“to be denied a reasonable 16 accommodation, an individual must first request that accommodation.”
How later courts described this case
- “to be denied a reasonable 16 accommodation, an individual must first request that accommodation.”
- failure to accommodate inmate who requested bottom bunk 18 was sufficient to provide notice of medical condition and need for accommodation
- inmate presented evidence establishing factual disputes on 4 whether defendants denied him access to lower tier and bottom bunk placement, in 5 violation of Title II
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 FRANKIE GREER, Case No.: 3:19-CV-0378-GPC-AGS
11 Plaintiff,
ORDER DENYING IN PART AND
12 v. GRANTING IN PART
DEFENDANTS’ MOTION TO
13 COUNTY OF SAN DIEGO, WILLIAM
DISMISS THE FIRST AMENDED
GORE, in his individual capacity,
14 COMPLAINT
ALFRED JOSHUA, in his individual
15 capacity, BARBARA LEE, in her
[ECF No. 18]
individual capacity, and DOES 1–100
16
Defendants.
17
18
Before the Court is Defendants’ motion to dismiss Plaintiff Frankie Greer’s
19
(“Plaintiff”) first amended complaint. ECF No. 18. The motion has been fully briefed.
20
ECF Nos. 22, 24.
21
I. Background
22
A. Factual Background
23
The instant litigation concerns events following the arrest and booking of Plaintiff
24
into the San Diego Central Jail (“the Jail”) on January 31, 2018. ECF No. 17 (“First
25
Amended Complaint” or “FAC”) ¶ 22. Plaintiff is a U.S. Army veteran who was treated
26
at a VA hospital for seizures and prescribed Levetiracetam to prevent his seizures. Id. ¶
27
21. After his arrest, Plaintiff informed the intake nurses he suffered from chronic
28
1 seizures and required medicine that was in his pants. Id. ¶ 26. He also asked the jail to
2 assign him a lower bunk, as Plaintiff feared he could fall off a top bunk during a seizure.
3 Id. ¶ 33. The medical staff failed to provide Plaintiff with his Levetiracetam, but they did
4 notate his need for a lower bunk in his paperwork. Id. ¶¶ 27, 28. However, the medical
5 staff failed to place the order for the lower bunk in the Jail Information Management
6 System (“JIMS”), and thus the jail staff assigned Plaintiff a top bunk. Id. at 29. After he
7 was assigned a top bunk, Plaintiff told the jail staff that he feared a top bunk and reported
8 he had previously fallen off from a bed due to a seizure. Id. ¶ 33. The deputy told
9 Plaintiff to get on the top bunk because all other beds in that cell were already taken. Id.
10 ¶ 34. Plaintiff alleges that the deputy did not inquire of the other inmates who were in
11 bottom bunks whether they needed to be in the bottom for any medical or other reason.
12 Id. ¶ 35. Plaintiff additionally alleges that the deputy did not look for any available
13 bottom bunks in other cells, and that the deputy failed to tell other jail staff that Plaintiff
14 suffered from a seizure disorder. Id. ¶¶ 36, 37.
15 On February 1, 2018, Plaintiff suffered a seizure while on his top bunk and fell off
16 the bed. Id. ¶ 38, 39. His head hit the concrete floor and he was rendered unconscious.
17 Id. Cellmates attempted to alert jail staff of Plaintiff’s fall through a cell intercom. Id.
18 However, because the intercom was silenced, his cellmates were unable to contact the
19 deputies. Id. ¶ 40. The silent intercom was against jail policy, and Plaintiff alleges that
20 Defendants had been aware of the deputies’ failure to abide by this intercom policy since
21 2016. Id. ¶ 48. The cellmates began yelling, “man down,” but the jail staff did not
22 respond. Id. ¶ 41. Fifteen minutes after Plaintiff’s fall, jail staff conducting regular
23 checks found Plaintiff and called for medical assistance. Id. Nurse staff arrived six
24 minutes later, and paramedics arrived approximately nine minutes after the nurses. Id. ¶¶
25 43, 44. Plaintiff was rendered unconscious for several weeks, and hospital records reveal
26 Plaintiff facial fractures, brain bleed, and respiratory failure. Id. ¶¶ 49, 50.
27 In addition, the jail failed to immediately alert Plaintiff’s next of kin about his
28 injury due to a failure to properly document Plaintiff’s next of kin. Id. ¶ 53. A nurse at
1 the University of California, San Diego turned to social media to find Plaintiff’s family
2 and make contact with them. Id. ¶ 54. For weeks, Plaintiff remained in a coma. Id.
3 When he regained consciousness, he could not recognize family and had suffered
4 significant brain injury. Id. ¶ 58.
5 Plaintiff alleges that on November 8, 2016, the San Diego Sheriff’s Department
6 contracted with the National Commission on Correctional Health Care (“NCCHC”) in
7 order to assist the jail in meeting health services compliance standards. Id. ¶¶ 64, 65.
8 The NCCHC issued a report in January 2017 and found that of the thirty-eight (38)
9 “essential standards” for accreditation, the jail failed to meet twenty-six (26) standards.
