Free Motion to Dismiss - District Court of California - California

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

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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 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.

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No. 07-cv-2221-BEN(NLS) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT Date: July 7, 2008 Time: 10:30 a.m. Dept.: 3 - Court room of the Honorable Roger T. Benitez Trial Date: None

CASE STATEMENT On February 16, 2007, plaintiff, who resided in his mother's house, trapped her in her bedroom until she managed to escape from him and lock herself in another room. (Cmplt. ¶ 11, 12.) After escaping, she called the police to intervene. (Cmplt. ¶ 13.) Escondido police arrived and arrested the plaintiff; then delivered him into the custody of the County of San Diego Sheriff Department's Vista Detention Facility. (Cmplt. ¶¶16, 17.) Plaintiff alleges that his mother advised the arresting officers that he had paranoid schizophrenia, a prescription medication regimen, that she gave the arresting officers plaintiff's medication, and that his mother informed the officers that she wanted them to
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take plaintiff to a mental facility. (Cmplt. ¶¶ 14, 18.) Plaintiff does not allege that he or his mother called an ambulance for medical care. Plaintiff specifically alleges that the arresting officers did not inform Vista Detention Facility personnel of his illness or medication. (Cmplt. ¶ 27.) At paragraph 27 plaintiff alleges that the arresting officers: "Failed and refused to provide PLAINTIFF with medically necessary care, by among other things: a. Failing to provide PLAINTIFF'S medication to the personnel at Vista Detention Center and/or; b. Failing to advise the personnel at Vista Detention Center of PLAINTIFF'S mental condition." On February 18, 2007, while in the Vista Detention Facility plaintiff alleges he "fell from atop a bunk bed, breaking his neck." (Cmplt. ¶ 23.) Plaintiff does not allege he was susceptible to falling for any reason, or that he attempted suicide. Neither does he allege that anyone was informed that he was susceptible to falling or suicidal. The complaint contains eleven causes of action. The sixth through eleventh causes of action are directed against the County and County personnel. In each cause of action plaintiff claims violation of the Fifth Amendment. Replete throughout all causes of action is plaintiff's allegation that the County and its personnel failed to assess plaintiff for mental illness and so to categorize him as mentally ill and to provide him with his prescribed medication. (Cmplt. ¶ 59 of Sixth C/A - § 1983 civil rights violation; ¶¶ 66, 68 of Seventh C/A - § 1983 Failure to Intervene; ¶¶ 71, 74, 75 of Eighth C/A - § 1983 Failure to Train and Supervise; ¶¶ 77, 78, 79 of Ninth C/A - § 1983 Monell; ¶¶ 81, 82, 83, 86 of Tenth C/A - Negligence; ¶¶ 88, 92 of Eleventh C/A - Claims under Americans With Disabilities Act, Rehabilitation Act, California Fair Employment and Housing Act, and California Unruh Act.) For the reasons stated below, defendant moves for dismissal of any and all claims plaintiff is asserting under the Fifth Amendment; for dismissal of the Tenth cause of action for negligence; and for dismissal of the Eleventh cause of action. /// /// -207-cv-2221-BEN(NLS)

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I NO FIFTH AMENDMENT CLAIM IS STATED BECAUSE THE COUNTY AND ITS EMPLOYEES ARE NOT A COMPONENT OF THE FEDERAL GOVERNMENT Plaintiff expressly alleges in the Sixth and Seventh causes of action that defendant's personnel violated his Fifth Amendment rights. (Cmplt.¶¶ 57, 69.) The allegation is incorporated by reference in the eighth through eleventh causes of action. (Cmplt. ¶¶ 71, 77, 81, 88.) No Fifth Amendment cause of action can be stated against the County or its employees because the Due Process Clause and equal protection component of the Fifth Amendment apply only to the actions of the federal government, and not to the actions of state or local governments. Davis v. Passman, 442 U.S. 228, 234 (1979). Insofar as the complaint alleges claims against fictitiously named Doe defendants who are alleged to be County employees, the complaint would fail to state a Fifth Amendment claim since none are federal actors. II NO CAUSE OF ACTION FOR NEGLIGENCE CAN BE STATED AGAINST THE COUNTY BECAUSE IT IS IMMUNE TO LIABILITY FOR PRISONER INJURIES, MEDICAL MALPRACTICE, AND BECAUSE NO CAUSE OF ACTION CAN BE STATED AGAINST THE COUNTY FOR NEGLIGENT HIRING, TRAINING OR SUPERVISION A. No State Law Claim For Injuries Received In Jail Can Be Stated Against The County Because The County Is Immune To Liability For Injuries To Prisoners.

