1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ESTATE OF LONNIE RUPARD BY Case No.: 23-cv-1357-CAB-BLM

AND THROUGH HIS SUCCESSORS-

14

IN-INTEREST JUSTINO RUPARD & ORDER (1) DENYING MOTION TO

15 RONNIE RUPARD, et al, SUBSTITUTE; (2) DISMISSING SURVIVAL CLAIMS; and (3) 16 Plaintiffs,

DENYING-IN-PART AND

17 v. GRANTING-IN-PART MOTIONS TO

DISMISS

18 COUNTY OF SAN DIEGO, et al,

19 Defendants.

20 [Doc. Nos. 89, 119, 121] 21 22 This case concerns the death of decedent Lonnie Rupard (“Decedent”) on March 17, 23 2022 while in custody at the San Diego Central Jail. Presently before the court is (1) a 24 motion to dismiss the second amended complaint (“SAC”) filed by Correctional Healthcare 25 Partners [Doc. No. 89], (2) a motion to dismiss filed by the County Defendants [Doc. No. 26 119], and (3) an ex parte motion to substitute representative of the Estate of Lonnie Rupard 27 filed by Plaintiffs Justino Rupard and Ronnie Rupard [Doc. No. 121]. Each motion has 28 been fully briefed, and the Court finds them suitable for determination on the papers. 1 I. ALLEGATIONS IN THE SAC 2 On December 19, 2021, decedent Lonnie Rupard (“Decedent”) was arrested by 3 National City Police for a parole violation and booked in San Diego Central Jail (the “Jail”). 4 [SAC at ¶ 52]. The arresting officer allegedly reported that Decedent “had a history of 5 psychotic disorders and was being combative.” [SAC at ¶ 54]. On the day of the arrest, 6 Defendant Nurses Ben Samonte and May Ng conducted a medical clearance screening, 7 where Decedent was verbally abusive and not fully oriented. [SAC at ¶ 56]. Following 8 this initial screening, Decedent was housed in the general population as opposed to the 9 Jail’s “Psychiatric Stabilization Unit.” [SAC at ¶ 60]. On December 29, 2021, Decedent 10 underwent a psychiatric evaluation by Defendant Anthony Cruz, MD. [SAC at ¶ 64]. 11 Decedent was allegedly prescribed psychiatric medications by Defendant Cruz, a doctor 12 for Defendant Liberty Healthcare Partners. [SAC at ¶ 67]. After Defendant Cruz 13 prescribed these medications, multiple nurses “documented that [Decedent] refused to take 14 his medications . . . and was unable to sign the medical consent form on multiple occasions 15 between December 20, 2021 – January 20, 2022.” [SAC at ¶ 68]. On January 20, 2022, 16 Defendant Cruz allegedly discontinued Decedent’s prescriptions. [SAC at ¶ 69]. 17 Throughout his time at the Jail, Decedent allegedly “deteriorate[d] mentally and 18 physically.” [SAC at ¶ 72]. At least four “sick calls” were made for Decedent during his 19 time at the Jail, and his vital signs were not taken during these calls as purportedly required 20 by the San Diego Sheriff’s Department Medical Services Division Policies and Procedures 21 Manual. [SAC at ¶ 108]. On February 1, 2022, Jail staff requested Decedent be seen by a 22 qualified mental health professional. [SAC at ¶ 75]. On February 9, 2022, Defendant 23 Christina Anosike completed a wellness check on Decedent in response to this request. At 24 the wellness check, Decedent “was not able to be fully assessed due to his refusal and/or 25 inability to cooperate.” [SAC at ¶ 78]. On February 20, 2022, Decedent was placed on 26 lockdown due to his psychotic state. [SAC at ¶ 82]. On February 22, 2022, Decedent was 27 seen again by Defendant Cruz and at this visit Decedent “purportedly did not answer 28 questions, rambled incoherently, and became verbally aggressive.” [SAC ¶ 84]. 1 On February 23, 2022, staff allegedly requested for a second time for Decedent to 2 be seen by a qualified mental health professional for a wellness check. [SAC at ¶ 89]. No 3 wellness check was performed from February 23, 2022 up until Decedent’s death on March 4 17, 2022. [SAC at ¶ 90]. On March 14, 2022, a court-ordered psychiatrist allegedly 5 conducted an examination of mental competency to stand trial and observed that 6 Decedent’s cell was dirty, with “feces on the floor and food smeared on the walls.” [SAC 7 at ¶ 93]. At this examination, Decedent was incoherent and the psychiatrist determined he 8 was not competent to stand trial. [SAC at ¶ 100]. This psychiatrist allegedly recommended 9 referral to a state hospital and that Decedent be given antipsychotic medication 10 involuntarily. [SAC at ¶ 101]. No action was taken, and Decedent was found unresponsive 11 inside of his cell on March 17, 2022. [SAC at ¶ 111]. He was declared dead the same day. 12 [SAC at ¶ 111]. 