“Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment, however, we apply the same standards.”
How later courts described this case
- “Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to prisoners’ rights under the Eighth Amendment, however, we apply the same standards.”
- “A 16 district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all 17 claims over which it has original jurisdiction.’”
- “Fourth Amendment rights are personal 22 ‘and may not be vicariously asserted.’”
- “At issue here is whether a ‘detention,’ which 18 does not require probable cause, evolved into an ‘arrest,’ which must be supported by 19 probable cause.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 J.K.J., individually, and successor in Case No.: 19-CV-2123-CAB-RBB
interest to the Deceased, ALEAH
11
JENKINS, by and through his guardian- ORDER GRANTING MOTION TO
12 ad-litem, JEREMY HILLYER, DISMISS
13 Plaintiff,
[Doc. No. 7]
14 v.
15 CITY OF SAN DIEGO et al.,
16 Defendants.
17
18 This matter is before the Court on Defendants’ motion to dismiss the complaint. The
19 motion has been fully briefed, and the Court held a hearing on February 13, 2020. For the
20 following reasons, the motion is granted.
21 I. Allegations in the Complaint
22 On November 27, 2018, Defendant San Diego Police Officers Lawrence Durbin,
23 Nicholas Casciola, and Jason Taub pulled over a vehicle in the La Jolla neighborhood of
24 San Diego for having an expired registration. [Doc. No. 1 at ¶¶ 27, 36.] Aleah Mariah
25 Jenkins was a backseat passenger in the vehicle. [Id.] During the stop, Jenkins was
26 responsive and answered questions posed by the officers. [Id. at ¶ 28.] She also “complied
27 with [the officers’] request that she be handcuffed, and she gave [them] permission . . . to
28 search her and her belongings.” [Id.]
1 At some point, Jenkins was placed in a patrol car where she began vomiting. [Id. at
2 ¶ 30.] One of the officers asked Jenkins if she was “withdrawing” and told her to stick her
3 head out of the car window. [Id.] In response, Jenkins told Durbin that she was sick and
4 was pregnant. [Id.] Durbin then told one of the other officers, “don’t worry about it.” [Id.]
5 After Jenkins had vomited on herself, Durbin told her that “because she had once
6 been arrested on her twin sister’s warrant, he needed to take her downtown to police
7 headquarters for fingerprinting.” [Id. at ¶ 32.] Jenkins then asked Durbin for a napkin and
8 some water, and Durbin responded that he did not have anything to give her but that he
9 would get her some water when they got to the watch commander. [Id.] Durbin then began
10 driving Jenkins to San Diego Police headquarters in downtown San Diego. [Id. at 34.]
11 During the drive to police headquarters, Jenkins complained of feeling sick and
12 asked Durbin for water several times. [Id. at 35.] She repeatedly asked Durbin for help,
13 and at one point screamed in distress and said, “Please, help me!” [Id.] Durbin “ignored
14 her repeated pleas for help and dismissed them.” [Id. at ¶ 37.] He also asked Jenkins
15 “What’s going on?” and “What are you doing?” [Id. at ¶ 38.] At one point during the drive,
16 Durbin got out of the car and reprimanded Jenkins, telling her “to knock it off” and telling
17 her, “you’re fine.” [Id. at ¶ 39.] During this stop, Durbin opened the door to the patrol car
18 which cause Jenkins to partially fall out of the car. [Id.] Durbin “pushed her body back
19 into the back seat and slammed the vehicle door on her.” [Id.]
20 The drive to police headquarters took over an hour. [Id. at ¶ 40.] During the drive,
21 Durbin did not “summon medical care, request assistance from other officers, inform
22 dispatch that [Jenkins] may need medical attention, and/or take [Jenkins] to any number of
23 hospitals on the route.” [Id.] Upon arrival at police headquarters, when Durbin opened the
24 back door to his patrol car, Jenkins began screaming for help, to which Durbin responded,
25 “Stop hyperventilating. You’re doing that to yourself.” [Id. at ¶ 41.] He also told her she
26 was “faking it” and that it could lead to another charge if she continued to resist.” [Id.]
27 Durbin then pulled Jenkins out of the patrol car and laid her on the ground. [Id. at ¶
28 42.] He took Jenkins fingerprints while she was on the ground and placed her back into
1 the patrol car. [Id.] Some time later, Durbin returned to the patrol car to check on Jenkins.
2 [Id. at ¶ 43.] He then summoned medical attention, stating “I can’t tell if she is breathing
3 or not.” [Id.] Jenkins subsequently went into a coma and then died on December 6, 2018.
4 [Id. at ¶ 44.]
