clarifying that negligence per se is simply a codified 10 evidentiary doctrine that does not establish tort liability
How later courts described this case
- clarifying that negligence per se is simply a codified 10 evidentiary doctrine that does not establish tort liability
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 SHAWN EDWARD COOKS, No. 2:20-cv-1780 KJN P
12 Plaintiff,
13 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
14 STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS
15 AND REHABILITATION, et al.,
16 Defendants.
17
18 Plaintiff is a state prisoner, proceeding through counsel. Defendant State of California, by
19 and through the California Department of Corrections and Rehabilitation (“CDCR”), moves for
20 judgment on the pleadings as to all four causes of action alleged against the CDCR. Plaintiff filed
21 an opposition, and defendant CDCR filed a reply. As set forth below, it is recommended that the
22 motion be partially granted.
23 I. Plaintiff’s Complaint
24 On January 26, 2018, plaintiff broke his leg; defendant Dr. Lameer performed surgery,
25 inserting a metal plate and five screws (“the hardware”). Although the bone healed, plaintiff
26 continued to suffer extreme pain; on March 19, 2019, Dr. Lameer surgically removed the
27 hardware without first obtaining an MRI. About three hours post-surgery, plaintiff’s leg began
28 bleeding profusely and he was rushed to the emergency room. Plaintiff lost about three pints of
1 blood before the bleeding subsided and he was returned to his prison cell. From March 19, 2019,
2 to April 2, 2019, plaintiff’s leg continued bleeding, he remained in extreme pain, and was denied
3 emergency care by correctional officers. On April 2, 2019, plaintiff was returned to Dr. Lameer
4 to have the staples removed. However, due to the continued bleeding, plaintiff’s skin on his leg
5 had softened, rendering the staples ineffective; two staples had ripped through the soft tissue,
6 resulting in a gaping hole in his leg down to the bone (“hole”). Dr. Lameer ordered emergency
7 surgery, which was performed on April 5, 2019. Post-surgery, plaintiff was housed at the prison
8 infirmary for seven weeks and given IV antibiotics. During such housing, defendants failed to
9 comply with Dr. Lameer’s orders to change the sponge in the hole every three days, but rather the
10 sponge and wound dressing were not changed in over ten days. On April 15, 2019, plaintiff saw
11 Dr. Lameer, who forced the removal of the fetid sponge, without sedation, but Dr. Lameer was
12 only able to remove 80% of the sponge, which had fused to plaintiff’s flesh and bone, requiring
13 additional surgery. Surgery was not performed until April 17, 2019. Dr. Lameer ordered a total
14 of five surgeries on plaintiff within a thirty-three day period. Subsequently, plaintiff was
15 provided an MRI, revealing a completely-severed meniscus which caused the meniscus and knee
16 socket to become degenerative. Further surgery will be required to correct the damage to his leg
17 and knee, including but not limited to a prosthetic knee.
18 Plaintiff now suffers from PTSD and was prescribed medication for depression and sleep
19 disorder.
20 In addition to 50 Doe defendants, plaintiff names Dr. Lameer and the CDCR as
21 defendants. Plaintiff pleads four causes of action: (1) general negligence and medical
22 malpractice, citing California Government Code §§ 815.2 and 820(a); (2) public entity negligence
23 and medical malpractice under California Evidence Code § 669; (3) deprivation of plaintiff’s
24 federal civil rights in violation of 42 U.S.C. § 1983; and (4) violation of the Eighth Amendment;
25 plaintiff contends that the CDCR knew, or should have known, that the medical practice of Dr.
26 Lameer was substandard and so deficient that the continued use of Dr. Lameer’s services was the
27 moving force in violating plaintiff’s constitutional rights.
28 ////
1 II. Legal Standards: Motion for Judgment on the Pleadings
2 Under Federal Rule of Civil Procedure 12(c), judgment on the pleadings may be granted
3 when, accepting as true all material allegations contained in the nonmoving party’s pleadings, the
4 moving party is entitled to judgment as a matter of law. Chavez v United States, 683 F.3d 1102,
5 1108 (9th Cir. 2012). The applicable standard is essentially identical to the standard for a motion
6 to dismiss under Rule 12(b)(6). United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc.,
7 637 F.3d 1047, 1055 n.4 (9th Cir. 2011). Thus, although the Court must accept well-pleaded
8 facts as true, it is not required to accept mere conclusory allegations or conclusions of law. See
9 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
10 A motion for judgment on the pleadings should be granted “when there is no issue of
11 material fact in dispute, and the moving party is entitled to judgment as a matter of law.”