10 Id. ¶ 66. The NCCHC found that the jail had inadequate healthcare policies – including
11 the lack of any policy addressing the time frame between ordering medication and
12 receiving it from the pharmacist, and that there could be a delay of up to 30 hours in
13 completing of the booking of an inmate into the jail without being evaluated by health
14 staff. Id. ¶¶ 72, 73. Additionally, the jail failed to meet the NCCHC standard on chronic
15 disease services, requiring that an inmate suffering from chronic conditions (including
16 seizure disorder) be identified and enrolled in a chronic disease program based on
17 national clinical protocols. Id. ¶ 78-80. Plaintiff alleges that the NCCHC recommended
18 that the jail adopt new policies and procedures to remedy these deficiencies, but since
19 Defendants failed to implement these suggested changes, Plaintiff was denied the
20 necessary medication to prevent a seizure from occurring in his sleep. Id. ¶ 86.
21 Plaintiff also alleges that Defendants were on notice regarding the risk of inmates
22 sustaining injuries due to their falling out of the top bunk during their sleep or a seizure,
23 see id. ¶¶ 97, 98, pointing to the publication of a January 2018 article which showed that
24 the most common injury within jails involved inmates falling out of bunk beds, and that
25 seizure disorders are 4.5 times more common in jail inmates than in non-inmates. Id. ¶¶
26 90-91.
27 / / /
28
1 B. Procedural Background
2 On February 25, 2019, Plaintiff filed his original complaint alleging the following
3 causes of action: (1) Deliberate Indifference to Serious Medical Needs, (2) Failure to
4 Properly Train, (3) Failure to Properly Supervise and Discipline, (4) Failure to Properly
5 Investigate, (5) Section 1983 liability under Monell, (6) Common law negligence, (7)
6 Violations of the American Disabilities Act (“ADA”), and (8) Violations of 29 U.S.C. §
7 794(a) (“Rehabilitation Act”). On June 10, 2019, Defendants filed their motion to
8 dismiss claiming that Plaintiff failed to state a claim on which relief can be granted as to
9 the individual Defendants; that Plaintiff failed to allege sufficient facts to support any §
10 1983 claim, negligence, ADA or Rehabilitation Act claims; and that the County was
11 entitled to immunity as to state law claims. ECF No. 9-1.
12 On October 24, 2019, the Court denied in part and granted in part Defendants’
13 motion to dismiss the original complaint. ECF No. 16. The Court granted Plaintiff leave
14 to amend within 20 days of the order. Plaintiff filed a first amended complaint (“FAC”)
15 on November 13, 2019. ECF No. 17.
16 In the FAC, Plaintiff names as Defendants the County of San Diego (“County”),
17 Sheriff William Gore of San Diego County (“Gore”), Medical Director for the San Diego
18 Sheriff’s Department Alfred Joshua (“Joshua”), Medical Administrator for the San Diego
19 Sheriff’s Department Barbara Lee (“Lee”), and unknown Doe defendants working for the
20 San Diego County Sheriff’s Department (collectively “Defendants”) for injuries Plaintiff
21 suffered after falling from a top bunk onto a county jail concrete floor. The FAC re-
22 alleges all eight causes of action contained in the original complaint.
23 The FAC adds new allegations regarding the January 2017 NCCHC report on the
24 jail (FAC ¶¶ 64-87); allegations regarding falls from top bunks in jails (FAC ¶¶ 88-100);
25 allegations regarding previous deaths and injuries as a result of neglect and misconduct
26 (FAC ¶¶ 106-114); and violations of the Americans with Disability Act (“ADA”) and
27 Rehabilitation Act (FAC ¶¶ 132-153).
28
1 With the exception of the third cause of action, the Defendants attack each of the
2 remaining causes of action based upon various grounds. For the reasons below,
3 Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART.
4 II. Defendants’ Motion to Dismiss
5 A. Legal Standard for Rule 12(b)(6)
6 A complaint must contain only a “short and plain statement of the claim showing
7 that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), not “detailed factual
8 allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule
9 demands more than unadorned accusations; “sufficient factual matter” must make a claim
10 at least plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A party may thus move to
11 dismiss for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P.
12 12(b)(6). The motion may be granted only if the complaint lacks a “cognizable legal
13 theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v.
14 Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). In making this
15 context-specific evaluation, this court “must presume all factual allegations of the
16 complaint to be true and draw all reasonable inferences in favor of the nonmoving party.”
17 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply
18 to “‘a legal conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265,
19 286 (1986), nor to “allegations that contradict matters properly subject to judicial notice.”
20 Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001). In addition,
21 Rule 12(b)(6) does not immunize from scrutiny assertions that are “merely conclusory,
22 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State
23 Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275 F.3d
24 1187 (9th Cir. 2001).
25 B. Discussion
26 1. Failure to Implement or Train on Chronic Disease Protocol
27 Defendants move to dismiss what is described as a new theory of relief that is
28 contained in the first, second, fifth, sixth, seventh and eight causes of action, to wit, the
1 failure to implement or train on a “chronic disease pathway or protocol.” FAC ¶¶ 158,
2 231, 310, 334.
3 Plaintiff responds that the allegations prove that Defendants were aware of a
4 substantial risk of harm arising from the failure to implement the chronic disease protocol
5 because they were advised in January 2017 by the accrediting agency, the NCCHC, of the
6 critical need to treat seizure disorders in a manner different than that which was in place.
7 FAC ¶¶ 66, 79-85.
8 The Court finds that these allegations relate to notice provided by the NCCHC to
9 the County and its supervisors regarding the existence of deficiencies relating to the
10 handling of inmates who have seizure disorders as of January 2017. The Court has
11 previously found that the Plaintiff has sufficiently alleged a deliberate indifference to
12 serious medical needs and a failure to properly train County employees. The additional
13 allegations provide context and background regarding the alleged deliberate indifference
14 to serious medical needs, failure to accurately document medical health information, and
15 failure to properly train staff which undergird the § 1983 causes of action.