13 An autopsy was performed on March 19, 2022 and, upon reviewing the 14 circumstances of Decedent’s death including his physical condition, the medical examiner 15 allegedly determined Decedent’s “manner of death is classified as homicide.” [SAC at ¶ 16 128]. The autopsy, released on March 2, 2023, found that Decedent weighed 105 pounds 17 at the time of his death, a weight loss of 60 pounds between December 20, 2021 to March 18 17, 2022. The autopsy found that the cause of Decedent’s death was a combination of 19 “pneumonia, malnutrition, and dehydration in the setting of neglected schizophrenia, with 20 Covid-19 viral infection, pulmonary emphysema, and duodenal ulcer listed as contributing 21 condition.” [SAC at ¶ 127]. The medical examiner concluded that “while elements of self- 22 neglect were present, ultimately this decedent was dependent upon others for his care; 23 therefore, the manner of death is classified as homicide.” [SAC at ¶ 128]. 24 In the SAC, Plaintiffs additionally assert that the County has a long history of 25 deliberate indifference to the medical needs of pre-trial detainees. Prior to Decedent’s 26 death, the County of San Diego Sheriff’s Department never achieved certification by the 27 National Commission on Correctional Health Care, with the Commission finding that the 28 County “failed to meet 26 of 38 ‘essential standards.’” [SAC at ¶ 159-160]. Immediately 1 prior to Decedent’s death, the State of California performed an audit of 815 deaths in the 2 County of San Diego jails. In February 2022, the state produced a 126-page report detailing 3 the “deficiencies with how the Sheriff’s Department provides care for and protects 4 incarcerated individuals, which likely contributed to in-custody deaths.” [SAC at ¶ 171]. 5 The SAC highlights a section in the report that allegedly documents the inconsistent follow 6 up with inmates with medical and mental health needs. [SAC at ¶¶ 174-176]. 7 II. PROCEDURAL HISTORY 8 On July 26, 2023, Plaintiffs Justino Rupard and Ronnie Rupard filed the original 9 complaint in this Court individually as Decedent’s biological children and successors in 10 interest representing the Estate of Lonnie Rupard. All claims in the SAC arise from the 11 circumstances leading up to Decedent’s death and are filed against the County, County 12 officials, Jail employees, and contracted medical staff involved in the oversight of 13 Decedent during his time at the Jail. 14 On November 21, 2023, Plaintiffs filed the first amended complaint (“FAC”), 15 attaching Justino Rupard’s notarized successor in interest affidavit pursuant to California 16 Code of Civil Procedure § 377.32(a) asserting that “there are no probate proceedings 17 pending at this time. However, I intend to file a Petition for Appointment as Administrator 18 of the Estate of Lonnie Rupard.” [Doc No. 30-1]. On December 4, 2023, Plaintiff Justino 19 Rupard filed a Petition for Probate seeking to name Terri Lopez as Personal Representative 20 and Administrator of the Estate. [Doc. No. 121 at 4]. On March 7, 2024, after receiving 21 leave from the Court to add the identities of Doe Deputy Defendants allegedly assigned to 22 oversee Decedent in the days preceding his death,1 Plaintiffs filed the second amended 23 complaint. [Doc. No. 79]. Defendants Cruz and Liberty Healthcare Corporation answered 24 the SAC. 25 26