5 On December 13, 2019, Jenkins’ minor son, J.K.J., through his biological father and
6 general guardian Jeremy Hillyer, filed this lawsuit, naming Casciola, Taub, and Durbin in
7 their individual capacities, David Nisleit, in his individual capacity and in his official
8 capacity as chief of police for the San Diego Police Department, and the City of San Diego,
9 as defendants. Defendants now move to dismiss the entire complaint or in the alternative
10 to strike Plaintiff’s claim for punitive damages.
11 II. Legal Standard for Motions to Dismiss
12 The familiar standards on a motion to dismiss apply here. To survive a motion to
13 dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted
14 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
15 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus,
16 the Court “accept[s] factual allegations in the complaint as true and construe[s] the
17 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire
18 & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is
19 “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556
20 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as
21 true allegations that contradict exhibits attached to the Complaint or matters properly
22 subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions
23 of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
24 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory
25 factual content, and reasonable inferences from that content, must be plausibly suggestive
26 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
27 Cir. 2009) (quotation marks omitted).
28
1 III. Discussion
2 The complaint asserts six claims—four under 42 U.S.C. § 1983, and two under
3 California state law. The four § 1983 claims are labeled: (1) unreasonable search and
4 seizure—detention and arrest; (2) unreasonable search and seizure—denial of medical
5 care; (3) municipal liability for unconstitutional custom or policy; and (4) deprivation of
6 life without due process. The third claim is made against the City and Police Chief Nisleit,
7 while the other three are against Officers Casciola, Taub, and Durbin. The complaint also
8 asserts a claim for negligence under California Government Code § 820 and California
9 common law against all defendants, and a claim for failure to summon immediate medical
10 care under California Government Code § 845.6 against the City and Officers Casciola,
11 Taub, and Durbin.
12 A. Survival Claims versus Wrongful Death Claims
13 A fundamental flaw in the complaint concerns its failure to distinguish between
14 Jenkins’ claims that survive her death (if any), commonly referred to as “survival claims,”
15 and claims of J.K.J. for his injuries resulting from Jenkins’ death, commonly referred to as
16 “wrongful death” claims. The complaint categorizes each of the six claims as being both
17 a survival and wrongful death claim.
18 1. Survival Claims
19 “In a survival action, a decedent’s estate may recover damages on behalf of the
20 decedent for injuries that the decedent has sustained. In a wrongful death action, by
21 comparison, the decedent’s dependents may only pursue claims for personal injuries they
22 have suffered as a result of a wrongful death.” Davis v. Bender Shipbuilding & Repair Co.,
23 27 F.3d 426, 429 (9th Cir.1994)). “[U]nlike a wrongful death action, a survival action is a
24 cause of action that existed while the decedent is alive and survives the decedent.” Adams
25 v. Superior Court, 196 Cal. App. 4th 71, 78-79 (Cal. Ct. App. 2011). “A claim under 42
26 U.S.C. § 1983 survives the decedent if the claim accrued before the decedent’s death, and
27 if state law authorizes a survival action.” Tatum v. City & Cty. of San Francisco, 441 F.3d
28 1090, 1094 (9th Cir. 2006). “The party seeking to bring a survival action bears the burden
1 of demonstrating that a particular state’s law authorizes a survival action and that the
2 plaintiff meets that state’s requirements for bringing a survival action.” Hayes v. Cty. of
3 San Diego, 736 F.3d 1223, 1228–29 (9th Cir. 2013) (citation omitted). Thus, to survive a
4 motion to dismiss Plaintiff’s survival claims, the complaint must satisfy California’s
5 requirements.
6 “California’s statutory requirements for standing to bring a survival action are stated
7 under California Code of Civil Procedure § 377.30: ‘A cause of action that survives the
8 death of the person entitled to commence an action or proceeding passes to the decedent’s
9 successor in interest ..., and an action may be commenced by the decedent’s personal
10 representative or, if none, by the decedent’s successor in interest.’” Hayes, 736 F.3d at
11 1229; see also Tatum, 441 F.3d at 1093 n.2 (“Where there is no personal representative for
12 the estate, the decedent’s ‘successor in interest’ may prosecute the survival action if the
13 person purporting to act as successor in interest satisfies the requirements of California
14 law. . . .”). Here, J.K.J. alleges that he is Jenkins’ successor in interest pursuant to
15 California Code of Civil Procedure § 377.60(a). Section 377.60(a), however, concerns
16 standing for wrongful death actions. Stennett v. Miller, 34 Cal. App. 5th 284, 290 (Cal. Ct.
