Scalia v. Cnty. of Kern

• Decision Date: 10 April 2018
• Docket Number: 1:17–cv–01097–LJO–SKO
• Citation: Scalia v. Cnty. of Kern, 308 F.Supp.3d 1064 (E.D. Cal. 2018)
• Parties: John SCALIA, individually and as successorin-interest of Decedent Kimberly Morrissey–Scalia, v. COUNTY OF KERN, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

308 F.Supp.3d 1064

John SCALIA, individually and as successorin-interest of Decedent Kimberly Morrissey–Scalia,

v.COUNTY OF KERN, et al., Defendants.

1:17–cv–01097–LJO–SKO

United States District Court, E.D. California.

Signed April 10, 2018

Jeff Dominic Price, Jeff Dominic Price, APC, Santa Monica, CA, Sanjay Stephen Schmidt, Law Office of Sanjay S. Schmidt, San Francisco, CA, for Plaintiff.

Marshall Scott Fontes, Bakersfield, CA, Hugh Spackman, Maureen Elizabeth Clark, Clinkenbeard, Ramsey, Spackman & Clark LLP, Santa Barbara, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT

(ECF No. 18)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I.INTRODUCTION

This case arises from the death of Kimberly Morrissey–Scalia("Decedent" or "Morrissey–Scalia"), who died after twice falling from her bunk while a pretrial detainee at Kern County Jail.Decedent's husband, John Scalia("Plaintiff"), brings claims individually and on behalf of his late wife's estate.Plaintiff brings this case against Kern County, Kern County Hospital Authority("KCHA"), Kern County SheriffDonny Youngblood, Kern County Sheriff's Sergeant Joel Swanson, Kern County Sheriff's Detention Deputies Randi Allen and Misty Miller, Kern County Hospital Authority Staff NurseRowena P. Blakely("Blakely"), and Does 1–100, alleging deliberate indifference under 42 U.S.C. § 1983 and state law causes of action for Bane Act violations, failure to summon medical care pursuant to California Government Code § 845.6, negligence, and medical negligence.

Defendants KCHA and Blakely (collectively, for purposes of this motion, "Defendants") moved to dismiss ("Motion").ECF No. 18.Plaintiff opposed ("Opp."), ECF No. 24, and Defendants filed a reply ("Reply"), ECF No. 25.This matter is suitable for disposition without oral argument.SeeLocalRule 230(g).For the reasons set forth below, Defendants' motion to dismiss is GRANTED IN PART .

II.FACTUAL BACKGROUND

Decedent, a 59–year–old woman, was arrested following an incident at her residence with her roommate on June 22, 2016.FAC ¶¶ 1, 17.She had a history of mental illness, alcohol dependence, and "medical and mental health problems" involving prescription medications.Id.¶ 18.Because of her history of suicide attempts, she was initially placed on suicide watch by the intake staff after her booking.Id.She was removed from suicide watch and on or about June 27, 2016, she was transferred from the Central Receiving Facility to the Lerdo Pre–Trial Facility, in Bakersfield, where she was housed in B–Pod.Id.¶¶ 20–22.That same day, at approximately 11:15 p.m., Decedent fell approximately five feet from a lying position on a top bunk onto the bare concrete floor.Id.¶ 23.She pressed her emergency intercom button to alert KCO Detention Deputies that she had been injured and was transported "to the ‘infirmary’ in a wheelchair, as she was unable to walk."Id.¶ 24.Staff nurse Blakely saw Decedent at the infirmary, where Decedent reported falling from the top bunk and hitting the left side of her face, her left elbow, and her left knee, which was bleeding.Id.¶ 25.She also had a bump over her left eyebrow as a result of the fall.Id.¶ 30.Blakely did not order tests to assess potential head trauma or refer Decedent to a physician before clearing Decedent to return to B–Pod.Id.¶ 25.

Decedent was returned to B–Pod, in a different cell, where she again fell from her bunk at some point prior to 2:24 a.m. on June 28, 2016.Id.¶ 48.She used her emergency intercom to alert jail staff that she was vomiting and required medical care.Id.She was unconscious and vomiting when Defendant Allen arrived in the cell.At approximately 2:30 a.m., Blakely responded to Allen's request for medical staff.Decedent was placed on a gurney and transported to the jail infirmary, where Blakely took her vital signs and at approximately 2:37 a.m. made a 911 request for transport to Kern Medical Emergency room.Id.¶¶ 52, 54.The ambulance arrived at Lerdo at approximately 2:53 a.m., left Lerdo at approximately 3:15 a.m., and arrived at Kern Medical Center at approximately 3:40 a.m. Id.¶¶ 55–57.Decedent was taken into emergency surgery around 8:20 a.m. and was later placed on life support.Id.¶¶ 57, 63.She passed away shortly after midnight on the morning of July 1, 2016.Id.¶ 63.

