The Estate of Elisa Serna v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 THE ESTATE OF ELISA SERNA by Case No.: 20-cv-2096-LAB-DDL

and through its administrator

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DOUGLAS GILLILAND, et al, ORDER GRANTING IN PART

13 MOTIONS TO DISMISS

Plaintiffs,

SECOND AMENDED

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v. COMPLAINT [Dkt. 50, 52]

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COUNTY OF SAN DIEGO, et al,

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Defendants.

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18 Elisa Serna died on November 11, 2019, while in the custody of the County

19 of San Diego at the Las Colinas Detention Facility. She had been in custody for

20 five days. Plaintiffs allege she was denied medical care for withdrawal symptoms

21 and dehydration. They brought this action claiming that the County of San Diego

22 is liable for her death. The Plaintiffs are: Serna’s estate (the “Estate”); her

23 widower, Brandon Honeycutt; her minor child, S.H., through her guardian ad litem,

24 Paloma Serna; and her parents, Michael and Paloma Serna. Their Second

25 Amended Complaint (“SAC”) asserts eight claims against eleven named

26 defendants and twenty-eight unnamed “Doe” defendants.

27 Defendants County of San Diego, William Gore, Barbara Lee, Lorna Roque,

28 Hazel Camama, and Lucas Lovisa (identified as “Lacee Lovisa” in the SAC)

1 (collectively, “County Defendants”) have moved to dismiss portions of Plaintiffs’

2 SAC. (Dkt. 50). Defendants Danalee Pascua and Reishone Foster independently

3 join portions of County Defendants’ motion. (Dkt. 51, 53). Foster also separately

4 moves to dismiss all claims brought against her. (Dkt. 52). Defendants Coast

5 Correctional Medical Group, Friederike Von Lintig, M.D., and Mark O’Brien, O.D.

6 (collectively, “CCMG Defendants”) join portions of both motions. (Dkt. 62).

7 Having considered the parties’ submissions and the relevant law, the

8 motions are GRANTED IN PART and DENIED IN PART. The Court DISMISSES

9 the following claims:

10 1) The SAC’s first through eighth claims as against all Doe Defendants,

11 WITHOUT PREDUDICE;

12 2) The SAC’s first, second, and sixth through eighth claims as against

13 Lovisa and Foster, WITH PREJUDICE; and

14 3) The SAC’s second claim, insofar as it is brought by Honeycutt, WITH

15 PREJUDICE, and insofar as it is brought under the First or Fifth

16 Amendment, WITH PREJUDICE.

17 I. BACKGROUND

18 The relevant factual allegations and the reasonable inferences that can be

19 drawn in Plaintiffs’ favor are as follows. Las Colinas Detention Facility is a

20 detention center owned and operated by the County of San Diego for female

21 inmates in the County’s custody.1 (Dkt. 34, SAC ¶ 17). The County’s custodial

22 employees and staff work under the supervision of Sheriff William Gore, and its

23 medical and nursing staff work under Medical Administrator Barbara Lee. (Id.

24 ¶¶ 11–13, 16–17). Prior to the events giving rise to this action, multiple local

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26 1 The SAC doesn’t allege this fact, alleging instead that the County owns and

27 operates Las Colinas Jail. (SAC ¶ 17). For the purposes of this Order only, the

Court takes judicial notice that the County houses female inmates at Las Colinas

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1 newspapers published stories detailing the number of inmate deaths in the

2 County’s jails, which Gore responded to in an op-ed published in September 2019.

3 (Id. ¶¶ 114–21). In 2016, the County received a grand jury report noting that jail

4 staff didn’t know how to record inmates’ medical conditions in the County’s

5 information management software, (id. ¶¶ 131–33), and the Sheriff’s Department

6 commissioned an audit of its compliance with the National Commission on

7 Correctional Healthcare (“NCCHC”) Standards for Health Services in Jails, (id.

8 ¶ 136). The NCCHC report noted that Las Colinas failed to meet twenty-eight

9 “essential standards” necessary for NCCHC accreditation. (Id. ¶ 140).