16 In view of the foregoing, the Court finds that the challenged allegations do not
17 specify a separate cause of action but rather, support an existing cause of action that has
18 previously survived a motion to dismiss. Defendants’ motion to dismiss or strike these
19 allegations is DENIED.
20 2. Failure to Properly Train Under § 1983 Against Individual Defendants
21 Defendants move to dismiss Plaintiff’s second cause of action – failure to properly
22 train under § 1983 against Defendants Sheriff William Gore, Barbara Lee, and Alfred
23 Joshua (“Individual Defendants”) – on the basis that Plaintiff has failed to allege
24 sufficient facts to show a pattern of prior wrongful actions to impose liability on the
25 Individual Defendants for failure to train as to cell checks and for placing vulnerable
26 inmates in top bunk beds. ECF No. 18-1 at 23-25. Plaintiff opposes. FAC ¶¶ 232, 234-
27 248.
28
1 “Supervisory liability is imposed against a supervisory official in his individual
2 capacity for his own culpable action or inaction in the training, supervision, or control of
3 his subordinates, for his acquiescence in the constitutional deprivations of which the
4 complaint is made, or for conduct that showed a reckless or callous indifference to the
5 rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)
6 (internal citations omitted). A supervisor may be liable if he is either (1) personally
7 involved in the constitutional deprivation; or (2) there is a sufficient causal connection
8 between the supervisor’s wrongful conduct and the constitutional violation. Hansen v.
9 Black, 885 F.2d 642, 646 (9th Cir. 1989). For supervisory officials, liability can exist
10 “even without overt personal participation in the offensive act if supervisory officials
11 implement a policy so deficient that the policy itself is a repudiation of constitutional
12 rights and is the moving force of the constitutional violation.” Redman v. County of San
13 Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991) (internal citations omitted). The
14 supervisor’s participation could include his “own culpable action or inaction in the
15 training, supervision, or control of his subordinates, his acquiescence in the constitutional
16 deprivations of which the complaint is made, or conduct that showed a reckless or callous
17 indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir.
18 2011) (internal quotations omitted). To impose this type of supervisory liability, Plaintiff
19 must satisfy two conditions: (1) plead detailed factual allegations that “give fair notice”
20 to the defendant to “enable the opposing party to defend itself effectively”; and (2) plead
21 a theory of liability through these detailed allegations that “must plausibly suggest an
22 entitlement to relief such that it is not unfair to require the opposing party to be subjected
23 to the expense of discovery and continued litigation.” Id. at 1216.
24 The Court previously found that the allegations regarding failure to train as to cell
25 checks and placement of vulnerable inmates in top bunk beds were insufficient. ECF No.
26 16 at 13-14. Plaintiff has addressed these deficiencies in the FAC. On one hand, the
27 FAC alleges in a conclusory fashion alleges that the Individual Defendants knew that the
28 patients suffering from seizure disorders would sustain death or injuries falling from the
1 top bunk, yet failed to train the jail staff on the necessity to house inmates with seizure
2 disorders on the bottom bunks. FAC ¶¶ 231, 232. Plaintiff observes, generally, that the
3 housing inmates with seizure disorders is a “recurring situation” and that the outcome of
4 an inmate with a seizure disorder falling from the top bunk is a “highly predictable
5 consequence.” Id. ¶ 233. Plaintiff points to medical journals that report the statistic that
6 the inmate population if 4.5 times more likely to suffer from seizure disorders. Id. ¶ 227.
7 However, the mere publication of an article regarding the statistics of the likelihood of
8 seizure disorder occurrence in the inmate population is insufficient to establish that
9 Individual Defendants had notice of the need for further training with respect to proper
10 bunk assignments.
11 On the other hand, Plaintiff offers significantly more substantial allegations to
12 support his position that Defendants Gore and Does knew that the jail staff members
13 failed to properly conduct cell checks. For one, the FAC reports that the NCCHC was
14 contacted by the San Diego Sheriff’s Department for assistance regarding compliance
15 with the NCCNC Standards for Health Services in Jails in November 2017. FAC ¶ 65.
16 Among other things, the NCCHC reported that the county jails lacked a standard on
17 chronic disease services to ensure that inmates who suffer from one of nine chronic
18 conditions, including seizure disorders, are identified and provided with needed care.
19 FAC ¶¶ 77-85. In addition, notice was allegedly provided through the deaths of at least
20 six individuals between 2011 and 2016 due to the failure to maintain proper protocols in
21 checking on the condition of inmates with serious medical or psychiatric conditions.
22 FAC ¶¶ 108(a)-(f). Finally, Defendants was made aware that the emergency call button
23 on the intercom system was not functioning properly after the death of an inmate in
24 February 2016. Id. ¶ 109.
25 In view of the foregoing, Plaintiff’s allegations regarding Defendants’ failure to
26 provide further training with respect to cell checks are sufficient to make out a claim “for
27 deliberate indifference based upon the supervisor's knowledge of and acquiescence in
28
1 unconstitutional conduct by his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207
2 (9th Cir. 2011). The motion to dismiss the second cause of action is DENIED.