27 1 Since the filing of the pending motions, Plaintiffs have voluntarily dismissed Deputies K. Key, M. 28 1 On March 25, 2024, Defendant Correctional Healthcare Partners (“CHP”) filed a 2 motion to dismiss the SAC. [Doc. No. 89]. On May 14, 2024, Defendants County of San 3 Diego and County employee Defendants filed a motion to dismiss the SAC. [Doc. No. 4 119]. On May 30, 2024, Plaintiffs Justino and Ronnie Rupard filed an ex parte motion to 5 substitute representative of the Estate of Lonnie Rupard. [Doc. No. 121]. 6 III. STANDARD OF REVIEW 7 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 8 defense that the complaint “fail[s] to state a claim upon which relief can be granted”— 9 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 10 states a recognizable legal theory and sufficient facts in light of Federal Rule of Civil 11 Procedure 8(a)(2), which requires a “short and plain statement of the claim showing that 12 the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 13 allegations,’ . . . it [does] demand . . . more than unadorned, the defendant-unlawfully- 14 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 15 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 16 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim of relief that is plausible on its face.’” Id. (quoting 18 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P, 12(b)(6). A claim is facially plausible 19 when the collective facts pled “allow . . . the court to draw the reasonable inference that 20 the defendant is liable for the misconduct alleged.” Id. There must be “more than a sheer 21 possibility that a defendant has acted unlawfully.” Id. Facts “merely consistent with a 22 defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 23 550 U.S. at 557). The Court need not accept as true “legal conclusions” contained in the 24 complaint, id., or other “allegations that are merely conclusory, unwarranted deductions of 25 fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 26 (9th Cir. 2010). 27 28 1 IV. DISCUSSION 2 The SAC asserts, pursuant to 42 U.S.C. § 1983, claims of deliberate indifference to 3 serious medical need and right to familial association. Both claims are brought against 4 individual medical providers, Jail staff, County supervisors and the County of San Diego 5 pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978)—with the 6 deliberate indifference claim asserted by the Estate and the right to association claim 7 brought by individual Plaintiffs Justino and Ronnie Rupard. The SAC also asserts four 8 causes of action under California state law on behalf of the Estate: (1) failure to summon 9 medical care in violation of California Government Code § 845.6; (2) violation of the 10 California Bane Act; (3) dependent adult neglect; and (4) negligence. The final cause of 11 action brought by Plaintiffs Justino and Ronnie individually is wrongful death. 12 a. Plaintiffs’ Motion to Substitute and Standing for Survival Claims 13 On May 30, 2024, Plaintiffs Justino and Ronnie Rupard filed an ex parte motion to 14 substitute Terri Lopez as the representative of the Estate of Lonnie Rupard. [Doc. No. 15 121]. The County Defendants filed an opposition, raising an argument regarding the lack 16 of Plaintiffs’ initial standing to bring claims as successors in interest on behalf of the Estate. 17 The County Defendants’ opposition is also related to its standing argument brought in its 18 motion to dismiss. Because the decision of this motion to substitute concerns standing of 19 Plaintiffs to bring survival claims, the Court addresses it first. 20 California Code of Civil Procedure § 337.30 sets forth California’s statutory 21 requirements for standing to bring a survivor action. “A cause of action that survives the 22 death of the person entitled to commence an action or proceeding passes to the decedent’s 23 successor in interest . . ., and an action may be commenced by the decedent’s personal 24 representative or, if none, by the decedent’s successor in interest.” Hayes v. Cnty. of San 25 Diego, 736 F.3d 1223, 1129 (9th Cir. 2013) (internal quotations and citations omitted). 26 “Where there is no personal representative for the estate, the decedent’s ‘successor in 27 interest’ may prosecute the survival action if the person purporting to act as successor in 28 interest satisfies the requirements of California law . . . .” Id. Pursuant to California Code 1 of Civil Procedure § 377.32, a survival action brought by a successor in interest in 2 California must be accompanied by an affidavit including, among other things, “[i]f the 3 decedent’s estate was administered, a copy of the final order showing the distribution of 4 the decedent’s cause of action to the successor in interest,” along with facts supporting 5 statements that the affiant is either the decedent’s successor in interest or is authorized to 6 act on the successor in interest’s behalf, in the action. Cal. Civ. Proc. Code § 377.32(4)- 7 (5). The required affidavit provides, in part, that “[n]o other person has a superior right to 8 commence the action or proceeding or to be substituted for the decedent in the pending 9 action or proceeding.” Cal. Civ. Proc. Code § 377.32(5)(B)(g). 