10 Elisa Serna was admitted to the County’s custody on November 6, 2019.

11 (Id. ¶ 22). When she was booked, she reported she was addicted to heroin and

12 alcohol and that she had used heroin, alcohol, and Xanax two hours earlier. (Id.

13 ¶¶ 23, 25). She was also pregnant, suffering from acute pneumonia, and

14 exhibiting signs of withdrawal and dehydration, including nausea, vomiting, and

15 dry skin. (Id. ¶¶ 24–25, 30–31, 45). She wasn’t seen by a doctor or treated for

16 withdrawal until her fourth day in Las Colinas. (Id. ¶¶ 38–39).

17 Between 1:15 a.m. and 7:00 p.m. on November 11, 2019, nurses Hazel

18 Camama and Lorna Roque and Dr. Friederike Von Lintig observed Serna’s

19 condition decline without providing medical care.2 (Id. ¶¶ 41–74). At some point

20 during the interval, Deputy Reishone Foster dragged Serna to her cell by her

21 wrists while Serna was nearly unconscious. (Id. ¶ 77). Foster didn’t summon

22 medical care. (Id.) At approximately 7:00 p.m., nurse Danalee Pascua and Deputy

23 Lucas Lovisa went to Serna’s cell and observed as she had a seizure, struck her

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2 The Court declines to recite the specific allegations against Camama, Roque,

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and Dr. Von Lintig because none of those defendants move to dismiss the claims

27 against them for inadequate pleading. A detailed account of the allegations

against those defendants can be found in the Court’s Order partially dismissing

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1 head, and fell, unconscious, onto the floor of her cell. (Id. ¶ 78). They closed the

2 door to Serna’s cell without providing medical care. (Id. ¶ 80). Serna was found

3 dead in her cell more than an hour later. (Id. ¶¶ 80–82).

4 Plaintiffs initiated this suit on October 26, 2020. (Dkt. 1). Serna’s widower,

5 Brandon Honeycutt, and her minor child, S.H., filed suit on behalf of the Estate as

6 Serna’s successors-in-interest. On November 11, 2021, a probate court issued

7 Letters of Administration appointing Douglas Gilliland as administrator and

8 personal representative of the Estate. (Dkt. 28-3). Plaintiffs filed the SAC on

9 April 1, 2022, (see SAC), and moved to substitute Gilliland as administrator of the

10 Estate on July 7, 2022, (Dkt. 57). The Court granted that unopposed motion.

11 (Dkt. 68). Due to pending criminal charges against Pascua and Dr. Von Lintig, the

12 Court stayed civil discovery from those defendants. (Dkt. 46, 78).

13 II. LEGAL STANDARD

14 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint.

15 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to

16 dismiss, a complaint must contain sufficient factual matter, accepted as true, to

17 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

18 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim

19 is plausible if the factual allegations supporting it permit “the court to draw the

20 reasonable inference that the defendant is liable for the misconduct alleged.” Id.

21 The factual allegations need not be detailed; instead, the plaintiff must plead

22 sufficient facts that, if true, “raise a right to relief above the speculative level.”

23 Twombly, 550 U.S. at 545. The plausibility standard is not a “‘probability

24 requirement,’ but it asks for more than a sheer possibility that a defendant has

25 acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

26 Courts aren’t required to accept legal conclusions couched as factual allegations

27 and “formulaic recitation[s] of the elements of a cause of action” aren’t sufficient.

28 Twombly, 550 U.S. at 555. Ultimately, a court must determine whether the

1 plaintiff’s alleged facts, if proven, permit the court to grant the requested relief.

2 See Iqbal, 556 U.S. at 666; Fed. R. Civ. P. 8(a)(2).

3 III. DISCUSSION

4 A. Standing

5 County Defendants and Foster move to dismiss all claims brought by the

6 Estate because Honeycutt and S.H. lack standing to sue on the Estate’s behalf.

7 (Dkt. 50-1 at 3–4, 52-1 at 3–5). Pascua and CCMG Defendants join this argument.