17 App. 2019).
18 Pursuant to California Code of Civil Procedure § 377.32, a survival action in
19 California must be accompanied by an affidavit including, among other things, “[i]f the
20 decedent’s estate was administered, a copy of the final order showing the distribution of
21 the decedent’s cause of action to the successor in interest,” along with facts supporting
22 statements that the affiant is either the decedent’s successor in interest or is authorized to
23 act on the successor in interest’s behalf, in the action. Cal. Civ. Proc. Code § 377.32(4)-
24 (5). Contrary to Plaintiff’s opposition brief, this requirement has not been satisfied here
25 through Jeremy Hillyer’s declaration that he is J.K.J.’s general guardian. Whether Hillyer
26 is J.K.J.’s general guardian is a separate issue from the question of whether J.K.J. is
27 Jenkins’ successor in interest, which for the purposes of filing a survival action, “means
28 the beneficiary of the decedent’s estate or other successor in interest who succeeds to a
1 cause of action or to a particular item of the property that is the subject of a cause of action.”
2 Cal. Civ. Proc. Code § 377.11. Accordingly, because Plaintiff has not satisfied the
3 requirements under California law for bringing a survival action, any claim intended to be
4 a survival claim is dismissed on this basis alone.1
5 2. Wrongful Death Claims
6 “In California, a wrongful death cause of action ‘is wholly statutory in origin.’”
7 Stennett, 34 Cal. App. 5th at 290. The wrongful death statute, California Code of Civil
8 Procedure § 377.60, specifies who may bring a wrongful death claim and “is strictly
9 construed.” Id. Under Section 377.60(a), a “cause of action for the death of a person
10 caused by the wrongful act or neglect of another may be asserted by,” among others, the
11 decedent’s “children,” or by “the decedent’s personal representative on their behalf.”
12 Section 1983 actions may only be survival actions. See Estate of Lopez v. Torres,
13 105 F. Supp. 3d 1148, 1159 (S.D. Cal. 2015); see also Herd v. County of San Francisco,
14 311 F. Supp. 3d 1157, 1163-64 (C.D. Cal. 2018) (dismissing minor daughter’s individual
15 § 1983 claim for excessive force and denial of medical treatment arising out of the shooting
16 of her father by police, stating that “Plaintiff A.G. may not bring these claims personally
17 because she was not directly subjected to excessive force or denied medical treatment.”).
18 Thus, “‘wrongful death’ actions by a surviving relative cannot be brought under Section
19 1983, as constitutional rights cannot be vicariously asserted.” Hernandez-Cortina v. Cty.
20 of Riverside, No. EDCV1801579DDPSPX, 2019 WL 403957, at *3 (C.D. Cal. Jan. 30,
21 2019); see also Herd, 311 F. Supp. 3d at 1165 (“Fourth Amendment rights are personal
22 ‘and may not be vicariously asserted.’”) (quoting Alderman v. United States, 394 U.S. 165,
23 174 (1969)). Accordingly, to the extent the four federal claims, each brought under 42
24
25
1 See generally Hayes, 736 F.3d at 1229 (“While claiming she is the decedent’s ‘sole surviving heir,’
26 Appellant fails to allege that she is her father’s personal representative or successor in interest. Indeed,
Appellant argues only that standing is appropriate under section 377.60, not section 377.30. There is no
27 indication whether Appellant has filed the affidavit necessary under California law to commence a survival
action as a decedent’s successor in interest, see Cal.Civ.Proc.Code § 377.32, or whether survival claims
28
1 U.S.C. § 1983, are intended to be wrongful death claims seeking damages for J.K.J.’s
2 injuries, they are dismissed with prejudice.2
3 B. Section 1983 Claims Against Officers Casciola and Taub
4 A second flaw in the complaint is that it groups the three officers who participated
5 in the initial traffic stop together and alleges that they are all equally liable for five of the
6 six claims asserted. Yet, “[l]iability under § 1983 must be based on the personal
7 involvement of the defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).
8 “The inquiry into causation must be individualized and focus on the duties and
9 responsibilities of each individual defendant whose acts or omissions are alleged to have
10 caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
11 Here, the only event where Officers Casciola and Taub had any role was the initial traffic
12 stop, which the complaint does not allege was improper. Aside from their participation in
13 the initial traffic stop itself, the complaint does not allege any facts about Officers Casciola
14 or Taub that could support a finding of liability under any claims asserted in the complaint.
15 The only allegations concerning Jenkins’ medical condition while Officers Casciola and
16 Taub were present in some capacity was that she vomited on herself and said it was because
17 she was pregnant and sick. These outward signs of sickness, in light of Jenkins’
18 explanation and Officer Durbin telling them “don’t worry about it” [Doc. No. 1 at ¶ 30],
19
20
21 2 Because Plaintiff has not satisfied California’s requirements to bring a survival action, and the § 1983
claims cannot be wrongful death claims, the only claims not subject to dismissal at this point in the analysis
22 are the state law wrongful death claims. As discussed in Section III.G., infra, the Court declines
supplemental jurisdiction over the remaining state law claims, so this opinion does not address whether
23 Plaintiff has standing to bring those claims as a wrongful death action. That being said, California’s
intermediate appellate court recently held that the term “children” as used in Section 377.60(a) is
24
ambiguous, and that “the legislative history confirms that when the Legislature used the term ‘children’
25 in section 377.60, it referred to persons entitled to take from the decedent under California’s intestate
succession laws.” Stennett, 34 Cal. App. 5th at 293. The Court held that “the fact that [the decedent] is
26 her biological father, without more, is not enough to create wrongful death standing.” Id. at 296. Based
on this authority, the complaint’s allegation that J.K.J. is the natural born child of the decedent, particularly
27 in light of evidence in the record that Jenkins did not have custody of J.K.J. at the time of her death [Doc.