3 3. Failure to Investigate Against Individual Defendants
4 Next, Defendants move to dismiss the fourth cause of action – i.e., Plaintiff’s
5 “Failure to Investigate” claims against Individual Defendants and the County of San
6 Diego – on the basis that the FAC does not cure the deficiencies noted in the Court’s
7 prior order. ECF No. 16 at 15.
8 Plaintiff re-alleges his claim that Individual Defendants failed to properly
9 investigate misconduct due to (1) their failure to investigate medical staff and (2) their
10 failure to investigate correctional staff. Defendants move to dismiss these claims since
11 Plaintiff has failed to allege that Defendants actually implemented an unconstitutional
12 policy or practice or that Defendants maintained a practice of reckless indifference. ECF
13 No. 18-1 at 20-21. Defendants also note that Plaintiff has failed to allege a causal link
14 between any failure to investigate and an alleged constitutional violation. The Court
15 previously dismissed this claim without prejudice on the basis that Plaintiff’s allegations
16 were insufficient to establish a failure to investigate employee misconduct since
17 Plaintiff’s allegations were conclusory and Plaintiff failed to show how Defendants’
18 alleged failure to investigate was tied to the Plaintiff’s injuries.
19 First, as to the failure to investigate medical staff, Plaintiff has added new
20 allegations based upon the NCCHC’s investigation that reports findings that the jail
21 lacked a formal review process to independently investigate medical providers’
22 misconduct; that the medical staff failed to keep track of inmate grievances; that medical
23 practitioners were not informed of the results of investigations into inmate deaths; and
24 that individual Defendants failed to investigate medical staff misconduct regarding
25 preventable deaths. FAC ¶¶ 273-281. Plaintiff alleges these failures to investigate led to
26 the death of Ruben Nunez, citing the “failure to coordinate care and communicate.” Id. ¶
27 277. Plaintiff argues that as a result of repeated failures to investigate medical staff, the
28
1 jail medical staff continued to engage in the type of unconstitutional conduct that harmed
2 both Plaintiff and other inmates. Id. ¶ 281.
3 The Court finds that these allegations continue to be too conclusory to withstand
4 the Defendants’ motion to dismiss. There is nothing that reveals the estimated number of
5 cases or grievances involved, what type of misconduct was involved and the nexus
6 between these cases and the Plaintiff’s case. Instead, Plaintiff makes broad references to
7 “inmate grievances” but does not clarify how they relate to Plaintiff’s injuries. Plaintiff
8 also refers to the jail staff’s failure to conduct posthumous investigations of inmates’
9 deaths but similarly does not tie this to an alleged constitutional violation.
10 Next, as to a failure to investigate correctional staff, Plaintiff summarily alleges
11 that a “systemic” culture existed in the jail wherein deputies either turned off or turned
12 low the volume of the emergency sound call system, which resulted in a 2016 incident of
13 a cellmate’s emergency call going unheard. FAC ¶¶ 290-292. Greer also alleges that
14 CLERB summarily dismissed 22 investigations involving people who died in the Jails
15 due to failing to complete the investigations within 12 months. Plaintiff claims that the
16 failure to properly fund CLERB has prevented timely investigations in order to discipline
17 culpable jail staff which has created a culture in which the staff violates the constitutional
18 rights of inmates. FAC ¶ 284. Again, the Court finds that these allegations are
19 conclusory and do not identify specific cases that gave notice of deficiencies in the
20 conducting of investigations which then caused the Plaintiff’s injuries. Thus, it appearing
21 that further amendment will not cure the deficiencies with this claim, the motion to
22 dismiss the fourth cause of action against the Individual Defendants is GRANTED and
23 Plaintiff’s claim is dismissed with prejudice.1
24 / / /
25 / / /
26
27
1 The motion to dismiss is GRANTED without leave to amend given that Plaintiff has not shown that a
28
1 4. Failure to Investigate and Train by the Municipal Defendant under Monell
2 Defendants also move to dismiss Plaintiff’s fifth cause of action, the § 1983 claim
3 against the County of San Diego, alleging the failure to investigate and discipline
4 deputies and medical staff. ECF No. 18-1 at 19-22. Plaintiff counters that he has
5 sufficiently alleged claims regarding the pattern of failing to investigate staff misconduct,
6 which created a “culture of lawlessness.” ECF No. 22 at 19.
7 A municipality may be sued directly under Section 1983 only where the alleged
8 unconstitutional conduct “reflects a ‘deliberate’ or ‘conscious’ choice by the municipality
9 can the failure be properly thought of as an actionable city ‘policy.’ ” See Canton v.
10 Harris, 489 U.S. 378, 389-391 (1989). The Monell standard requires that the policy or
11 custom must be the “moving force” behind the constitutional violation. Id. As to the
12 alleged failures to investigate, the allegations fail to show a pervasive practice or a policy
13 which was the moving force behind a constitutional violation. As such, the Court
14 GRANTS the motion to dismiss solely as to this theory of liability.
15 With respect to the alleged failure to train, “the focus must be on . . . whether such
16 inadequate training can justifiably be said to represent ‘city policy.’ ” Canton at 379.
17 The respondent must also prove “that the deficiency in training actually caused the police
18 officers’ indifference to her medical needs.” Id. Plaintiff does not allege that the County
19 of San Diego had an official policy, but had a “de facto policy” which “gives inference of
20 a municipal custom that authorized or condoned deputy misconduct. FAC ¶¶ 300, 304.