8 (Dkt. 51, 54). As Serna’s successors-in-interest, Honeycutt and S.H. originally had

9 standing to sue on the Estate’s behalf under Cal. Civ. Pro. Code § 377.30. A state

10 probate court has since appointed Douglas Gilliland as the administrator and

11 personal representative of the Estate. (Dkt. 28 at 2). Under California law, as the

12 Estate’s personal representative, Gilliland alone has standing to prosecute claims

13 on the Estate’s behalf. Cal. Civ. Pro. Code. § 377.30.

14 On October 10, 2022, the Court granted Plaintiffs’ unopposed motion and

15 substituted Gilliland as representative of the Estate in place of Honeycutt and S.H.

16 (Dkt. 68). County Defendants concede that Gilliland’s substitution cures the

17 standing deficiency. (Dkt. 62 at 2). The Court finds that Gilliland, as the Estate’s

18 personal representative, has standing to bring claims on the Estate’s behalf. See

19 § 377.30. County Defendants and Foster’s motions to dismiss the Estate’s claims

20 for lack of standing are therefore DENIED AS MOOT.

21 B. Sufficiency of Pleading Against Doe Defendants

22 County Defendants next contend that both the state law and federal claims

23 against Doe Defendants 3–30 must be dismissed for failure to allege facts specific

24 to any of those defendants in the SAC. (Dkt. 50-1 at 5–7). The Court addressed a

25 similar argument when ruling on County Defendants’ motion to dismiss the FAC:

26 Next, Movants argue that [all] claims against the 100

Doe Defendants must be dismissed for lack of allegations

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specific to any of those Defendants. “A plaintiff may refer

28 to unknown defendants as [a Doe].” Keavney v. Cty. of San

1 Diego, Case No. 3:19-cv-019472020 WL 4192286, at *4–5

(S.D. Cal. July 21, 2020). Federal courts have dismissed

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claims against such defendants, though, when the

3 pleading doesn’t “even minimally explain how any of the

unidentified parties he seeks to sue personally caused a

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violation of his constitutional rights.” See, e.g., Cavanaugh

5 v. County of San Diego, Case No. 3:18-cv-02557-BEN-LL,

2020 WL 9703592 at *25, n.20 (S.D. Cal. Nov. 12, 2020).

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7 But where state claims are involved, California’s

fictitious name statute permitting the pleading of Doe

8 defendants tolls the statute of limitations on those claims,

9 and so it is substantive law that the Court is bound to apply.

Lindley v. General Elec. Co., 780 F.2d 797, 802 (9th Cir.

10 1986). Under that statute, a plaintiff may name Doe

11 defendants when he doesn’t know the true name of a

defendant or the facts giving him a cause of action against

12 a defendant. Munoz v. Purdy, 91 Cal. App. 3d 942, 947

13 (1979).

14 (Dkt. 32 at 6–7). In its earlier Order, the Court found the “cursory and conclusory

15 allegations” against the 100 Doe Defendants insufficient for the federal claims, but

16 sufficient for the state claims, and dismissed those defendants from the federal

17 claims only. (Id. at 7). County Defendants renew their earlier argument and ask

18 the Court to reconsider its application of California’s pleading standard to the state

19 law claims.

20 The Court has carefully reviewed the law and the parties’ arguments and

21 has reconsidered its prior decision regarding the correct pleading standard. On

22 reconsideration, the Court now concludes that the federal pleading standard, as

23 set forth in the Federal Rules of Civil Procedure, applies as to both the federal and

24 state claims. Miller v. Sawant, 18 F.4th 328, 337 (9th Cir. 2021) (“Pleading in

25 federal court is governed by Federal Rules of Civil Procedure, not state pleading

26 requirements.”). Under this standard, Plaintiffs may refer to unknown defendants

27 as “Does,” “but [they] must allege specific facts showing how each particular doe

28 defendant violated [their] rights.” Keavney v. Cnty. of San Diego, No. 3:19-cv-

1 01947-AJB-BGS, 2020 WL 4192286, at *4 (S.D. Cal. July 21, 2020) (internal

2 citation omitted); see also Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988)

3 (holding a plaintiff must “set forth specific facts” as to each individual defendant’s

4 wrongdoing).