Under Government Code section 844.6 no liability can be imposed on a public entity for any injury to a prisoner resulting from an act of the prisoner himself, acts of other prisoners, acts of prison employees, or acts of prison invitees, whether committed negligently or willfully. Lowman v. County of Los Angeles, 127 Cal.App.3d 613, 616 (1982) [no liability for prisoner death allegedly caused by medical negligence and clarifying there is no dangerous condition liability for injuries to prisoners]; see also Badiggo v. County of Ventura, 207 Cal.App.3d 357, 360-61 (1989) [no premises liability for injury to prisoner due to slip and fall in facility]; Terzian v. County of Ventura, 24 -307-cv-2221-BEN(NLS)

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Cal.App.4th 78 (1994) [no liability for prisoner death allegedly due to medical negligence]; Wright v. State of California, 122 Cal.App.4th 659, 672 (2004) [no liability to prisoner for negligence]. Plaintiff alleges he was a prisoner incarcerated in the Vista Detention Facility when on February 18, 2007, he "fell from atop a bunk bed, breaking his neck". An arrestee brought into a law enforcement facility for the purpose of being booked becomes a prisoner upon his or her initial entry into a jail. Gov't. Code § 844. For purposes of section 844.6, even pretrial detainees are prisoners. Reed v. County of Santa Clara, 37 Cal.App.4th 1274, 1276 (1995). Plaintiff's tenth cause of action against the County for negligence is foreclosed by Government Code section 844.6. The tenth cause of action for negligence should therefore be dismissed without leave to amend. B. The County is Immune to Liability for Plaintiff's Mental Illness.

In the tenth cause of action plaintiff also alleges that defendant failed to provide him with necessary medical care, and for failed to assess and categorize him as mentally ill; that is to say that defendants failed to diagnose and treat his mental illness. Although plaintiff alleges that he was schizophrenic and consuming medications for that condition, and that arresting officers were so informed of his illness and medication regimen by his mother, he does not allege he or his mother similarly informed jail personnel. Rather he absolves County jail personnel of any misconduct. At paragraph 27 of the complaint, he alleges that the arresting officers did not inform Vista Detention Facility personnel of his illness or medication stating that the arresting officers "Failed and refused to provide PLAINTIFF with medically necessary care, by among other things: a. Failing to provide PLAINTIFF'S medication to the personnel at Vista Detention Center and/or; b. Failing to advise the personnel at Vista Detention Center of PLAINTIFF'S mental condition." Plaintiff alleges he "fell from atop a bunk bed, breaking his neck". He does not allege he was susceptible to falling for any reason including his paranoid schizophrenia. He does not allege he attempted suicide. Nor does he allege that anyone was informed of any such matters. Rather the gist of his claim is that the County should have discovered -407-cv-2221-BEN(NLS)