21 Plaintiff alleges that “there was a custom and practice” of, inter alia, failing to establish
22 required chronic disease protocol for seizure disorders; failing to communicate medical
23 needs of inmates between medical staff and deputies; and failing to check on welfare of
24 inmates with serious medical needs. FAC ¶¶ 304-313. Plaintiff’s allegations regarding
25 this deficiency in training are therefore substantial enough to survive a motion to dismiss,
26 and the Court accordingly DENIES the motion to dismiss as to this theory of liability.
27 Further, the motion to dismiss is DENIED as to the other theories that were previously
28 upheld in the prior court order. ECF No. 16 at 20-22.
1 5. Common Law Negligence
2 Defendants also move to dismiss the sixth cause of action for negligence for
3 conduct beyond the failure to promptly summon medical care. ECF No. 16 at 14-18.
4 Defendants argue that, with the exception of a delaying medical care, the County is
5 immune from liability under California Government Code § 844.6(a)(2) for all other
6 negligence claims. Id. Plaintiff argues that Defendants’ immunity argument lacks merit
7 because the negligence claim is wholly based on delaying medical care, which is
8 expressly excluded from the Government Code immunities. ECF No. 22 at 28-29.
9 In its prior order, the Court denied the motion to dismiss as it related to the failure
10 to summon medical care. ECF No.16 at 20-21. However, in its order, the Court did
11 observe that the County may not be liable for negligence as to every event or failure to
12 act leading up to Plaintiff’s seizure and fall from his bed. Id. at 21. In his FAC, Plaintiff
13 has alleged acts that Defendants assert go beyond the failure to promptly summon
14 medical care and that are entitled to immunity under Government Code § 844.6(a)(2).
15 a. County’s Claim of Immunity Under Government Code § 845.6
16 Defendants argue that Plaintiff has improperly alleged a negligence claim against
17 the Defendants since their actions are beyond the narrow exception permitted by
18 California Government Code § 845.6. Under California Government Code § 845.6, a
19 public entity or public employee is generally not “liable for injury proximately caused by
20 the failure of the employee to furnish or obtain medical care for a prisoner in his [or her]
21 custody.” Cal. Gov’t Code § 845.6. However, a public entity or public employee is
22 liable for an injury proximately caused to a prisoner where: (1) “the employee is acting
23 within the scope of his [or her] employment,” (2) “the employee knows or has reason to
24 know that the prisoner is in need of immediate medical care,” and (3) “he [or she] fails to
25 take reasonable action to summon such medical care.” Id.
26 California courts have construed the provision to create limited liability only
27 “when: (1) the public employee knows or has reason to know [of the] need, (2) of
28 immediate medical care, and (3) fails to take reasonable action to summon such medical
1 care.” Scalia v. County of Kern, 308 F.Supp.3d 1064 (E.D. Cal. 2018) (citing Castaneda
2 v. Dep't of Corr. & Rehab., 212 Cal. App. 4th 1051, 1070 (2013)) (internal quotation
3 marks omitted). This section is “very narrowly written to authorize a cause of action
4 against a public entity for its employees' failure to summon immediate medical care only,
5 not for certain employee's malpractice in providing that care.” Id.
6 Defendants argue that Plaintiff’s allegations “leading up to Plaintiff’s fall from his
7 bunk” are beyond the scope of claims authorized by section 845.6 since (1) immunity
8 extends to allegations of medical negligence by employees; and (2) no public employee
9 would have reason to know that Plaintiff suffered from a serious and obvious medical
10 condition prior to his fall. ECF No. 18-1 at 15. Defendants also argue that any allegation
11 for failure to train and set forth policies regarding inmate care must fail since there is no
12 statutory basis for such a claim.
13 Plaintiff argues that the Defendants’ immunity argument lacks merit because his
14 entire negligence claim is based on delaying medical care, which is expressly excluded
15 from the Government Code immunities. ECF No. 22 at 28-29. The parties do not appear
16 to dispute that his claim regarding a delay in summoning staff for medical care following
17 his fall is not subject to any immunity. They dispute what qualifies as delaying medical
18 care. In the FAC, Plaintiff alleges that immediate medical care was needed when he
19 notified staff at the time of his booking that he had a seizure disorder and required
20 immediate medical care vis a vis his anti-seizure medication and bottom bunk
21 designation. ECF No. 22 at 28. Once an inmate is receiving medical care, Government
22 Code § 845.6 does not create a duty to provide adequate or appropriate care. Watson v.
23 California, 21 Cal. App. 4th 836, 841–843 (1993). Under California law, the failure of a
24 practitioner to prescribe or provide necessary medication or treatment to one he or she
25 has been summoned to assist constitutes medical malpractice and clearly, as a matter of
26 the plain meaning of the statutory language, cannot be characterized as a failure to
27 summon medical care. Nelson v. State of California, 139 Cal. App. 3d 72, 81 (Ct. App.
28 1982). The Court finds that the failure to provide Plaintiff seizure medication and bottom
1 bunk placement do not support his claim that he was denied immediate medical care.
2 The motion to dismiss is GRANTED as to these two theories and otherwise DENIED as
3 to the failure to provide prompt medical care after Plaintiff’s fall.