5 Applying the federal pleading standard to the SAC, it’s evident the claims

6 against Doe Defendants 3–30 aren’t sufficiently pled. Like the FAC, the SAC

7 makes only cursory and conclusory allegations against the Doe Defendants. (See

8 SAC ¶¶ 192, 203–04, 221, 228, 233, 242, 247–49, 256, 293, 297 (federal claims);

9 id. ¶¶ 305–07, 316–22, 326, 334 (state claims)). The SAC admits that “Plaintiffs

10 are truly ignorant . . . of the facts giving rise to [Doe Defendants’] liability.” (Id.

11 ¶ 18). Threadbare allegations like these are insufficient to support either the

12 federal or state law claims. County Defendants’ motion is GRANTED IN PART as

13 to the claims against Doe Defendants 3–30, and those claims are DISMISSED

14 WITHOUT PREJUDICE. The motion is DENIED IN PART to the extent it requests

15 that the claims be dismissed in their entirety as to the rest of the named

16 Defendants.

17 C. Substitution of Lovisa and Foster

18 County Defendants move to dismiss all claims brought against Lovisa

19 because he can’t properly be substituted or added as a new defendant at this

20 stage in the case. (Dkt. 50-1 at 9–12). Foster joins this argument. (Dkt. 53).

21 Generally, California’s fictitious name statute permits a plaintiff to use a fictitious

22 name to identify an unknown defendant and to amend the complaint once the

23 defendant’s identity is ascertained. Butler v. Nat’l Cmty. Renaissance of Cal., 766

24 F.3d 1191, 1200–01 (9th Cir. 2014); see also Cal. Civ. Pro. Code § 474. Any such

25 amendment relates back to the date of the original pleading. See Hawkins v. Pac.

26 Coast Bldg. Prods., Inc., 22 Cal. Rptr. 3d 453, 457 (Ct. App. 2004). However, any

27 substitution of a “Doe” that adds a new defendant “cannot be related back to the

28 original complaint or the first amended complaint [when] the description of the Doe

1 defendants in those complaints was insufficient to identify anyone.” Lopez v. Gen.

2 Motors Corp., 697 F.2d 1328, 1332 (9th Cir. 1983); see also Ambe v. Air Fr., S.A.,

3 No. 2:17-CV-08719 DDP-Ex, 2018 WL 6435875, at *5 (C.D. Cal. Dec. 7, 2018)

4 (applying Lopez and denying amendment to add the true identity of a Doe when

5 the complaint lacked sufficient detail to identify any Doe).

6 When a new defendant can’t be substituted in for a Doe, an amendment

7 adding the defendant is permissible only if it relates back to the original pleading

8 under either the state’s applicable statute of limitations or Federal Rule of Civil

9 Procedure 15(c)(1)(C). Butler, 766 F.3d at 1159–200; Fed. R. Civ. P. 15(c)(1)(A),

10 (C). Courts apply the more permissive of the two relation back standards. See

11 Butler, 766 F.3d at 1200. For § 1983 actions, the applicable statute of limitations

12 is the “forum state’s statute of limitations for personal injury actions,” which in

13 California is two years. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Under

14 Rule 15(c)(1)(C), an amendment changing the naming of a party is only

15 permissible if, within 120 days of the complaint, the party to be added received

16 notice of the action and “knew or should have known that the action would have

17 been brought against it, but for a mistake concerning the party’s identity.” Fed. R.

18 Civ. P. 15(c)(1)(C); id. 4(m); see also Butler, 766 F.3d at 1202.

19 Here, the FAC made only “cursory and conclusory allegations” about the

20 Doe Defendants’ conduct. (Dkt. 32 at 7). Because those allegations were

21 “insufficient to identify anyone,” Lopez, 697 F.2d at 1332, Lovisa and Foster may

22 only be added as new defendants—they may not be substituted in for any Doe

23 Defendant in either the federal or state claims. The claims against Lovisa and

24 Foster accrued on November 11, 2019, meaning the two-year statute of limitations

25 had run when the SAC was filed on April 1, 2022. (SAC ¶ 75). The allegations in

26 the FAC were also insufficient to give Lovisa or Foster notice of the action within

27 120 days of the FAC’s filing.