10 “Standing must ‘persist throughout all stages of the litigation.’” Magadia v. Wal- 11 Mart Assocs., Inc., 999 F.3d 668, 674 (9th Cir. 2021) (citing Hollingsworth v. Perry, 570 12 U.S. 693, 705 (2013)). “At its core, standing concerns a specific party’s interest in the 13 outcome of a lawsuit.” Turner v. Victoria, 15 Cal. 5th 99, 111 (2023). 14 Here, Plaintiff Justino Rupard filed the required affidavit alongside the first amended 15 complaint. However, in his required affidavit, he stated that he intended to open a 16 proceeding in probate for the Estate of Lonnie Rupard. 2 On December 4, 2023, Justino 17 filed the petition for probate with the Probate Court. This action immediately created a 18 dispute over who has the superior right to commence survival actions on behalf of 19 Decedent pursuant to § 377.32, and the purported successors in interest lost standing to file 20 any action on behalf of the Decedent. Furthermore, Plaintiffs did not petition for one of 21 themselves to be the administrators of the Estate, they requested a different relative 22 entirely. Terri Lopez was not appointed as administrator of the Estate until May 17, 2024. 23 [Doc. No. 121 at 4]. Therefore, standing did not exist when Plaintiffs filed the SAC on 24 March 7, 2024. Due to the lack of standing to file the SAC in the first instance, the motion 25 26 27 2 There is no evidence on the docket that Ronnie Rupard filed the required affidavit. Therefore, even ignoring Justino Rupard’s decision to open the probate proceedings prior to filing the SAC, there exists 28 1 to substitute is DENIED. The Estate is DISMISSED from this action as a Plaintiff, and 2 all survival claims against all Defendants are DISMISSED WITHOUT PREJUDICE to 3 being re-asserted by the appropriate representative of the Estate.3 In light of the dismissal 4 of the survival claims, the remainder of this Order defines “Plaintiffs” as solely Justino and 5 Ronnie Rupard. 6 b. The County Defendants’ Motion to Dismiss 7 The remaining federal claim brought pursuant to 42 U.S.C. § 1983 alleges a 8 violation of Plaintiffs’ individual Fourteenth Amendment substantive due process rights to 9 familial association. This claim is brought against all Defendants and is based on the 10 allegations in the SAC that members of the custodial, medical, and supervisory staff at the 11 Jail were deliberately indifferent to Decedent’s serious medical need during his time at the 12 Jail leading up to his death. “To state a claim under section 1983, a plaintiff must allege 13 the violation of a right secured by the constitution and laws of the United States, and must 14 show that the alleged deprivation was committed by a person acting under the color of state 15 law.” West v. Atkins, 487 U.S. 42, 48 (1988). 16 i. Right to Association 17 Plaintiffs allege that Defendants’ deliberate indifference to the life of Decedent 18 while in custody caused a violation of Plaintiffs’ substantive due process rights and 19 deprived them of their liberty interests in the family relationship. [SAC at ¶¶ 232, 235.] 20 In their motion, the County Defendants argue that Plaintiffs have “failed to provide 21 sufficient factual allegations that the County Defendants were deliberately indifferent to 22 decedent’s serious medical need” to assert a right to familial association. [Doc. No. 119 at 23 18.]. The County Defendants further argue that any alleged deliberate indifference would 24 not be conduct that “shocks the conscience” to amount to a due process violation. 25 26