No. 5], may not be sufficient to establish J.K.J.’s standing to assert wrongful death claims under California
28
1 do not, without more, create a plausible claim that Officer Casciola or Officer Taub violated
2 Jenkins’ constitutional rights or acted negligently for not immediately obtaining medical
3 care for her.
4 Further, because Officers Casciola and Taub were not present for the drive
5 downtown, they cannot be held liable based on any change in Jenkins’ condition during
6 that drive or afterward. See generally Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
7 (“Liability under section 1983 arises only upon a showing of personal participation by the
8 defendant.”). Thus, because the complaint does not state a claim against Officers Casciola
9 or Taub based on whatever limited roles they had during the traffic stop, it is dismissed
10 without prejudice as to any claims against Officers Casciola and Taub.
11 C. Unreasonable Search and Seizure—Detention and Arrest
12 The complaint asserts this claim against Officers Casciola, Taub, and Durbin, but
13 for the reasons discussed above, it is dismissed as to Officers Casciola and Taub.
14 Moreover, because Plaintiff fails to comply with California’s requirements for a survival
15 action, and because this claim cannot be brought as a wrongful death action, the claim must
16 be dismissed as to Officer Durbin as well. Nevertheless, even assuming Plaintiff has or
17 can satisfy the requirements for standing to assert a survival claim under this theory against
18 Officer Durbin, this claim still must be dismissed because the complaint fails to allege
19 sufficient facts, taken as true, to state a plausible survival claim against Officer Durbin.
20 The claim is only for wrongful “detention and arrest” of Jenkins. The complaint
21 does not allege that the initial stop of the vehicle in which Jenkins was a backseat passenger
22 was wrongful, and as discussed above, Casciola and Taub’s involvement was limited to
23 the stop itself. The complaint then generally alleges that the three officers detained Jenkins
24 without reasonable suspicion and arrested her without probable cause in violation of her
25 right to be secure against unreasonable searches and seizures under the Fourth Amendment
26 to the Constitution as applied to state actors pursuant to the Fourteenth Amendment. [Doc.
27 No. 1 ¶¶ 50.] It alleges that the three officers “are liable . . . either because they were
28 integral participants in the wrongful detention and arrest, or because they failed to intervene
1 to prevent these violations.” [Id. ¶ 52.] According to the complaint, the only reason given
2 to Jenkins for her detention was that because she had been arrested once on her twin sister’s
3 warrant, they needed to take her downtown to police headquarters for fingerprinting. [Id.
4 ¶ 53.]
5 “The Fourth Amendment protects ‘[t]he right of the people to be secure in their
6 persons ... against unreasonable ... seizures.’” Manuel v. City of Joliet, Ill., 137 S. Ct. 911,
7 917 (2017). “Whenever an officer restrains the freedom of a person to walk away, he has
8 seized that person.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). “[A]n investigative
9 detention must be temporary and last no longer than is necessary to effectuate the purpose
10 of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983).
11 In the motion to dismiss, Defendants argue that the complaint lacks adequate factual
12 allegations concerning if and when Jenkins’ detention became an arrest. This distinction
13 is relevant because a “detention” does not require probable cause, while an “arrest” must
14 be supported by probable cause. See Gallegos v. City of Los Angeles, 308 F.3d 987, 990
15 (9th Cir. 2002) (“If Gallegos’s detention was an arrest, the Constitution requires that the
16 arresting officers have probable cause to justify their actions.”); see also United States v.
17 Bravo, 295 F.3d 1002, 1009 (9th Cir. 2002) (“At issue here is whether a ‘detention,’ which
18 does not require probable cause, evolved into an ‘arrest,’ which must be supported by
19 probable cause.”). The opposition, meanwhile, completely ignores the distinction,
20 referring to this claim only as one for “unlawful arrest” and arguing only that the complaint
21 alleges adequate facts to demonstrate the lack of probable cause. Accordingly, the Court
22 considers any claim that the detention of Jenkins was unconstitutional to have been
23 abandoned and considers only whether the complaint adequately alleges an unlawful arrest.