28 The Court finds that the claims against Lovisa and Foster don’t relate back

1 to the Complaint or the FAC and that Lovisa and Foster were improperly added to

2 the SAC. County Defendants’ motion is GRANTED as to the claims against

3 Lovisa, and Foster’s joinder is GRANTED as to the claims against her. The claims

4 against Lovisa and Foster are DISMISSED WITH PREJUDICE. Because it is

5 clear that any further amendment here would be futile, these claims are

6 DISMISSED WITHOUT LEAVE TO AMEND. See DeSoto v. Yellow Freight Sys.,

7 Inc., 957 F.2d 655, 658 (9th Cir. 1992).

8 D. Familial Association Claims

9 As the second claim, Honeycutt, S.H., Michael Serna, and Paloma Serna

10 bring claims for deprivation of their right to familial association under the First,

11 Fifth, and Fourteenth Amendments. Lovisa argues these claims should be

12 partially dismissed to the extent they’re brought (1) under the First or Fifth

13 Amendment or (2) by Honeycutt, Elisa Serna’s spouse. Pascua and CCMG

14 Defendants join this argument. (Dkt. 51; 54). Foster asserts qualified immunity

15 against these claims to the extent they’re brought under the First or Fifth

16 Amendment or by Honeycutt, arguing the asserted rights weren’t clearly

17 established at the time of Serna’s death. (Dkt. 52-1 at 5–22).

18 The Fourteenth Amendment protects the right to familial association,

19 “guarantee[ing] that parents will not be separated from their children without due

20 process of law except in emergencies.” Mabe v. San Bernardino Cnty. Dep’t of

21 Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001) (citing Stanley v. Illinois,

22 405 U.S. 645, 651 (1972)). Against municipalities, the right to familial association

23 is protected by the Fourteenth Amendment’s due process clause—not the Fifth

24 Amendment’s due process clause. See Bingue v. Prunchak, 512 F.3d 1169, 1174

25 (9th Cir. 2008) (“[T]he Fifth Amendment’s due process clause only applies to the

26 federal government.”). And the First Amendment protects the right to expressive

27 association, not familial association. See Erotic Serv. Provider Legal Educ. &

28 Research Project v. Gascon, 880 F.3d 450, 458 (9th Cir. 2018) (citing Roberts v.

1 U.S. Jaycees, 468 U.S 609, 617–18 (1984)). Courts disagree over whether the

2 Fourteenth Amendment’s protections extend to spousal relationships. Compare

3 Lee v. Cnty. of L.A., No. CV 16-2039 DSF (JPRx), 2018 WL 6016992, at *3

4 (C.D. Cal. Mar. 6, 2018) (recognizing disagreement and declining to extend right

5 to familial association to spouses), with Morales v. City of Delano, 852 F. Supp. 2d

6 1253, 1273–74 (E.D. Cal. 2012) (holding that Fourteenth Amendment protects the

7 right of spouses to “the support and companionship of each other”). See also

8 Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (noting courts should

9 exercise restraint in expanding substantive due process rights).

10 Honeycutt has voluntarily moved to dismiss his Fourteenth Amendment

11 claim for deprivation of his right to familial association. (Dkt. 60 at 15). Lovisa and

12 Foster’s motions are therefore GRANTED as to Honeycutt’s claim and his claim

13 is DISMISSED WITH PREJUDICE.

14 Plaintiffs didn’t respond to County Defendants’ argument regarding the First

15 and Fifth Amendment claims. County Defendants argue that Plaintiffs’ “failure to

16 oppose” the argument against these claims is tantamount to a concession of their

17 dismissal. (Dkt. 62 at 2). When a plaintiff fails to respond to an argument raised in

18 a motion to dismiss, a court may dismiss the challenged claim as abandoned.