4 Prison officials may also be liable for negligent supervision and training as to the
5 prompt summoning of medical care. See Bock v. Cnty. of Sutter, 2012 WL 3778953, at *
6 18–19 (E.D. Cal. Aug. 31, 2012) (denying motion to dismiss claims for negligent
7 supervision and wrongful death that were based upon jail personnel's failure to furnish
8 medical care); Resendiz v. Cty. of Monterey, 2015 WL 3988495, at *8 (N.D. Cal. June 30,
9 2015) (“[T]he Court concludes that Plaintiffs may state claims for negligent supervision
10 and wrongful death pursuant to Cal. Gov't Code § 845.6.”).
11 Here, taking Plaintiff’s allegations as true, the FAC alleges sufficient facts to infer
12 that the County employees failed to take reasonable action to summon the necessary
13 medical care for Plaintiff. See Estate of Victorianne v. Cty. of San Diego, 2016 WL
14 411292, at *14 (S.D. Cal. Feb. 3, 2016) (the exception to immunity applied because
15 employees knew or had reason to know that plaintiff was in need of immediate medical
16 care). To the extent that there was such a failure to provide immediate attention, the
17 County will be liable if it is shown that the failure to respond promptly was due to the
18 County’s negligent supervision and training.
19 b. Liability of Individual Defendants
20 The Court previously dismissed without prejudice the negligence claim against
21 Individual Defendants since Plaintiff failed to respond to the Defendants’ argument that
22 the only identified duty of care was based upon the ADA and Rehabilitation Act, which
23 only place a duty on municipalities. ECF No. 16 at 19. Defendants now move to dismiss
24 this amended claim on the basis that Plaintiff’s allegations were made out against the jail
25 staff and not against the Individual Defendants, and Plaintiff cannot hold Individual
26 Defendants liable solely based on their supervisory roles. Defendants note that Plaintiff
27 must allege a “special relationship” in order to bring claims based on negligent
28 supervision of training of employees.
1 Unless there is a duty between the defendant and plaintiff, or, in the alternative,
2 between the defendant and the individuals who injured the plaintiff, a claim for negligent
3 misconduct against a third party will fail. See e.g., Willis v. Cty. of Sacramento, 2014 WL
4 1027070, at *6 (E.D. Cal. Mar. 14, 2014) (“Absent such a special relationship, there can
5 be no individual liability to third parties for negligent hiring, retention or supervision of a
6 fellow employee, and hence no vicarious liability.”). Here, Plaintiff broadly states that
7 the “negligence claim is based on [the Individual Defendants’] conduct in failing to set
8 forth policies and failing to train their staff including the failure to train their subordinates
9 on the need to summon immediate medical care.” ECF No. 22 at 29. However,
10 Plaintiff’s cited cases are inapposite. In Estate of Claypole v. Cty. of San Mateo, No. 14-
11 CV-02730-BLF, 2014 WL 5100696, at *8 (N.D. Cal. Oct. 9, 2014), the court found that a
12 negligence claim against the public entity – not, individual defendants – was permitted.
13 In Bock v. Cty. of Sutter, 2012 WL 3778953, at *16 (E.D. Cal. Aug. 31, 2012), the
14 plaintiffs alleged the Defendant County of Sutter, not an individual defendant, was
15 negligent in hiring, supervising, training, and retaining employees. And finally, in Estate
16 of Victorianne v. Cty. of San Diego, 2016 WL 411292, at *19 (S.D. Cal. Feb. 3, 2016),
17 the court permitted plaintiffs to bring a negligence and wrongful death claim
18 under California Code of Civil Procedure § 377.60, but specifically denied negligence
19 claims for negligent hiring, training, and supervision – the negligence claim that is
20 brought here. Id. at *13.
21 In sum, Plaintiff has failed to substantiate negligence claims against Individual
22 Defendants and the motion to dismiss as to these claims is GRANTED WITH
23 PREJUDICE.
24 6. Merits of the ADA and Rehabilitation Act Claims
25 Finally, Defendants move to dismiss the seventh and eighth causes of action under
26 the ADA and Rehabilitation based on the argument that Plaintiff’s claims are premised
27 on inadequate medical care, rather than the denial of benefits or services by reason of his
28 disability with discriminatory animus. ECF 18-1 at 11-13.
1 Title II of the ADA mandates that “no qualified individual with a disability shall,
2 by reason of such disability, be excluded from participation in or be denied the benefits of
3 the services, programs, or activities of a public entity, or be subjected to discrimination
4 by any such entity.” 42 U.S.C. § 12132. To establish a prima facie claim, the Ninth
5 Circuit has found:
6 [P]laintiff must allege: (1) he is an individual with a disability; (2) he is otherwise
qualified to participate in or receive the benefit of some public entity’s services,
7
programs, or activities; (3) he was either excluded from participation in or denied
8 the benefits of the public entity’s services, programs, or activities or was otherwise
discriminated against by the public entity’s services; (4) such exclusion, denial of
9
benefits, or discrimination was by reason of disability.
10
Simmons v. Navajo City, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010). There is no
11
significant difference in analysis of the rights and obligations afforded under the ADA
12
and the Rehabilitation Act. Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045
13
n. 11 (9th Cir. 1999).
14
As to the first factor, Defendants did not challenge, in their moving papers,
15
Plaintiff’s status as a disabled person under the ADA and Rehabilitation Act. However,
16
in their reply, Defendants resurrect an argument that was included in the original motion
17
to dismiss. Given that this argument was only raised in a reply, the Court would
18
normally disregard the argument. However, in his FAC, Greer has alleged that he is a
19
disabled person whose major life activity is substantially limited due to his seizure
20
disorder and that he has previously fallen off a bed while suffering a seizure. FAC ¶ 345.