12 Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
13 III. Defendant CDCR’s Motion
14 Defendant CDCR contends that the first cause of action is not viable because plaintiff
15 failed to comply with the California Government Claims Act, filed this action beyond the statute
16 of limitations, and failed to submit an application to file a late claim. In addition, there is no state
17 entity liability arising from injury to a prison inmate like plaintiff.
18 Defendant argues that the second cause of action fails to state a statutory cause of action.
19 As to the third and fourth causes of action, alleging liability under 42 U.S.C. § 1983 and
20 the Eighth Amendment, such claims are not viable against state entities.
21 Therefore, defendant CDCR contends that it is entitled to judgment on the pleadings as to
22 all four causes of action.
23 IV. First Cause of Action1
24 Plaintiff’s first cause of action is based on general negligence and medical malpractice,
25 citing California Government Code §§ 815.2 and 820(a). Under § 820 of the California
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1 The undersigned finds it inappropriate to address defendant’s timeliness arguments as to
27 plaintiff’s compliance with the California Government Claims Act or the statute of limitations
because it requires evaluation of Board of Control documents not provided with the complaint
28 and therefore such issues are more appropriately addressed on summary judgment.
1 Government Code, “a public employee is liable for injury caused by his act or omission to the
2 same extent as a private person.” Cal. Gov’t Code § 820(a). Under § 815.2 of the California
3 Government Code, “[a] public entity is liable for injury proximately caused by an act or omission
4 of an employee of the public entity within the scope of his employment.” Cal. Gov’t Code
5 § 815.2(a).
6 California Government Code § 844.6 makes public entities immune from liability for an
7 injury to “any prisoner.” Id. See Castaneda v. Dep’t of Corr. & Rehab., 212 Cal. App. 4th 1051,
8 1069 (2013); Resendiz v. Cty. of Monterey, 2015 WL 3988495, at *6 (N.D. Cal. June 30, 2015).
9 “[S]overeign immunity is the rule in California; governmental liability is limited to exceptions
10 specifically set forth by statute.” Cochran v. Herzog Engraving Co., 155 Cal. App. 3d 405, 205
11 Cal. Rptr. 1 (1984).
12 As defendant contends, the CDCR is a public entity that cannot be liable for injuries
13 sustained by a prisoner. Cal. Govt. Code § 844.6, subd. (a) (“Notwithstanding any other
14 provision of this part, except as provided in this section and in sections 814, 814.2, 845.1, and
15 845.6, or in Title 2.1 (commencing with section 3500) of Part 3 of the Penal Code, a public entity
16 is not liable for . . . (2) An injury to any prisoner.”) “Prisoner” is defined as “an inmate of a
17 prison, jail or penal or correctional facility.” Cal. Gov’t Code § 844. Id. Plaintiff does not
18 dispute that at the time of the incidents alleged herein, he was a prisoner in the custody of the
19 CDCR, or that defendant CDCR properly defined plaintiff’s status as a prisoner. “Although a
20 public entity may be vicariously liable for the acts and omissions of its employees (Gov. Code,
21 § 815.2), that rule does not apply in the case of injuries to prisoners.” Lawson v. Superior Court,
22 180 Cal. App. 4th 1372, 1383 (2010) (discussing interplay of immunities in claims brought
23 pursuant to §§ 815.2, 844.6 and 845.6); see also Neuroth v. Mendocino Cty., 2016 WL 379806, at
24 *5 (N.D. Cal. Jan. 29, 2016) (dismissing state law claims against county without leave to amend,
25 finding it immune under § 844.6).
26 Plaintiff argues that nothing in § 844.6 exonerates a public employee who is lawfully
27 engaged in the practice of one of the healing arts from liability for injury proximately caused by
28 malpractice, or exonerates the public entity from its obligation to pay any judgment, compromise,
1 or settlement. (ECF No. 22 at 19-20.) However, as pointed out by defendant, while the CDCR
2 would be required to pay any judgment, compromise or settlement, § 844.6 only confirms that
3 public employees are not exonerated from liability under § 844.6. Id. (emphasis added). Thus,
4 while Dr. Lameer or other prison staff are not immune from liability under § 844.6, the CDCR, a
5 public entity, is immune from liability for an injury to “any prisoner,” including plaintiff.