19 Walsh v. Nev. Dep’t of Human Resources, 471 F.3d 1033, 1037 (9th Cir. 2006)

20 (holding a plaintiff “effectively abandoned” a claim when her opposition failed to

21 address arguments raised in a motion to dismiss).

22 Regardless of Plaintiffs’ apparent abandonment of their First and Fifth

23 Amendment claims, those claims fail as a matter of law. The First Amendment

24 doesn’t protect familial relationships. See Erotic Serv., 880 F.3d at 458 (holding

25 the First Amendment protects the right to expressive association, but not the right

26 to intimate or familial association). And “the Fifth Amendment’s due process

27 clause only applies [against] the federal government,” not municipal governments.

28 See Bingue, 512 F.3d at 1174. Lovisa and Foster’s motions are GRANTED as to

1 the right to familial association claims. Those claims are DISMISSED WITH

2 PREJUDICE to the extent they rely on the First or Fifth Amendment.

3 E. Supervisory Liability

4 County Defendants move to dismiss the § 1983 supervisory liability claims

5 brought against Gore and Lee. (Dkt. 50-1 at 14–17). They argue the SAC fails to

6 allege sufficient facts to support these claims. (Id.). The Court previously

7 dismissed the FAC’s supervisory liability claims against Gore and Lee without

8 prejudice for failing to state a claim under § 1983, (Dkt. 32 at 10–11), but Plaintiffs

9 have now realleged the same claims in the SAC, (SAC ¶¶ 220–263).

10 A supervisor may be liable under § 1983 if either he was personally involved

11 in the constitutional deprivation or there is a sufficient causal connection between

12 his unlawful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d

13 991, 1003–04 (9th Cir. 2012). “Even if a supervisory official is not directly involved

14 in the allegedly unconstitutional conduct, ‘[a] supervisor can be liable in his

15 individual capacity for his own culpable action or inaction in the training,

16 supervision, or control of his subordinates; for his acquiescence in the

17 constitutional deprivation; or for conduct that showed a reckless or callous

18 indifference to the rights of others.’ Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir.

19 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011)).

20 A claim alleging a supervisor “knew of unconstitutional conditions and

21 ‘culpable actions of his subordinates’ but failed to act amounts to ‘acquiescence

22 in the unconstitutional conduct of his subordinates’ and is ‘sufficient to state a

23 claim of supervisory liability.’” Keates, 883 F.3d at 1243 (quoting Starr, 652 F.3d

24 at 1208). But it’s not enough to allege a pattern of constitutional violations and

25 inaction on the part of a supervisor. Instead, a plaintiff must allege that the

26 supervisor knows of the pattern, so the inaction can constitute an “intentional

27 decision.” See Sandoval v. Cnty. of San Diego, 985 F.3d 657, 669 (9th Cir. 2021).

28 Conclusory allegations about a supervisor’s knowledge are sufficient to state a

1 claim of supervisory liability when supported by specific factual allegations.

2 Compare Starr, 652 F.3d at 1209–12 (allegations the sheriff was aware of

3 unconstitutional conditions in the jail were sufficient to state a claim of supervisory

4 liability for deliberate indifference to an inmate’s medical needs when the

5 allegations were supported by specific, detailed allegations about when the sheriff

6 received specific information about conditions in the jail), with Keates, 883 F.3d at

7 1243 (conclusory allegations regarding a supervisor’s conduct were insufficient to

8 state a claim of supervisory liability), and Lowe v. Cnty. of Butte, No. 2:20-cv-

9 1997-JAM-DMC, 2021 WL 1890386, at *6 (E.D. Cal. May 11, 2021) (conclusory

10 allegations the sheriff had knowledge of unconstitutional jail conditions were

11 insufficient to state a claim when not supported by specific facts regarding the

12 sheriff’s knowledge). Because Plaintiffs didn’t respond to County Defendants’

13 argument regarding the sufficiency of the supervisory liability claims against Gore

14 and Lee, County Defendants once again argue that the claims should be

15 dismissed. (Dkt. 62 at 2).