21
At this stage, the Court finds that Plaintiff is a qualified individual based upon his
22
claimed disability.
23
Next, Defendants allege that Mr. Greer has failed to plead facts to satisfy the third
24
element of the ADA – that Plaintiff was either excluded from participation in, or denied
25
the benefits of, the Central Jail’s services, programs, or activities, or otherwise
26
discriminated against by the Central Jail. Without such allegations of discrimination,
27
Defendants argue Plaintiff’s claim fails. The Court finds that Plaintiff has plausibly
28
1 alleged that he was denied benefits afforded inmates, a bed which would permit safe,
2 uninterrupted and restful sleep. Cf. Kiman v. New Hampshire Dep't of Corr., 451 F.3d
3 274, 290 (1st Cir. 2006) (inmate presented evidence establishing factual disputes on
4 whether defendants denied him access to lower tier and bottom bunk placement, in
5 violation of Title II).
6 As to the fourth factor, Defendants assert Plaintiff’s complaint fails to adequately
7 allege that Plaintiff was denied the benefit of government services “by reason of his
8 disability.” ECF No. 18-1 at 11-12. Further, Defendants argue that Plaintiff’s claims are
9 premised on inadequate medical care. In order to satisfy this factor, a plaintiff must show
10 that he was denied the opportunity to participate in or benefit from the State Defendants'
11 services, programs, or activities, or was otherwise discriminated against by Defendants,
12 as a result of his disability. See 42 U.S.C. § 12132 (emphasis added). “A qualified
13 individual can base a discrimination claim on any of three available theories: (1)
14 intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to
15 make a reasonable accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009).
16 To demonstrate that individuals were deprived of an opportunity or benefit or
17 discriminated against “by reason of their disabilities,” Plaintiffs must demonstrate that
18 “Defendants failed to undertake some feasible measure to improve accessibility.” United
19 Spinal Ass'n v. Bd. of Elections in City of New York, 882 F. Supp. 2d 615, 626 (S.D.N.Y.
20 2012), aff'd sub nom. Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d
21 189 (2nd Cir. 2014)
22 Greer claims he was denied reasonable accommodations and seeks relief under the
23 federal regulations implementing Title II of the ADA, which require public entities to
24 “make reasonable modifications in policies, practices, or procedures when the
25 modifications are necessary to avoid discrimination on the basis of disability, unless the
26 public entity can demonstrate that making the modifications would fundamentally alter
27 the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Because the
28 regulation requires modifications that are “necessary to avoid discrimination on the basis
1 of disability,” liability does not depend on evidence of purposeful discrimination.
2 Patterson v. Kerr Cty., No. SA-05-CA-0626-RF, 2007 WL 2086671, at *7 (W.D. Tex.
3 July 18, 2007). Plaintiff’s ADA and Rehabilitation Act claims are based on a jail staff’s
4 failure to make reasonable accommodations. Consequently, Plaintiff need not allege
5 either disparate treatment or disparate impact in order to state a reasonable
6 accommodation claim. See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 261, 276–77 (2d
7 Cir.2003) (“[A] claim of discrimination based on a failure reasonably to accommodate is
8 distinct from a claim of discrimination based on disparate impact.
9 Here, Plaintiff alleges that he was denied a reasonable accommodation when the
10 County (1) failed to supply safe housing in the form of a bottom bunk, (2) failed to
11 provide him seizure medication, and (3) failed to conduct a chronic disease protocol. The
12 Court will address these claims in turn.
13 Failure to Provide Bottom Bunk Bed
14 Greer specifically alleges that he requested a reasonable accommodation in the
15 form of a bottom bunk bed. FAC ¶ 353. Under the ADA, the jail staff was placed on
16 notice of the need for a reasonable accommodation. See Kiman v. New Hampshire Dep't
17 of Corr., 451 F.3d at 289 (failure to accommodate inmate who requested bottom bunk
18 was sufficient to provide notice of medical condition and need for accommodation). As to
19 the bunk bed, Greer alleges that the jail staff took no steps to determine if a bottom bunk
20 bed could be made available. FAC ¶ 353. In this way, it is alleged the jail failed to
21 provide a reasonable accommodation that did not impose an undue hardship on the jail
22 and was required due to his disability. 45 C.F.R. § 84.12(a) (“A reasonable
23 accommodation is one that does not ‘impose an undue hardship on the operation of [a]
24 program or activity.’ ”)
25 Defendants also argue that Plaintiff has failed to allege intentional discrimination.
26 To recover monetary damages under Title II of the ADA or the Rehabilitation Act, a
27 plaintiff must prove intentional discrimination on the part of the defendant. Ferguson v.
28 City of Phoenix, 157 F.3d 668, 674 (9th Cir.1998). The Ninth Circuit has held that the
1 deliberate indifference standard applies to the requisite showing of intentional
2 discrimination. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001). The Court
3 finds that Plaintiff has adequately alleged deliberate indifference to support an ADA
4 claim based upon Plaintiff’s request for a bottom bunk bed that was refused without any
5 attempt to accommodate his request for an accommodation. See Duvall, 260 F.3d at
6 1138–39; see also Brown v. Woodford, 2007 WL 735768, at *2 (N.D.Cal.2007) (inmate
7 sufficiently alleged deliberate indifference under the ADA when prison officials refused
8 to provide orthopedic shoes for his club feet).