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he was mentally ill and accordingly rendered preventative treatment. However, pursuant to Government Code sections 844.6, 855.6, and 855.8, the County is immune to liability for claims of medical malpractice, for failing to conduct a mental examination, and for failing to diagnose that a person is inflicted with mental illness. Neither the County nor its employees can be held liable for failing to conduct a mental examination of plaintiff, or failing to diagnose him as being afflicted with mental illness. Section 855.6 states in pertinent part: "Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee . . . is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination." Section 855.8 (a) states: "Neither a public entity nor a public employee . . . is liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction." If plaintiff's negligence allegation is construed as a claim for medical malpractice, it also must be dismissed because medical malpractice actions cannot be stated against a public entity, such as the County of San Diego, because public entities cannot be held directly liable for medical malpractice. Nelson v. State of California, 139 Cal.App.3d 72, 78 (1982); Watson v. State of California, 21 Cal.App.4th 836, 842 (1993). A public entity is also not vicariously liable for the medical malpractice of its employees. Watson, 21 Cal.App.4th at 842. "The standards of medical care to be provided to prisoners involve basic governmental policy that should not be subject to review in tort suits for damages." Nelson, 139 Cal.App.3d at 78. C. The County Cannot Be Sued For Negligent Training and Supervision.

In the tenth cause of action, plaintiff alleges that the County is liable for negligence because it negligently failed to properly train and supervise its employees as a result of which plaintiff was injured. (Cmplt. ¶ 86.) The complaint fails to state a negligence claim against the County because negligent hiring, training, and supervision is not a -507-cv-2221-BEN(NLS)

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statutory theory of recovery that can be maintained against the County under the California Tort Claims Act ("CTCA"). DeVillers v. County of San Diego, 156 Cal.App.4th 238, 256 (4th DCA 2007); Van Ort v. Estate of Stanewich, 92 F.3d 831, 840 (9th Cir. 1996). The CTCA provides the exclusive scope of tort liability for government entities and employees. Govt. Code § 810 et seq.; see also Legislative Committee Comment to Govt. Code § 814 . "[T]he intent of the [CTCA] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances." Williams v. Horvath, 16 Cal.3d 834, 838 (1976). Common law governmental tort liability was eliminated by the CTCA. Datil v. City of Los Angeles, 263 Cal.App.2d 655, 660 (1968). As a result, in California all governmental tort liability whether against a public entity or its employees is dependent on the existence of an authorizing statute. Searcy v. Hemet Unified School Dist., 177 Cal.App.3d 792, 802 (1986); Govt. Code § 815(a). With respect to plaintiff's claim for negligent hiring, training and supervision, there is no statute that authorizes that claim against public entities. In enacting the CTCA, the California Legislature considered and rejected the theory of negligent personnel administration as an independent basis of governmental liability in enacting the CTCA. In 1963, the California Law Revision Commission drafted a proposed Government Code section 815.8 which would have made public entities liable for injuries caused by its employees if the injury was proximately caused by the public entity's failure to exercise due care in selecting the employee or continuing to retain an employee whose retention created an unreasonable risk of injury. Proposed section 815.8 read as follows: "A public entity is liable for an injury caused by an employee of the public entity if the injury was proximately caused by the failure of the appointing power of the public entity to: (a) /// -607-cv-2221-BEN(NLS)