24 Necessarily, to state a claim for unlawful arrest, the complaint must adequately
25 allege that Durbin arrested Jenkins. “[N]ot every detention by law enforcement officials
26 amounts to arrest or custody under the Fourth Amendment. Arrests and detentions are both
27 ‘seizures’ under the Fourth Amendment, but only the former requires a showing of
28 probable cause, while the latter can be justified by reasonable suspicion of criminal
1 activity.” United States v. Charley, 396 F.3d 1074, 1079 (9th Cir. 2005) (citing Brown v.
2 Texas, 443 U.S. 47, 51 (1999)). “There is no bright line rule for determining when an
3 investigatory stop crosses the line and becomes an arrest.” Gallegos, 308 F.3d at 991
4 (internal quotation marks and citation omitted). “[A]n investigative detention does not
5 automatically become an arrest when officers draw their guns, . . . use handcuffs, . . . or
6 place a suspect in the back of a patrol car. Gallegos, 308 F.3d at 991. “[T]he police may
7 move a suspect without exceeding the bounds of an investigative detention when it is a
8 reasonable means of achieving the legitimate goals of the detention ‘given the specific
9 circumstances’ of the case.” Charley, 396 F.3d at 1080.
10 Here, the complaint alleges only that Durbin handcuffed Jenkins and took her
11 downtown to police headquarters in the back of his police cruiser for fingerprinting because
12 she had previously been arrested on her twin sister’s arrest warrant. These facts, without
13 more, do not automatically convert the detention of Jenkins into an arrest. See generally
14 Gallegos, 308 F.3d at 991-92 (holding that no arrest occurred when police stopped the
15 plaintiff in his truck, drew their guns on him and ordered him to exit the truck, handcuffed
16 him and transported him to scene of a burglary, where a witness said that he was not the
17 burglar). It is unfortunate that Durbin encountered traffic on the way to the station
18 extending the detention to over an hour, but the “cases impose no rigid time limitation on
19 Terry stops.” Id. at 992 (quoting United States v. Sharpe, 470 U.S. 675, 685 (1985)).
20 Moreover, there are no allegations that Durbin did anything to unnecessarily delay the
21 detention.
22 Ultimately the alleged point of the detention, based on the allegations in the
23 complaint, was to confirm Jenkins’ identity through fingerprinting because she has a twin
24 sister. There are no factual allegations that the investigation itself was not legitimate, such
25 as that there was no outstanding arrest warrant on either Jenkins or her twin sister (or that
26
27
28
1 she does not have a twin sister), or that the method being pursued was unreasonable. That
2 Jenkins became ill and ultimately went into a coma before the fingerprint identification
3 could be completed does not convert the stop into an arrest. Taking the allegations in the
4 complaint as true, the complaint does not allege an arrest, making the alleged lack of
5 probable cause immaterial. Accordingly, the first claim for unlawful arrest without
6 probable cause does not state a claim and is subject to dismissal on this ground as well.
7 D. Unreasonable Search and Seizure—Denial of Medical Care
8 The complaint asserts that this claim is premised on a violation of Jenkins’ Fourth
9 Amendment rights applied to state actors by the Fourteenth Amendment. Plaintiff
10 mistakenly argues that this claim arises under the Fourth Amendment based on Tatum v.
11 City and Cty. of S.F., 441 F.3d 1090, 1098-99 (9th Cir. 2006). Tatum, however, concerned
12 a claim that officers’ decision not to perform CPR on an arrested suspect constituted
13 excessive force. Tatum, 441 F.3d at 1098. More recent authority, meanwhile, holds that
14 a claim for denial of medical care by a pretrial detainee arises out of the Fourteenth
15 Amendment’s Due Process Clause. Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067-
16 68 (9th Cir. 2016) (en banc). Accordingly, the Court analyzes whether the complaint states
17 a claim for deliberate indifference to Jenkins’ medical needs under the Fourteenth
18 Amendment.
19 “In the Ninth Circuit, the test for deliberate indifference consists of two parts.” Jett
20 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The plaintiff “must first show a ‘serious
21 medical need’ by demonstrating that ‘failure to treat [plaintiff’s] condition could result in
22 further significant injury or the ‘unnecessary and wanton infliction of pain.’” Edmo v.