9 In view of the foregoing, the Court finds that, as to his request for bottom bunk
10 bed, Plaintiff has presented a plausible claim under the ADA and Rehabilitation Act and
11 Defendant’s motion to dismiss is DENIED as to this claim.
12 Failure to Provide Seizure Medication
13 As to the failure to provide him seizure medication, Plaintiff alleges that he
14 notified the intake nurse that he suffered from a seizure disorder and yet was denied
15 medical services. FAC ¶ 353. Among other things, he alleges that the jail staff failed to
16 communicate or document his condition. Medical care is one of the “services, programs,
17 or activities” covered by the ADA. See United States v. Georgia, 546 U.S. 151, 157
18 (2006) (stating that the “deliberate refusal of prison officials to accommodate [the
19 plaintiff's] disability-related needs in such fundamentals as ... medical care ... constituted
20 ‘exclu[sion] from participation in or ... den[ial of] the benefits of’ the prison's ‘services,
21 programs, or activities' ” (quoting 42 U.S.C. § 12132)). However, negligent medical
22 claims are distinguished from ADA claims. See Fitzgerald v. Corr. Corp. of Am., 403
23 F.3d 1134, 1144 (10th Cir.2005) (“[P]urely medical decisions ... do not ordinarily fall
24 within the scope of the ADA or the Rehabilitation Act.”); Bryant v. Madigan, 84 F.3d
25 246, 249 (7th Cir.1996) (“The ADA does not create a remedy for medical malpractice.”).
26 These allegations relate to the denial of medical care and are based upon negligence and
27 are not properly brought under the ADA as a failure to provide reasonable
28
1 accommodation. Accordingly, the motion to dismiss as to this alternative theory is
2 GRANTED.
3 Failure to Employ Safeguards, Conduct Protocols and Self-Evaluate
4 In addition, Plaintiff asserts that he was entitled to accommodations that “include
5 training on specialized training of jail staff, heightened level of medical care, and diligent
6 surveillance.” FAC ¶ 350. Relatedly, Plaintiff claims that he was denied a chronic
7 disease control protocol. FAC ¶ 354. Plaintiff did not make a request of the jail staff for
8 these safeguards or protocol. The ADA's reasonable accommodation requirement usually
9 does not apply unless “triggered by a request” from the employee. Reed v. LePage
10 Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001); see also Henry Perrett, Jr., 1 Americans
11 With Disabilities Act Handbook, § 4.17, at 121 (3d ed.1997) (collecting cases). The
12 request must be “sufficiently direct and specific,” giving notice that she needs a “special
13 accommodation.” Wynne v. Tufts Univ., 976 F.2d 791, 795 (1st Cir.1992) (quoting
14 Nathanson v. Medical Coll. of Pa., 926 F.2d 1368, 1381 (3d Cir.1991)); Walker v. City of
15 New York, 367 F. Supp. 3d 39, 55 (S.D.N.Y. 2019) (“to be denied a reasonable
16 accommodation, an individual must first request that accommodation.”).
17 This claim is deficient not only because Plaintiff failed to request such safeguards
18 but, further, the actions complained of reveal an individualized breakdown in responding
19 to Plaintiff’s medical condition rather than the failure to provide a reasonable
20 accommodation. As recognized above, however, the ADA cannot be used to bring a
21 claim for medical negligence. See Bryan v. MadiGal, 84 F.3 246, 249 (7th Cir. 1996).
22 Finally, Plaintiff alleges a claim based upon the failure to self-evaluate under
23 regulations promulgated by the Department of Justice to implement Part A of Title II of
24 the ADA. FAC ¶¶ 357-359. Plaintiff did not make a request for self-evaluation.
25 Moreover, Plaintiff has not pointed to any authority which creates a cause of action based
26 upon the existence of an administrative regulation and the Court has not found any case
27 that supports this position.
28
1 In view of the foregoing, the Court GRANTS this portion of Defendant’s motion
2 || to dismiss Plaintiff's ADA and RA claims in the FAC.
3 I. Conclusion
4 For the reasons enumerated above in this order, Defendants’ motion to dismiss 1s:
5 e DENIED with respect to the second cause of action for brought under 42
6 U.S.C. § 1983 (Failure to Properly Train Against Individual Defendants);
7 e¢ GRANTED with respect to the fourth cause of action brought under 42
8 U.S.C. § 1983 for failure to investigate against the Individual Defendants;
9 e DENIED IN PART and GRANTED IN PART as to the fifth cause of
10 action brought under 42 U.S.C. § 1983 against the County of San Diego as
11 to the failure to investigate theory ONLY;
12 e DENIED IN PART and GRANTED IN PART with respect to the sixth
13 cause of action for common law negligence against the County of San Diego
14 and GRANTED WITH PREJUDICE with respect to the Individual
15 Defendants;
16 e DENIED IN PART and GRANTED IN PART WITH PREJUDICE with
17 respect to the seventh cause of action for an ADA claim brought under 42
18 U.S.C. § 12101 et seq.;
19 e DENIED IN PART and GRANTED IN PART WITH PREJUDICE with
20 respect to the seventh cause of action for a Rehabilitation Act claim brought
1 under 29 U.S.C. § 794(a).
22
23 IT IS SO ORDERED.
24 Dated: April 14, 2020 7
Hon. athe Cae
26 United States District Judge
27
28