6 Therefore, absent a statutory exception, plaintiff’s first and second causes of action against the
7 CDCR, a public entity, fail because the CDCR is immune from liability under California
8 Government Code § 844.6.
9 As noted above, there are statutory exceptions to § 844.6, one of which is failure to
10 summon medical care under California Government Code § 845.6. Plaintiff did not address
11 either § 844.6 or § 845.6 in his complaint. In his opposition, plaintiff now contends that the
12 CDCR is subject to liability under the exception for failure to summon medical care. Defendant
13 counters that because plaintiff failed to plead causes of action under California Code §§ 844.6 and
14 845.6 or include facts supporting such causes of action in the complaint, such new causes of
15 action are now barred by the statute of limitations. (ECF No. 23 at 9.)
16 Public entities and public employees are liable for injuries proximately caused to prisoners
17 where: (1) “the employee is acting within the scope of his [or her] employment,” (2) “the
18 employee knows or has reason to know that the prisoner is in need of immediate medical care,”
19 and (3) “he [or she] fails to take reasonable action to summon such medical care.” Cal. Govt.
20 Code § 845.6. Liability is limited to the failure to summon care for “serious and obvious medical
21 conditions requiring immediate care” of which the defendant has “actual or constructive
22 knowledge.” Watson v. State of California, 21 Cal. App. 4th 836, 841, 26 Cal. Rptr. 2d 262
23 (1993). California courts have held that failure to provide necessary medication or treatment
24 cannot be characterized as a failure to summon medical care claim. Nelson v. State of California,
25 139 Cal.App.3d 72, 81, 188 Cal. Rptr. 479 (1982). In addition, the duty to summon immediate
26 medical care pursuant to § 845.6 does not encompass a duty to assure that medical staff properly
27 diagnose and treat the condition or a duty to monitor the quality of care provided. Watson, 21
28 Cal. App. 4th at 841-843.
1 Here, plaintiff makes no allegation that he needed immediate care on a specific occasion
2 or that any CDCR employee failed to summon care for an immediate medical need. Rather,
3 plaintiff now claims that there was a “failure to take reasonable action to prevent the pain and
4 suffering of plaintiff.” (ECF No. 22 at 19.) Plaintiff states that he “suffered, begged, and
5 attempted to utilize proper administrative channels for medical aid,” but it wasn’t until he
6 received the MRI and assistance from doctors other than Dr. Lameer that “the injury and extent of
7 damage was causing a failure to heal.” (ECF No. 22 at 19.) Plaintiff fails to set forth specific
8 facts demonstrating that a CDCR employee knew or had reason to know that plaintiff was in need
9 of immediate medical care yet failed to summon care such that § 845.6 would apply. Rather,
10 plaintiff concedes that it was not until he received an MRI that such injury was discovered,
11 apparently referring to the previously-undiagnosed severed meniscus. Plaintiff’s allegations
12 support a claim for medical malpractice, but fail to identify “serious and obvious medical
13 conditions requiring immediate care” of which a particular CDCR employee had “actual or
14 constructive knowledge.” Watson, 21 Cal. App. 4th at 841. Plaintiff cites no legal authority
15 suggesting that his allegations would meet the narrow exception of California Government Code
16 § 845.6. Therefore, given the limited nature of this exception, the Court finds § 845.6 does not
17 apply based on the allegations set forth in plaintiff’s original complaint or his opposition.
18 That said, the undersigned observes that plaintiff has named Doe defendants. Therefore, it
19 is unclear whether plaintiff may be able to adduce facts or evidence through discovery that would
20 support a claim under § 845.6. Thus, the dismissal of plaintiff’s first claim is without prejudice to
21 plaintiff seeking leave to amend should plaintiff be able to allege facts or adduce evidence against
22 a specific CDCR employee that would meet the narrow exception under California Government
23 Code § 845.6.
24 V. Plaintiff’s Second Cause of Action
25 Plaintiff’s second cause of action alleges “public entity negligence -- medical
26 malpractice,” but relies on California Evidence Code § 669. (ECF No. 1 at 12.) Plaintiff appears
27 to claim that § 669 imposes liability under a negligence per se standard.
