notice [Doc. No. 11]. The Court finds these matters suitable for submission on the papers and without oral argument pursuant to Civil Local Rule 7.1(d). After considering the arguments raised by the parties in their briefings, the Court now issues the following rulings.


On April 27, 1983, Plaintiff Kenneth Marsh was babysitting Phillip Buell, then age 33 months and his sister Jessika, then age 18 months. The children were playing together on the couch in the living room. According to the Complaint, Plaintiff left the room at approximately 11:00 a.m. to get a vacuum cleaner. While Plaintiff was out of the room, he heard a crashing sound. He hurried back in to find that Phillip had fallen from the couch onto a fireplace hearth and glass ash tray, severely injuring himself. There were no eyewitnesses to Phillip's fall. Paramedics transported Phillip to Alvarado Hospital. At Alvarado Hospital, an E.R. physician examined Phillip and saw no evidence of papilledema, no retinal hemorrhages, no battle signs and no palpable fractures. Phillip was transferred to Sharp's Hospital, and eventually to San Diego Children's Hospital, where Phillip was treated. During transport to Children's Hospital, Phillip was administered eight (8) grams of Mannitol. Plaintiff alleges this was "contraindicated" by Philips medical history and "exacerbated the child's intercranial bleed AND [sic] increased his swelling." Complaint at 13. Phillip was also given a blood transfusion and suffered "Bradycardia (slowness of the heart beat)." Id. Phillip died the next day.

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On April 29, 1983, Dr. Roger Williams, the Chief of Pathology from Children's Hospital acting as the "de facto" coroner, performed Phillip's autopsy. Initially, Dr. Williams' preliminary autopsy findings reported to the San Diego Police Department were consistent with an accidental death. Plaintiff alleges Dr. Chadwick, also acting in the role of "de facto" coroner, investigated Phillip's medical history to determine if he was a victim of a non-accidental injury. After conducting his investigation, Dr. Chadwick reported to the San Diego District Attorney his conclusion that Phillip died from a "non-accidental injury." Phillip's death certificate was signed by Dr. M.L. Murphy, the acting deputy coroner for the County of San Diego. Dr. Murphy first entered code 9608 as the cause of death in Phillip's "pending" death certificate. The code 9608 designates "poisoning by other specified antibiotics." The code was later changed to reflect that Phillip died from abuse.

On or about June 30, 1983, Plaintiff was accused of the murder of Phillip Buell. Plaintiff was arrested, prosecuted, and convicted by a jury. Petitioner was sentenced to fifteen (15) years to life, and remained incarcerated in state prison for almost twenty-one (21) years. Plaintiff filed two petitions for writ of habeas corpus, the second on October 2, 2002. On August 4, 2004, the San Diego County District Attorney's Office requested Plaintiff receive a new trial based on the findings of Dr. Sam Gulino, a forensic pathologist from Florida who the district attorney retained to re-evaluate the evidence. Thereafter, the San Diego District Attorney removed her opposition to Plaintiff's writ of habeas corpus, based on factual innocence. On September 3, 2004, the District Attorney moved to dismiss all charges against Plaintiff in the interest of justice. The motion was granted. On August 10, 2004, Plaintiff was released from custody after serving 7,569 days incarceration subsequent to his conviction.

Plaintiff alleges that Defendants Chadwick and Williams, doctors at Children's Hospital, covered up medical negligence that occurred in Phillip's medical treatment, and that negligence was ultimately responsible for Phillip's death. Plaintiff alleges that while Dr. Murphy initially used code 9608 on Phillip's pending death certificate, the County and Dr. Murphy conspired to delete any reference to 9608 on the final certificate and falsely stated that Phillip died because he was "beaten by another." Plaintiff further alleges that the County of San Diego had a policy, practice and/or custom of delegating its duty to allow doctors at Children's Hospital to perform autopsies despite the fact that they might have a conflict because of their employment at the hospital, and despite the fact that they are not board certified pathologists. Plaintiff alleges that to further cover up their negligence, Chadwick, Murphy, and Williams made false representations to the San Diego District Attorney to induce the prosecution to pursue criminal charges against Plaintiff. Plaintiff alleges that the County conspired with Chadwick, Murphy, and Williams to keep Plaintiff incarcerated and legally incapacitated from suing the County by covering up its prior conspiratorial acts. Further, Plaintiff alleges that the policies, practices and procedures of the County of San Diego permitted his false arrest, imprisonment, and conviction.


1. Motion to Dismiss

A Rule 12(b)(6) motion tests the sufficiency of the Complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal of a claim under Rule 12(b)(6) is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of

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facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Navarro, 250 F.3d at 732. Dismissal is warranted under Rule 12(b)(6) where the Complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, the Complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002), cert denied, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed2d 311 (2003); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001), amended by 275 F.3d 1187 (9th Cir.2001). When ruling on a motion to dismiss, the Court may consider the facts alleged in the Complaint, documents attached to the Complaint, documents relied upon but not attached to the Complaint when authenticity is not contested, and matters of which the Court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.1998); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986).

2. Request for Judicial Notice

Federal Rule of Evidence rule 201 provides that "a judicially noticed fact must be one not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 210, subd. (b) (West 2006). Further, "[a] court shall take judicial notice if requested by a party and supplied with the necessary information." Fed.R.Evid. 210, subd. (d) (West 2006). A court may take judicial notice of the existence of matters of public record, such as a prior order or decision, but not the truth of the facts cited therein. See Lee v. City of Los Angeles, 250 F.3d 668, 689-690 (9th Cir.2001); see also Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1953) (holding a court may take judicial notice of records and reports of administrative bodies).


In the Complaint, Plaintiff alleges seven causes of action. Defendants argue that each fails to state a claim for relief. The parties also seek judicial notice of several documents.

I. Request for Judicial Notice

Plaintiff originally requested the Court take judicial notice of ten documents, including: (1) August 10, 2004 Order Granting the Petition, Setting Aside the Conviction, and Releasing the Petitioner; (2) Proposed Decision (Penal Code §§ 4900 et seq.) Before the Victim Compensation and...

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