27 3 The Court takes no position on whether a newly filed case would be barred by the applicable statute of 28 1 “Parents and children may assert Fourteenth Amendment substantive due process 2 claims if they are deprived of their liberty interest in the companionship and society of their 3 child or parent through official conduct.” Lemire v. California Dep’t of Corr. & Rehab., 4 726 F.3d 1062, 1075 (9th Cir. 2013). Such a claim “is not a survivorship claim.” Miles v. 5 Cnty. of Alameda, No. 3:22-CV-06707-WHO, 2023 WL 8853717, at *6 (N.D. Cal. Dec. 6 21, 2023). “[O]nly official conduct that ‘shocks the conscience’ is cognizable as a due 7 process violation.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). To assess 8 whether the County Defendants engaged in conduct that “shocks the conscience” to violate 9 Plaintiffs’ individual rights, the Court must examine the circumstances leading to 10 Decedent’s death and decide whether the County Defendants actions amount to deliberate 11 indifference to Decedent’s serious medical need. See id. (“The parties mistakenly suggest 12 that the choice is between ‘shocks the conscience’ and ‘deliberate indifference’ as the 13 governing standard, when in fact the latter is a subset of the former”). 14 Indeed, the “shocks the conscience” standard in the context of pretrial detainee 15 deaths can be met by a showing of deliberate indifference, “so long as prison officials had 16 time to deliberate before acting or failing to act in a deliberately indifferent manner.” 17 Lemire, 726 F.3d at 1075; see also Porter, 546 F.3d at 1137. Indifference can be truly 18 shocking where “extended opportunities to do better are teamed with protracted failure to 19 even care.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853 (1998). 20 The Ninth Circuit has found that the inquiry into deliberate indifference is an 21 objective one. The components of this inquiry are: 22 (i) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 23 at substantial risk of suffering serious harm; (iii) the defendant did not take 24 reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 25 involved—making the consequences of defendant’s conduct obvious; and 26 (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 27

28 Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 1 2 The Ninth Circuit further explained: 3 “with respect to the third element, the defendant’s conduct must be objectively unreasonable, a test that will necessarily ‘turn on the facts and 4 circumstances of each particular case.'" . . . The mere lack of due care by a 5 state official does not deprive an individual of life, liberty, or property under the Fourteenth Amendment. Thus, the plaintiff must prove more than 6 negligence but less than subjective intent—something akin to reckless 7 disregard. Id. 8 When assessing a defendant’s deliberate indifference to the serious medical need of 9 a prisoner, the Ninth Circuit has provided a two-part test. See Jett v. Penner, 439 F.3d 1091, 10 1096 (9th Cir. 2006). First, the plaintiff “must show a ‘serious medical need’ by 11 demonstrating that ‘failure to treat prisoner’s condition could result in further significant 12 injury or the ‘unnecessary and wanton infliction of pain.’” Id. The Court finds that the 13 allegations of Decedent’s pneumonia, malnutrition, and dehydration in the setting of 14 neglected schizophrenia qualify as serious medical needs. See, e.g., Wilhem v. Rotman, 15 680 F.3d 1113, 1122 (9th Cir. 2012) (finding prisoner’s hernia was a serious medical need 16 in the context of lack of follow-up). 17 Next, the plaintiff must show “the defendant’s response to the need was deliberately 18 indifferent” by showing “(a) a purposeful act or failure to respond to a prisoner’s pain or 19 possible medical need and (b) the harm caused by the indifference.” Wilhem, 680 F.3d at 20 1122. “Indifference may appear when prison officials deny, delay or intentionally interfere 21 with medical treatment . . .” Jett, 439 F.3d at 1096. As alleged, the County Defendants 22 engaged in deliberate indifference to Decedent’s serious medical need by 23 o The alleged failure of Doe Medical Providers to adhere to the San Diego 24 Sherriff’s Department Medical Services Manual when they did not record 25 Decedent’s vital signs or weight during at least four “sick calls” after 26 December 19, 2021. 