28 ////
1 “Negligence per se is an evidentiary presumption of liability that arises if a defendant is
2 shown to have ‘violated a statute, ordinance, or regulation of a public entity.’” Steel v. Alameda
3 Cnty. Sheriff's Off., 428 F. Supp. 3d 235, 245 (N.D. Cal. 2019), citing Cal. Evid. Code § 669.2
4 In California, negligence per se is “a presumption of negligence [that] arises from the violation of
5 a statute which was enacted to protect a class of persons of which the plaintiff is a member
6 against the type of harm which the plaintiff suffered as a result of the violation of the statute.”
7 People of California v. Kinder Morgan Energy Partners, L.P., 569 F.Supp.2d 1073, 1087 (S.D.
8 Cal. 2008) (citing cases). Negligence per se “is merely an evidentiary doctrine and not an
9 independent cause of action.” Id. (clarifying that negligence per se is simply a codified
10 evidentiary doctrine that does not establish tort liability). However, the facts giving rise to a
11 negligence claim -- not a violation of the statute or regulation itself -- are what entitle a plaintiff
12 to recover civil damages for negligence per se. Spencer v. DHI Mortg. Co., Ltd., 642 F.Supp.2d
13 1153, 1161-62 (E.D. Cal. June 30, 2009) (“The negligence per se doctrine assists as evidence to
14 prove negligence. . . . In such circumstances the plaintiff is not attempting to pursue a private
15 cause of action for violation of the statute; rather, he is pursuing a negligence action and is relying
16 upon the violation of a statute, ordinance, or regulation to establish part of that cause of action.”
17 (citations and internal quotation marks omitted).)
18 Plaintiff has pleaded sufficient facts to support his claim for medical malpractice. But
19 while the allegations supporting that underlying negligence claim might support civil damages for
20
2 Section 669 provides as follows: “(a) The failure of a person to exercise due care is presumed
21 if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation
proximately caused death or injury to person or property; (3) The death or injury resulted from an
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occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
23 (4) The person suffering the death or the injury to his person or property was one of the class of
persons for whose protection the statute, ordinance, or regulation was adopted. [¶] (b) This
24 presumption may be rebutted by proof that: (1) The person violating the statute, ordinance, or
regulation did what might reasonably be expected of a person of ordinary prudence, acting under
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similar circumstances, who desired to comply with the law; or (2) The person violating the
statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised
26
by persons of his maturity, intelligence, and capacity under similar circumstances, but the
27 presumption may not be rebutted by such proof if the violation occurred in the course of an
activity normally engaged in only by adults and requiring adult qualifications.” Cal. Evid. Code
28 § 669.
1 “negligence per se,” “negligence per se” is not an independent cause of action. See Spencer, 642
2 F.Supp.2d at 1161-62.
3 In opposition, plaintiff contends that his second cause of action based on “public entity
4 negligence -- medical malpractice” is viable under a theory of vicarious liability, citing California
5 Government Code §§ 815.2, 815.4, and 815.6. Plaintiff argues that unless the responsible
6 employee is entitled to immunity, the public entity is also vicariously liable. (ECF No. 22 at 20.)
7 In addition, plaintiff contends that where a public entity is under a mandatory duty imposed by an
8 enactment designed to protect against the risk of a particular injury, the public entity is liable for
9 injury of that kind proximately caused by his failure to discharge the duty, citing California
10 Government Code § 815.6. (ECF No. 22 at 20-21.) Plaintiff argues that a reasonable doctor has
11 a mandatory duty to properly evaluate what caused the failure to heal and the attendant
12 excruciating pain suffered by plaintiff.
13 However, “[p]ublic entities in California are not liable for tortious injury unless liability is
14 imposed by statute. (§ 815.).” Castaneda, 212 Cal. App. 4th at 1069; Becerra v. County of Santa
15 Cruz, 68 Cal.App.4th 1450, 1457, 81 Cal.Rptr.2d 165 (1998). Plaintiff identifies no statutory
16 liability, but rather relies on a general negligence standard. As stated above, California Evidence
17 Code § 669 does not establish an independent cause of action. Moreover, “[a]lthough a public
18 entity may be vicariously liable for the acts and omissions of its employees, that rule does not
19 apply in the case of injuries to prisoners.” Lawson v. Superior Court, 180 Cal. App. 4th 1372,
20 1383 (2020). “It is clear that the State is not vicariously liable for the medical malpractice of its
21 employees. . . . Although the State is required to pay the judgment assessed against its employees
22 for medical malpractice committed against a prisoner, the State is immune from suit directly.”