23 Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019) (internal quotation marks omitted) (citing
24
25
26
3 Allegations that Durbin could have proceeded in a different manner to confirm Jenkins’ identity will not
27 necessarily cure this defect in the complaint. “The Fourth Amendment does not mandate one and only
one way for police to confirm the identity of a suspect. It requires that the government and its agents act
28
1 Jett, 439 F.3d at 1096). Upon demonstration of a serious medical need, the plaintiff must
2 then show that the defendant’s response was deliberately indifferent. Id. at 786. The
3 deliberate indifference standard is an objective one. Gordon v. Cty. of Orange, 888 F.3d
4 1118, 1124–25 (9th Cir. 2018) (citing Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1070
5 (9th Cir. 2016) (en banc)); cf. Narcisse v. Tafesse, No. 5:16-CV-00682-EJD, 2019 WL
6 4417635, at *5 (N.D. Cal. Sept. 16, 2019) (holding that Gordon focused only on the
7 requisite state of mind for a defendant’s conduct and did not eliminate the requirement that
8 plaintiffs also show the existence of a serious medical need). The Ninth Circuit recently
9 enumerated the objective deliberate indifference components as:
10 (i) the defendant made an intentional decision with respect to the conditions
under which the plaintiff was confined; (ii) those conditions put the plaintiff
11
at substantial risk of suffering serious harm; (iii) the defendant did not take
12 reasonable available measures to abate that risk, even though a reasonable
official in the circumstances would have appreciated the high degree of risk
13
involved—making the consequences of the defendant's conduct obvious; and
14 (iv) by not taking such measures, the defendant caused the plaintiff's injuries.
15
Gordon, 888 F.3d at 1125. The Ninth Circuit further explained:
16
“With respect to the third element, the defendant’s conduct must be
17 objectively unreasonable, a test that will necessarily ‘turn[ ] on the facts and
circumstances of each particular case.’” [Castro, 833 F.3d] at 1071 (quoting
18
Kingsley, 135 S.Ct. at 2473; Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct.
19 1865, 104 L.Ed.2d 443 (1989)). The “‘mere lack of due care by a state official’
does not deprive an individual of life, liberty, or property under the Fourteenth
20
Amendment.” Id. (quoting Daniels, 474 U.S. at 330–31, 106 S.Ct. 662). Thus,
21 the plaintiff must “prove more than negligence but less than subjective
intent—something akin to reckless disregard.” Id.
22
23 Id. “A court must make this determination from the perspective of a reasonable officer on
24
25
4 Although Edmo and Jett consider claims for denial of medical care in violation of a prisoner’s Eighth
26 Amendment rights, the analysis is identical to a claim for a pretrial detainee’s claim for denial of medical
care in violation of her Fourteenth Amendment due process rights. Frost v. Agnos, 152 F.3d 1124, 1128
27 (9th Cir. 1998) (“Because pretrial detainees’ rights under the Fourteenth Amendment are comparable to
prisoners’ rights under the Eighth Amendment, however, we apply the same standards.”).
28
1 the scene, including what the officer knew at the time, not with the 20/20 vision of
2 hindsight.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); see also Neuroth v.
3 Mendocino Cty., No. 15-CV-03226-RS, 2018 WL 4181957, at *10 (N.D. Cal. Aug. 31,
4 2018) (“Deliberate indifference claims, however, cannot be evaluated on the basis of 20/20
5 hindsight.”).
6 Here, the complaint does not adequately allege a serious medical need based on what
7 any of the officers knew at the time at least until Jenkins and Durbin arrived at police
8 headquarters and Jenkins became unconscious. Before then, the only factual allegations
9 about Jenkins’ condition are that she vomited, which she told Durbin was because she was
10 pregnant and sick, and that she groaned, grumbled, and asked for water and help during the
11 ride from the traffic stop to police headquarters. [Doc. No. 1 at ¶¶ 30, 35.] The complaint
12 repeatedly states that Jenkins “displayed obvious signs of extreme physical distress and
13 needed medical attention” [Id. at ¶ 36; see also id. at ¶¶ 39, 40], but other than Jenkins
14 vomiting one time (which she attributed to her pregnancy) and her non-specific requests
15 for help, the complaint does not allege what those obvious signs of distress were. Indeed,
16 based on the allegations in the complaint, Jenkins had no visible physical injuries, she was
17 conscious for the entire trip to police headquarters, and she even started “screaming for
18 help,” after they arrived at the station. [Id. at ¶ 41.] Thus, based on the allegations in the
19 complaint there does not appear to be any indication that Jenkins had a serious medical
20 need such that it would have been objectively apparent that she was at risk of serious injury
21 or death if she did not receive immediate treatment.
22 Even assuming that the allegations in the complaint were sufficient to demonstrate
23 a serious medical need, the allegations do not support a plausible claim that Durbin’s
24 response was objectively deliberately indifferent. Jenkins’ vomit and pleas for help,
25 without more, and particularly in light of Jenkins’ statement that the vomit was the result
26 of a pregnancy and illness, would not have caused a reasonable officer in the circumstances
27 to have appreciated that there was a high degree of risk in not taking her to a hospital or
28 calling an ambulance. Only with the 20/20 vision of hindsight based on the tragic outcome
1 could it be found that a reasonable officer in Durbin’s situation would have known that,
2 assuming the truth of all of the factual allegations about Jenkins’ condition during the
3 traffic stop and on the ride to police headquarters, proceeding to the station instead of to a
4 hospital would have obvious serious medical consequences. Accordingly, the Court finds
5 that the complaint does not state a claim for denial of medical care in violation of Jenkins’
6 Fourteenth Amendment Due Process rights.
7 E. Deprivation of Life Without Due Process
8 Defendants argue in their motion that this claim is duplicative of the denial of
9 medical care claim. In the opposition, Plaintiff does not argue otherwise, stating only that
10 claim is governed by the same standards as the denial of medical care claim. Accordingly,
11 this claim is dismissed for the same reasons as the denial of medical care claim.