III.LEGAL STANDARD

Dismissal is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure when a plaintiff's allegations fail "to state a claim upon which relief can be granted."Fed. R. Civ. P. 12(b)(6).A dismissal under Rule 12(b)(6)"can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."Balistreri v. Pacifica Police Dep't,901 F.2d 696, 699(9th Cir.1990).In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor.Lazy Y Ranch LTD. v. Behrens , 546 F.3d 580, 588(9th Cir.2008).

Federal Rule of Civil Procedure 9(b) requires a party alleging fraud to "state with particularity the circumstances constituting [the] fraud [.]"Fed. R. Civ. P. 9(b).This heightened pleading standard requires the party to do more than simply identify a transaction and allege in a conclusory manner that the transaction was fraudulent.SeeIn re GlenFed, Inc. Sec. Litig. , 42 F.3d 1541, 1548(9th Cir.1994)(en banc), superseded by statute on other grounds .Rather, the party must set forth in detail "the who, what, when, where, and how" of the alleged fraudulent conduct.Vess v. Ciba–Geigy Corp. USA , 317 F.3d 1097, 1106(9th Cir.2003)(citation omitted).

The purpose of Rule 9(b) is to protect defendants from factually baseless claims of fraud inasmuch as it is meant to give defendants notice of the claims asserted against them.SeeKearns v. Ford Motor Co. , 567 F.3d 1120, 1125(9th Cir.2009).When a party averring fraud fails to meet the heightened pleading standard of Rule 9(b), dismissal of the claim is proper.SeeVess , 317 F.3d at 1107("A motion to dismiss a complaint or claim ‘grounded in fraud’ under Rule 9(b) for failure to plead with particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for failure to state a claim.").

IV.ANALYSIS

A.First Cause Of Action: 42 U.S.C. § 1983 Claim As To Blakely

The Civil Rights Act, codified at 42 U.S.C. § 1983, provides in relevant part:

Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983."[ Section]1983‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ "Graham v. Connor , 490 U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d 443(1989)(quotingBaker v. McCollan , 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433(1979) ).

Furthermore, § 1983 requires that there be an actual connection or link between the actions of Defendants and the constitutional deprivations alleged to have been suffered by Plaintiff.SeeMonell v. Dep't of Social Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611(1978).The Ninth Circuit has held that "[a] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made."Johnson v. Duffy , 588 F.2d 740, 743(9th Cir.1978).In order to state a claim for relief under § 1983, Plaintiff must satisfy the "linkage requirement"—meaning that he must link each named Defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.Plaintiff must specify which Defendant(s)he feels are responsible for each violation of his constitutional rights and the factual basis, as his Complaint must put each Defendant on notice of Plaintiff's claims against him or her.SeeAustin v. Terhune , 367 F.3d 1167, 1171(9th Cir.2004).

A § 1983 action premised on violation of the Fourteenth Amendment for inadequate medical care requires allegations that each defendant acted with deliberate indifference to the decedent's serious medical needs.Castro v. County of Los Angeles , 833 F.3d 1060, 1067–68(9th Cir.2016)(en banc).Inmates bringing deliberate indifference claims against prison officials "may do so under the Eighth Amendment's Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment's Due Process Clause."Id. at 1067–68;see alsoMendiola–Martinez v. Arpaio , 836 F.3d 1239, 1246 n.5(9th Cir.2016)("Eighth Amendment protections apply only once a prisoner has been convicted of a crime, while pretrial detainees are entitled to the potentially more expansive protections of the Due Process Clause of the Fourteenth Amendment.").Under either clause, a plaintiff must show that the prison officials acted with "deliberate indifference."Id. at 1068.

The test for demonstrating deliberate indifference is in two parts.First, a plaintiff"must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain."Jett v. Penner , 439 F.3d 1091, 1096(9th Cir.2006)(internal quotation marks omitted).Second, a plaintiff must show that "the defendant's response to the need was deliberately indifferent."Id.A showing of deliberate indifference requires...