27 28 1 o The alleged failure of Defendant Christina Anosike to refer Decedent to a 2 medical doctor despite his “psychotic presentation, obvious weight loss, and 3 overall deteriorating physical health” after an incomplete wellness check on 4 February 9, 2022. [SAC at ¶¶ 76-80] 5 o The alleged failure of Defendant Deputies to monitor Decedent and by the 6 nurses to complete a wellness check between February 23, 2022 – March 17, 7 2022. This failure is detailed by the court-appointed psychiatrist’s 8 observation of the Decedent’s cell as “as dirty with trash throughout. The 9 toilet was full of excrement and the room was malodorous. There were feces 10 on the floor and food smeared on the walls” at his March 14, 2022 11 examination. [SAC at ¶ 93]. 12 o The alleged failure of the County Defendants to send Decedent to a state 13 hospital or forcibly administer antipsychotic medications as required by law 14 following the court-ordered psychiatrist’s recommendation. [SAC at ¶¶ 101- 15 102]. 16 Ultimately, the totality of the circumstances leading to Decedent’s death adequately 17 pleads deliberate indifference to the Decedent’s serious medical needs. However, because 18 the inquiry does not stop here for a violation of Plaintiffs’ right to association, the Court 19 must assess whether the SAC adequately alleges that each individual County Defendant’s 20 deliberately indifferent actions rose to the level of “conscience shocking” to violate the 21 Fourteenth Amendment. 22 1. Ben Samonte and May Ng 23 Plaintiffs allege in the SAC that Ben Samonte and May Ng were the nurses who 24 completed the Decedent’s medical clearance screening on December 19, 2021. The only 25 facts alleged pertaining to Samonte and Ng are that at the conclusion of this screening, they 26 failed to refer him be housed at the Psychiatric Stabilization Unit despite the Decedent 27 being “unwilling or unable to sign the screening or general informed consent form, was not 28 fully orientated, and was verbally abusive.” [SAC at ¶ 56]. There are no further facts 1 alleged involving Samonte or Ng as it relates to Decedent’s time at the Jail. The failure to 2 assign Decedent to the Psychiatric Stabilization Unit upon intake is not deliberate 3 indifference that “shocks the conscience” to amount to a substantive due process violation. 4 The motion to dismiss Samonte and Ng is granted. 5 2. Christina Anosike 6 Plaintiffs allege in the SAC that Christina Anosike was the qualified mental health 7 professional assigned to assess Decedent on February 9, 2022, almost two months after he 8 was booked in the Jail. Unlike the initial intake meeting with Samonte and Ng, Anosike 9 observed that Decedent had “impoverished thought,” observed his physical condition, and 10 heard from Deputies that he routinely talked to himself. There were allegedly four sick 11 calls made for Decedent prior to Anosike’s wellness check and Decedent also allegedly 12 suffered physical injuries from force by Deputies. In the days following this visit, 13 Decedent was placed on lockdown due to his psychotic state. A reasonable medical 14 professional likely would have appreciated the risk of failing to recommend Decedent 15 further medical care. These facts adequately allege a reckless disregard for Decedent’s 16 schizophrenia rising to the level of conscience shocking that cannot be dismissed at this 17 stage in the litigation. The motion to dismiss Anosike is denied. 18 3. Deputy Defendants 19 The County argues that the named Deputy Defendants should be removed from 20 Plaintiffs’ § 1983 claims because they “fail to tie their allegations to any particular 21 defendant.” [Doc. No. 119 at 16]. Plaintiffs’ state their § 1983 claim against those 22 Deputies working shifts in housing unit 7D between March 14, 2022 and March 17, 2022: 23 the three critical days after the court-ordered psychiatrist allegedly recommended Decedent 24 be sent to a hospital and be involuntarily medicated by law (and before Decedent’s death). 