12 F. Municipal Liability
13 The complaint also asserts a claim against the City and Police Chief Nisleit for the
14 alleged constitutional violations that allegedly resulted in Jenkins’ death. “Neither a
15 municipality nor a supervisor, however, can be held liable under § 1983 where no injury
16 or constitutional violation has occurred.” See Jackson v. City of Bremerton, 268 F.3d 646,
17 653–54 (9th Cir. 2001) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
18 Thus, because the complaint fails to state a claim for violation of Jenkins’ constitutional
19 rights, this claim fails as well. Moreover, even assuming the complaint does state a claim
20 for violation of Jenkins’ constitutional rights against Officers Durbin, Casciola, or Taub,
21 this claim would be subject to dismissal as discussed below.
22 1. Police Chief Nisleit
23 The complaint purports to sue Chief Nisleit in both his individual and official
24 capacities. “A supervisor is only liable for constitutional violations of his subordinates if
25 the supervisor participated in or directed the violations, or knew of the violations and failed
26 to act to prevent them. There is no respondeat superior liability under section 1983.”
27 Taylor, 880 F.2d at 1045 (citing Ybarra v. Reno Thunderbird Mobile Home Village, 723
28 F.2d 675, 680–81 (9th Cir. 1984)); see also Iqbal, 556 U.S. at 676 (“Based on the rules our
1 precedents establish, respondent correctly concedes that Government officials may not be
2 held liable for the unconstitutional conduct of their subordinates under a theory of
3 respondeat superior.”). The complaint makes no allegation that Chief Nisleit participated
4 in, directed, or was even aware of the traffic stop and subsequent detention of Jenkins.
5 Accordingly, any individual claims against Chief Nisleit are dismissed on this ground as
6 well.
7 Further, “[w]hen both a municipal officer and a local government entity are named,
8 and the officer is named only in an official capacity, the court may dismiss the officer as a
9 redundant defendant.” Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep't,
10 533 F.3d 780, 799 (9th Cir. 2008); see also Kentucky v. Graham, 473 U.S. 159, 167 (1985)
11 (“There is no longer a need to bring official-capacity actions against local government
12 officials, for under Monell [], local government units can be sued directly for damages and
13 injunctive or declaratory relief.”). Having dismissed the individual capacity claims against
14 Chief Nisleit, the official capacity claims are therefore subject to dismissal because they
15 are also brought against the City, making Chief Nisleit a redundant defendant.
16 2. The City
17 Following Monell v. Department of Social Services, 436 U.S. 658 (1978), “it is well-
18 settled that in claims brought under 42 U.S.C. § 1983, municipalities are liable only for
19 constitutional violations resulting from an official ‘policy or custom.’” Fed’n of African
20 Am. Contractors v. City of Oakland, 96 F.3d 1204, 1216 (9th Cir. 1996) (quoting Monell,
21 436 U.S. at 694). “[A] municipality cannot be held liable solely because it employs a
22 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a
23 respondeat superior theory.” Monell, 436 U.S. at 691 (emphasis in original). “Where a
24 court fails to adhere to rigorous requirements of culpability and causation, municipal
25 liability collapses into respondeat superior liability.” Bd. of Cty. Comm’rs v. Brown, 520
26 U.S. 397, 415 (1997). Put differently, “a municipality sued under § 1983 is not subject to
27 vicarious liability for the acts of its agents.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1141
28 (9th Cir. 2001).
1 “The ‘first inquiry in any case alleging municipal liability under § 1983 is the
2 question whether there is a direct causal link between a municipal policy or custom and the
3 alleged constitutional deprivation.’” Castro, 833 F.3d at 1075 (quoting City of Canton,
4 Ohio v. Harris, 489 U.S. 378, 392 (1989)). “[I]t is not enough for a § 1983 plaintiff to
5 merely identify conduct properly attributable to the municipality. The plaintiff must also
6 demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’
7 behind the injury alleged.” Brown, 520 U.S. at 404. “A plaintiff cannot prove the existence
8 of a municipal policy or custom based on solely on the occurrence of a single incident of
9 unconstitutional action by a non-policymaking employee.” Davis v. City of Ellensburg,
10 869 F.2d 1230, 1233-34 (9th Cir. 1989); see also City of Canton, 489 U.S. at 391
11 (“[A]dequately trained officers occasionally make mistakes; the fact that they do says little
12 about the training program or the legal basis for holding the city liable.”).