Exercise due care in selecting or appointing the employee; or

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(b) Exercise due care to eliminate the risk of such injury after the appointing power had knowledge or notice that the conduct, or the continued retention, of the employee in the position to which he was assigned created an unreasonable risk of such injury." California Law Revision Commission, Reports Recommendations and Studies, Vol. 4, (1963) p. 840. Proposed section 815.8 was deleted by the California Legislature in the first set of amendments to the bill. This section of the bill (as introduced), which made public entities directly liable for failure to exercise due care in appointing or in failing to remove or discipline employees, was deleted. The deletion of this section does not affect liability imposed by other provisions of the statute, such as sections 815.2, 820, and 820.8. Journal of the Senate, Vol. 2 (1963) p. 1888. Because there is no statutorily imposed duty owed by the County to the plaintiff relative to the manner in which the County hires, trains or supervises its employees, no claim asserting negligent hiring and supervision can be maintained against it. DeVillers, 156 Cal.App.4th at 256. Plaintiff's tenth cause of action must therefore be dismissed. III NO CAUSE OF ACTION FOR INDIVIDUAL LIABILITY CAN BE STATED AGAINST COUNTY PERSONNEL UNDER THE AMERICANS WITH DISABILITIES ACT, REHABILITATION ACT, CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT OR UNRUH ACT Plaintiff's eleventh cause of action asserts four different bases for discrimination liability against the County and its employees. He alleges violation of the Americans with Disabilities "ADA" (42 U.S.C. § 12131 et seq.), the Rehabilitation Act (29 U.S.C. § 794 et seq.), California Fair Employment and Housing Act "FEHA" (Cal.Govt. Code § 12920 et seq.), and the California Banes Act (Cal.Civ.Code § 51). To the extent plaintiff's claims for violation of the ADA and the Rehabilitation Act are asserted against individual County employees, it should be dismissed because neither Act provides for individual liability. Prison officials cannot be sued individually under the Americans with Disabilities Act which prohibits discrimination in employment, public services, or public accommodations because prison officials are not prisoners' -707-cv-2221-BEN(NLS)

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employers, the Act's provision against discrimination in public services does not allow for individual liability (42 U.SC. § 12132 is directed against public entities), and prison officials are not individuals who own the facility so as to be liable under the Act's prohibition of discrimination in public accommodations. Damron v. N.D. Comm'r of Corrections, 299 F.Supp.2d 970, 976 (D.N.D. 2004). Likewise, the Rehabilitation Act does not provide for individual liability. Allah v. Goord, 405 F.Supp.2d 265, 279 (SDNY 2005). In the eleventh cause of action plaintiff cites to California Government Code section 12926, a section of the California Fair Employment and Housing Act. FEHA prohibits discrimination against persons seeking to obtain or retain employment and housing. Cal. Govt. Code § 12920. No FEHA claim is stated by the eleventh cause of action based on plaintiff's incarceration within the jail. As concerns employment discrimination, no FEHA claim is stated because plaintiff was an incarcerated prisoner; not a jail employee or job applicant discriminated against on account of his alleged mental disability. As concerns FEHA's prohibition of housing discrimination, it means the discriminatory refusal to sell, rent, or lease housing accommodations. Cal. Gov't Code § 12927(c)(1). Plaintiff's cell occupancy was not based on a sale, rental or leasehold. There are additional reasons why plaintiff's FEHA claim against the County is precluded. Pursuant to Government Code section 844.6 the County is insulated against damages claims by prisoners such as the plaintiff. And the FEHA claim is precluded because before a claimant can file a civil complaint alleging a FEHA violation, the claimant must first file an administrative complaint with the Department of Fair Employment and Housing so to exhaust administrative remedies under the Act. Balloon v. Superior Court, 39 Cal.App.4th 1116, 1120 (1995). Here, plaintiff does not allege he filed a FEHA administrative complaint. In the eleventh cause of action plaintiff also cites to and purportedly asserts a claim under California Civil Code section 51; the Banes Act which prohibits arbitrary discrimination by business establishments on account of sex, race, color, religion, -807-cv-2221-BEN(NLS)

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ancestry, national origin, or disability. No claim is stated under Civil Code section 51 because the jail is not a business establishment. Taormina v. California Dep't. of Corrections, 946 F.Supp. 829, 833-834 (S.D. CA 1996). Also plaintiff is precluded from asserting any section 51 claim against the County because Government Code section 844.6 insulates the County against damages claims by prisoners such as the plaintiff. CONCLUSION Based on the foregoing, any and all claims asserted in the complaint based on the Fifth Amendment should be dismissed; plaintiff's tenth cause of action for negligence should be dismissed; and the eleventh cause of action should be dismissed insofar as the ADA and Rehabilitation Acts do not provide for individual liability claims; no FEHA claim is stated; and no Civil Code section 51 claim is stated therein. DATED: May 7, 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]

-907-cv-2221-BEN(NLS)