25 [SAC at ¶ 43]. When assessing the conscience shocking standard, the alleged lack of action 26 pertaining to Decedent’s needs by the Deputy Defendants during these three days, 27 considering the assertion that the symptoms of his pneumonia, malnutrition, and 28 1 dehydration were clear, is sufficient to state a claim. Therefore, the motion to dismiss the 2 Deputy Defendants is denied. 3 4. Bill Gore, Kelly Martinez, Jon Montgomery 4 While the caption of the complaint alleges that Defendants Bill Gore, Kelly 5 Martinez, and Jon Montgomery are being sued in their official capacities, the allegations 6 against those three Defendants are properly pled in the text of the complaint as claims 7 against them in their official capacities as Sheriff, Undersheriff, and Chief Medical Officer 8 of the San Diego Sheriff’s Department at the time Decedent was in custody.4 The Parties 9 do not appear to dispute that these three are properly pled as supervisors. The County of 10 San Diego argues that these Defendants cannot be held liable as supervisors here because 11 “no information is provided [in the SAC] as to how Sheriffs Gore or Martinez or Chief 12 Medical Officer Dr. Montgomery failed to properly supervise County subordinates, or 13 allegedly set in motion a series of acts that he or she knew would result in a constitutional 14 deprivation.” [Doc. No. 119 at 14]. 15 To be liable as a supervisor under § 1983, (1) a defendant must have been personally 16 involved in the constitutional deprivation, or (2) there must be a sufficient causal 17 connection between the defendant supervisor’s wrongful conduct and the constitutional 18 violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). The causal connection 19 can include “1) the supervisor’s own culpable action or inaction in the training, supervision, 20 or control of subordinates; 2) their acquiescence in the constitutional deprivation of which 21 a complaint is made; 3) their conduct showed a reckless or callous indifference to the rights 22 of others.” Lemire, 726 F.3d at 1085 (internal citations and quotations omitted). Thus, to 23 state a claim based on supervisory liability, a complaint must allege that “the supervisor 24 25 4 The County additionally argues that Gore should be dismissed “because there is no causal link alleged 26 between Sheriff Gore who retired on February 3, 2022, and any alleged failures resulting in decedent’s death on March 17, 2022.” [Doc. No. 1119 at 15]. The Court believes this argument to be premature 27 without further information concerning the state of Decedent throughout his time at the Jail from December 20, 2021 to March 17, 2022. Therefore, this argument is denied without prejudice and may 28 1 breached a duty to plaintiff which was the proximate cause of the injury.” Starr, 652 F.3d 2 at 1207 (internal citation omitted). 3 Here, Plaintiffs allege that the supervisor Defendants’ failure to train those County 4 employees responsible with the oversight of Decedent during his time at the Jail caused the 5 constitutional deprivation in this case, specifically the Plaintiffs’ substantive due process 6 right to familial association and companionship. The complaint alleges that County 7 employees under the supervision of Gore, Martinez, and Montgomery at the time of 8 Decedent’s time of custody and death: 9 • Did not know how to use JMIS, the only system used in the Jails to 10 communicate the medical needs of inmates. [SAC at ¶ 167-168] 11 • Did not comply with the policies and procedures of the San Diego Sherriff’s 12 Department Medical Services Manual by failing to take vital signs at wellness 13 checks and during sick calls. 14 • Failed to provide medical treatment to individuals suffering from mental 15 health conditions such as schizophrenia. 16 Plaintiffs allege that the failure to train these employees directly caused the conscience- 17 shocking actions of their subordinates and subsequent constitutional violations in this case. 18 The State Audit of the 815 deaths of inmates in custody, released a month prior to 19 Decedent’s demise, Plaintiffs contend further demonstrates that these supervisors were 20 aware they needed to take steps to act and prevent these deaths. Therefore, the SAC 21 sufficiently alleges a failure to train and inaction to find that Gore, Martinez, and 22 Montgomery can be held liable as the supervisors for the constitutional violations of their 23 subordinates. 