13 The complaint does not adequately allege a specific official municipal policy that
14 caused any of the constitutional violations (inadequately) alleged in the complaint. The
15 vague purported “policies” listed in paragraph 65 of the complaint and relied on in the
16 opposition by Plaintiff are merely conclusory statements that, if sufficient, would
17 effectively hold the City liable simply for employing Officers Durbin, Casciola, and Taub
18 and simply because Jenkins’ constitutional rights were allegedly violated. Indeed, the first
19 purported “policy” alleges that Officers Durbin, Casciola, and Taub were not following
20 written official policies, implying that if the City’s policies had been followed, the alleged
21 constitutional violations would not have occurred. [Doc. No. 1 at ¶ 65.a.] “Mere
22 negligence in training or supervision . . . does not give rise to a Monell claim.” Dougherty
23 v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Meanwhile, other purported
24 “policies” were specific to what happened with Jenkins as opposed to generally applicable
25 policies. Accordingly, even if the complaint stated a plausible claim for violation of
26 Jenkins’ constitutional rights, the Monell claims would be subject to dismissal.
27 G. State Law Claims
28 Having dismissed Plaintiff’s federal claims, the Court’s “decision of whether to
1 exercise supplemental jurisdiction over the remaining state law claims ‘is purely
2 discretionary.’” Couture v. Wells Fargo Bank, N.A., No. 11-CV-1096-IEG (CAB), 2011
3 WL 3489955, at *4 (S.D. Cal. Aug. 9, 2011) (quoting Carlsbad Tech., Inc. v. HIF Bio, Inc.,
4 556 U.S. 635, 639 (2009)); see also Holt v. First Franklin Fin. Corp., No. C 10-5929 SBA,
5 2011 WL 4595195, *4 (N.D. Cal. Sept. 30, 2011) (“When the federal claims that served as
6 the basis for jurisdiction are eliminated, either through dismissal by the court or by a
7 plaintiff amending his or her complaint, federal courts may decline to assert supplemental
8 jurisdiction over the remaining state law causes of action.”) (citing 28 U.S.C. § 1367(c)(3)).
9 Here, because the Court is dismissing the only federal claims at the outset of the
10 litigation, it is more appropriate to decline supplemental jurisdiction over the state law
11 claims than to wade into the plainly state law issues that remain in this case. See Carnegie-
12 Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (holding that “when the federal-law
13 claims have dropped out of the lawsuit in its early stages and only state-law claims remain,
14 the federal court should decline the exercise of jurisdiction by dismissing the case without
15 prejudice”); see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“A
16 district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all
17 claims over which it has original jurisdiction.’”) (quoting 28 U.S.C. § 1367(c)(3)).
18 Moreover, other grounds listed in 28 U.S.C. § 1367(c) also support declining
19 supplemental jurisdiction. In particular, the state law claims raise several novel and
20 complex issues of state law including: (a) whether Plaintiff has standing to bring a wrongful
21 death claim under California law, see Note 2, supra; and (b) statutory immunity under the
22 California Government Code. See 28 U.S.C. § 1367(c)(1). Further, the federal claims are
23 survival claims, meaning that, to the extent he has standing, J.K.J. is seeking relief for
24 Jenkins’ injuries for her heirs. On the other hand, the state claims are wrongful death claims
25 seeking relief for J.K.J.’s personal injuries. Thus, J.K.J. asserts the state claims in an
26 entirely different capacity as a plaintiff. This exceptional circumstance is another
27 compelling reason for declining jurisdiction. See 28 U.S.C. § 1367(c)(4).
28
1 IV. Disposition
2 As discussed above, it is hereby ORDERED as follows:
3 1. Defendants’ motion to dismiss is GRANTED;
4 2. All wrongful death claims under 42 U.S.C. § 1983 are DISMISSED WITH
5 PREJUDICE;
6 3. Claims one, two, and four for relief under 42 U.S.C. § 1983 as survival claims
7 are DISMISSED WITHOUT PREJUDICE;
8 4. Claim three for relief under 42 U.S.C. § 1983 is DISMISSED WITHOUT
9 PREJUDICE as a survival claim against the City, and DISMISSED WITH
10 PREJUDICE as to David Nisleit;
11 5. The Court declines to exercise supplemental jurisdiction over claims five and six.
12 Those claims are DISMISSED WITHOUT PREJUDICE to refiling in state
13 court; and,
14 6. Plaintiff may file an amended complaint no later than March 13, 2020. If an
15 amended complaint is not filed by that date, the Clerk of Court shall close this
16 case.
17 It is SO ORDERED.
18 || Dated: February 13, 2020 € Z
19
Hon. Cathy Ann Bencivengo
20 United States District Judge
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