16 Notwithstanding Plaintiffs’ apparent abandonment of those claims, the SAC

17 adequately pleads claims for supervisory liability against Gore and Lee. Like the

18 FAC, the SAC sufficiently alleges a long pattern of harm to inmates in the County’s

19 custody, (SAC ¶¶ 92, 127(a)–(r), 141, 148–50), and that Gore and Lee failed to

20 act to correct that pattern, (id. ¶¶ 93, 95, 148, 153–54). While the SAC contains

21 many of the same allegations as the FAC, (see Dkt. 32 at 10–11), the Court finds

22 the SAC alleges sufficient facts to suggest that Gore and Lee were aware of the

23 pattern of harm. For example, the SAC alleges Gore and Lee were “aware of

24 Constitutional deficiencies in the delivery of seriously needed medical and

25 psychiatric care due to the [National Commission on Correctional Healthcare

26 (“NCCHC”)] audit, the Grand Jury’s report on [the County’s information

27 management software], and the high number of deaths and injuries by inmates.”

28 (Id. ¶ 154). The SAC doesn’t directly allege that Gore and Lee reviewed the

1 NCCHC audit, but it does allege that Gore and Lee were responsible for policies

2 and procedures in the County’s jails, (id. ¶¶ 11–13), that Sheriff’s Department

3 “contracted [the NCCHC] for assistance regarding compliance with the NCCHC

4 Standards for Health Services in Jails,” and the NCCHC delivered its report in

5 January 2017, (id ¶¶ 136–37). The NCCHC report noted that Las Colinas failed

6 to meet twenty-eight “essential standards” necessary for NCCHC accreditation.

7 (id. ¶ 140). Several of these failures directly suggest constitutionally deficient

8 practices, such as the lack of screening and initial health assessments, (id. ¶ 141),

9 or the continued use of outdated protocols for medically supervised withdrawal,

10 (id. ¶¶ 147–52). The SAC also alleges that Gore responded to complaints over jail

11 deaths by penning an op-ed. (Id. ¶¶ 118–19, 124). Taken together, these

12 allegations support the inference that that Gore and Lee knew of constitutionally

13 deficient practices in Las Colinas. See, e.g., Gibson v. Cnty. of Washoe, 290 F.3d

14 1175, 1194–96 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of

15 L.A., 833 F.3d 1060 (9th Cir. 2016) (holding prison officials violate the Constitution

16 when failing to medically screen new inmates); Snow v. McDaniel, 681 F.3d 978,

17 988 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744

18 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (holding prison officials violate the

19 Constitution when choosing a treatment that is “medically unacceptable under the

20 circumstances”).

21 The SAC sufficiently alleges that Gore and Lee knew of the pattern of

22 constitutional violations in the County’s jails and, therefore, sufficiently alleges that

23 their inaction represented an intentional decision. See Sandoval, 985 F.3d at 669.

24 This is sufficient for supervisory liability to attach against Gore and Lee. County

25 Defendants’ motion is DENIED as to those claims.

26 IV. CONCLUSION

27 County Defendant and Foster’s motions to dismiss are GRANTED IN PART

28 and DENIED IN PART. The SAC fails to sufficiently allege facts to identify Doe

1 ||Defendants 3-30, so all claims against those defendants are DISMISSED

2 || WITHOUT PREJUDICE. Lovisa and Foster can’t properly be substituted and the

3 ||}amendment adding them doesn't relate back, so all claims against those

4 ||Defendants are DISMISSED WITH PREJUDICE. Familial association claims can

5 || only be brought against municipalities under the Fourteenth Amendment and can’t

6 ||be brought by spouses, so the second claim is DISMISSED WITH PREJUDICE

7 the extent it is brought under the First or Fifth Amendment or by Honeycutt.

8 IT IS SO ORDERED.

9 Dated: February 15, 2023 / ‘b,

10 Hon. Larry Alan Burns

11 United States District Judge

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