Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02221-BEN-NLS

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Filed 06/24/2008

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JOHN J. SANSONE, County Counsel (State Bar No. 103060) County of San Diego By RICKY R. SANCHEZ, Senior Deputy (State Bar No. 107559) DAVID BRODIE, Senior Deputy (State Bar No. 156855) 1600 Pacific Highway, Room 355 San Diego, California 92101-2469 Telephone: (619) 531-4874; Fax: (619) 531-6005 E-mail: [email protected] Attorneys for Defendant County of San Diego

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

HENRY KODIMER, by and through (sic) ) his guardian ad litem, LYN RAMSKILL, ) ) ) Plaintiff, ) ) v. ) CITY OF ESCONDIDO; COUNTY OF ) ) SAN DIEGO; OFFICER WYSE; ) OFFICER UMSTOT; SERGEANT DISTEL; and Doe Defendants 1 through ) ) 10, inclusive, ) ) Defendants. )

No. 07-cv-2221-BEN(NLS) REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Date: July 7, 2008 Time: 10:30 a.m. Dept.: 3 - Court room of the Honorable Roger T. Benitez Trial Date: None

The following deficiencies in plaintiff's complaint were identified by the County's motion to dismiss: 1) No Fifth Amendment claim can be stated against the County and its employees. 2) Because the County of San Diego cannot be sued for medical malpractice, or negligent hiring training and supervision, and it is otherwise immune to liability for injury to prisoners under Government Code section 844.6 the County of San Diego cannot be sued for negligence. Contrary to plaintiff's opposition, The County cannot even be held vicariously liable for injuries to prisoners caused by the negligence of its employees. Lowman v. County of Los Angeles, 127 Cal.App.3d 613, 616 (1982). Subpart
07-cv-2221-BEN(NLS)

Case 3:07-cv-02221-BEN-NLS

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(d) of section 844.6 even expressly provides that the County is not even required to indemnify employees against judgments for negligence. 3. Pursuant to the immunities provided by Government Code sections 855.6 and 855.8 the complaint cannot state a claim against the County or its employees for damages from injury resulting from diagnosing or failing to diagnose plaintiff as afflicted with mental illness, or from a failure to make an adequate physical or mental examination. 4 No Americans with Disabilities Act (ADA) claim can be asserted against any individual County employee. 5. No Rehabilitation Act claim can be asserted against any individual County employee. 6. No Fair Employment and Housing Act (FEHA) claim can be asserted against the County or its employees. 7. No Banes Act -Civil Code section 51 claim can be asserted against the County or its employees. Plaintiff's opposition memorandum does not contest the merits of defendant's motion except to argue that a negligence claim can be directed against the County if its employees failed to summon medical care for plaintiff in violation of Government Code section 845.6. Plaintiff's argument in that regard in wrong insofar as a cause of action for violation of section 845.6 is not a negligence action, but rather a statutory claim whereby liability can be imposed only if there is evidence to satisfy the elements of this statutory claim, that is evidence that a government employee a) "knows or has reason to know that the prisoner is in need of immediate medical care, and b) "he fails to take reasonable action to summon such medical care." Govt. Code § 845.6. And a section 845.6 claim cannot be premised on an alleged diagnosis or failure to diagnose the prisoner as being afflicted with mental illness, or from a failure to make an adequate physical or mental examination. Govt. Code § 845.6. Lastly, a section 845.6 claim is for an alleged failure to summon care not for a failure to administer care. Id. If, as plaintiff appears to argue in his opposition, there was a failure administer care, that would be a medical malpractice -207-cv-2221-BEN(NLS)

Case 3:07-cv-02221-BEN-NLS

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action against a medical provider which action cannot be asserted against the County. Nelson v. State of California, 139 Cal.App.3d 72, 78 (1982). Based on the moving papers and the foregoing, defendant's motion to dismiss should be granted with prejudice as to the Fifth Amendment claim, negligence claim against the County, Rehabilitation Act claim, FEHA claim, Banes Act claim, and ADA claim against individuals. Leave to file an amended complaint should be allowed, if at all, so as to make clear that the ADA claim is directed only against the County, and if plaintiff is to be allowed to amend to assert a Government Code section 845.6 cause of action against an employee the court should disallow any proposed amendment based on allegations of a diagnosis of or failure to diagnose the plaintiff as being afflicted with mental illness, or for a failure to make an adequate physical or mental examination in that such allegations cannot be a basis for 845.6 liability under Government Code sections 855.8 and 856; and the plaintiff should be made to clarify whether he is alleging he merely fell off his bed as presently allege or was suicidal and had attempted suicide when the injury occurred as argued in plaintiff's opposition memorandum. This matter is appropriate for disposition without oral argument. DATED: June 24, 2008 JOHN J. SANSONE, County Counsel By: s/ RICKY R. SANCHEZ, Senior Deputy DAVID BRODIE, Senior Deputy Attorneys for Defendant County of San Diego E-mail: [email protected]

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Declaration of Service I, the undersigned, declare: That I am over the age of eighteen years and not a party to the case; I am employed in, or am a resident of, the County of San Diego, California where the service occurred; and my business address is: 1600 Pacific Highway, Room 355, San Diego, California. On June 24, 2008, I served the following documents: Reply Memorandum Of Points And Authorities In Support Of Motion To Dismiss in the following manner: By personally delivering copies to the person served. By placing a copy in a separate envelope, with postage fully prepaid, for each addressee named below and depositing each in the U. S. Mail at San Diego, California. By electronic filing, I served each of the above referenced documents by E-filing, in accordance with the rules governing the electronic filing of documents in the United States District Court for the Southern District of California, as to the following parties: Richard T. Copeland, Esq. Moreno & Perez 714 West Olympic Boulevard, #450 Los Angeles, California 90015 (213) 745-6300 (213) 745-6060 (fax) E-mail: [email protected] (Attorneys for Plaintiff Henry Kodimer, by and through his Guardian ad Litem, Lyn Ramskill) Michael R McGuinness, Deputy City Attorney's Office 201 N. Broadway Escondido, CA 92025 (760) 839-4608 (760) 741-7541 (fax) E:mail: [email protected] (Attorneys for Defendants City of Escondido, Officer Wyse, Officer Umstot, Sergeant Distel)

I declare under penalty of perjury that the foregoing is true and correct. Executed on June 24, 2008, at San Diego, California. By: s/ RICKY R. SANCHEZ E-mail: [email protected]

(Henry Kodimer, etc. v. City of Escondido, et al.; USDC No. 07-cv-2221-BEN(NLS))