23 Flores v. Natividad Medical Center, 192 Cal. App. 3d 1106, 1115, 238 Cal. Rptr. 24 (1987)
24 (citations omitted).
25 The undersigned finds that plaintiff’s second cause of action fails to state a cause of action
26 against defendant CDCR, which is entitled to judgment on the pleadings.
27 ////
28 ////
1 VI. Third & Fourth Causes of Action
2 As to causes of action three and four, alleging violations of 42 U.S.C. § 1983 and the
3 Eighth Amendment, plaintiff named the CDCR as one of the defendants.
4 The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties
5 against a state or state agency unless the state or the agency consents to such suit. See Quern v.
6 Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978)( per curiam); Jackson v.
7 Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982).
8 In both his complaint and his opposition, plaintiff concedes that the CDCR is a public
9 entity. (ECF No. 1 at 4; 22 at 6.) In his opposition, plaintiff does not address the issue of
10 sovereign immunity. Rather, plaintiff misapprehends defendant CDCR’s arguments, claiming
11 that the CDCR “asserts the doctrine of qualified immunity protect government officials from
12 liability.” (ECF No. 22 at 21:17-18.) In the instant case, the State of California has not consented
13 to suit. Accordingly, plaintiff’s claims against the CDCR in causes of action three and four are
14 frivolous and must be dismissed.3
15 VII. Leave to Amend
16 Because the complaint must be dismissed as to CDCR, the court now addresses whether to
17 grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend
18 “shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule
19 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v.
20 Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks
21 omitted). When dismissing a complaint for failure to state a claim, “ ‘a district court should grant
22 leave to amend even if no request to amend the pleading was made, unless it determines that the
23 pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal
24 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing
25 3 In its reply, the CDCR claims that plaintiff appeared to make a vicarious liability argument with
respect to the third and fourth causes of action. However, the undersigned does not find that
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plaintiff made such argument and notes that plaintiff clearly addressed a theory of vicarious
27 liability in connection with the second cause of action. (ECF No. 22 at 20.) If plaintiff intended
to raise such theory in connection with his third and fourth causes of action he would have
28 included such language and provided legal authorities in support, but did not do so.
1 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the
2 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532
3 (9th Cir. 2008).
4 Here, plaintiff cannot amend the complaint to state a federal civil rights claim against the
5 CDCR because of sovereign immunity, and plaintiff cannot amend his second cause of action as
6 to the CDCR based on California Evidence Code § 669. Finally, the CDCR is immune from tort
7 liability including plaintiff’s medical malpractice claims, as alleged in the original complaint.
8 However, in an abundance of caution, the dismissal of plaintiff’s first claim should be without
9 prejudice to plaintiff seeking leave to amend should plaintiff be able to allege facts or adduce
10 evidence against a specific CDCR employee that would meet the narrow exception under
11 California Government Code § 845.6, as discussed above.4
12 VIII. Conclusion
13 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is
14 directed to assign a district judge to this case; and
15 Accordingly, IT IS HEREBY RECOMMENDED that:
16 1. Defendant CDCR’s motion for judgment on the pleadings (ECF No. 20) be partially
17 granted;
18 2. Plaintiff’s second, third and fourth causes of action as to defendant CDCR be
19 dismissed with prejudice; and
20 3. Plaintiff’s first cause of action as to defendant CDCR be dismissed without prejudice.
21 These findings and recommendations are submitted to the United States District Judge
22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
23 after being served with these findings and recommendations, any party may file written
24 objections with the court and serve a copy on all parties. Such a document should be captioned
25
4 By these findings and recommendations, the undersigned makes no findings or representations
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that such putative state law claim would not be subject to dismissal as untimely. Thus, in addition
27 to carefully reviewing the facts and evidence to determine whether plaintiff can meet the narrow
exception provided in § 845.6, plaintiff should consider the issue of timeliness before seeking
28 leave to amend.
1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
2 || objections shall be filed and served within fourteen days after service of the objections. The
3 || parties are advised that failure to file objections within the specified time may waive the right to
4 | appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
5 | Dated: June 10, 2022
Foci) Aharon
7 KENDALL J. NE
/eook1780.jop UNITED STATES MAGISTRATE JUDGE
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