24 5. Qualified Immunity of Individual Defendants 25 The County argues that, even if Plaintiffs could state a § 1983 claim against the 26 individual County Defendants, all individual County Defendants are exempt from that 27 claim due to qualified immunity. 28 1 When Defendants assert qualified immunity in a motion to dismiss under Rule 2 12(b)(6), “dismissal is not appropriate unless [the Court] can determine, based on the 3 complaint itself that qualified immunity applies.” Groten v. California, 251 F.3d 844, 851 4 (9th Cir. 2001). “Determining whether officials are owed qualified immunity involves two 5 inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, 6 the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, 7 whether the right was clearly established in light of the specific context of the case.” 8 Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d 963, 9 970 (9th Cir. 2010) (citation and internal quotation marks omitted). 10 The Court has already found that Plaintiffs have sufficiently pled violations of a 11 constitutional right to familial association by at least Defendant Anosike and the Deputy 12 Defendants, thus the Court will only inquire whether the right to familial association in this 13 context was clearly established. “This ‘clearly established law’ test requires more than an 14 alleged ‘violation of extremely abstract rights.’” Curnow By & Through Curnow v. 15 Ridgecrest Police, 952 F.2d 321, 324 (9th Cir. 1991) (quoting Anderson v. Creighton, 483 16 U.S. 635, 639 (1987)). 17 The Ninth Circuit “has recognized that a child has a constitutionally protected liberty 18 interest under the Fourteenth Amendment in the ‘companionship and society’ of her 19 father.” Hayes, 736 F.3d at 1229-30. Most cases before the Ninth Circuit addressing a 20 child’s assertion of the right of familial association focus on the child’s liberty interest in 21 the context of claims relating to parents killed by law enforcement officers. See id.; see 22 also Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998), as 23 amended (Nov. 24, 1998) (“[T]his substantive due process claim may be asserted by both 24 parents and children killed by law enforcement officers[.]”). District courts in this Circuit 25 have additionally explained that right to familial association extends to family members of 26 pretrial detainees who died in custody. See McGinnis v. Cnty. of Sonoma, No. 21-CV- 27 09499 SI, 2023 WL 2743578, at * 2 (N.D. Cal. Mar. 30, 2023) (“a decedent’s survivor . . . 28 can bring a Monell claim based on the [survivor’s] Fourteenth Amendment right to familial 1 association”); see also Miles, 2023 WL 8853717, at *6. A case in this District has also 2 made it unequivocally clear that where a child brought a familial association case for the 3 death of her father in custody, the failure of the County “to provide sufficient medical care 4 violated [the child’s] due process rights.” K.C.A. By & Through Purvis v. Cnty. of San 5 Diego, No. 20-CV-2504 W (BLM), 2021 WL 3370790, at *5 (S.D. Cal. Aug. 3, 2021). 6 In light of the Ninth Circuit case law clearly recognizing children’s rights to familial 7 association, the Court does not find qualified immunity bars liability of the individual 8 Defendants. The Fourteenth Amendment substantive due process right to familial 9 association is a well-litigated right and has been directly recognized in the context of in- 10 custody deaths caused by an alleged failure to address the serious medical needs. See 11 K.C.A., 2021 WL 3370790, at *5. As alleged, both Defendant Anosike and the Deputy 12 Defendants could have recognized at the time of Decedent’s wellness check and the three 13 days leading up to his death that Decedent had serious medical needs that could cause his 14 death. The Court finds that the failure to address those needs may result in a violation of 15 Decedent’s children’s rights. Accordingly, the motion to dismiss based on qualified 16 immunity is denied. 17 6. County of San Diego (Monell) 18 Following Monell v. Department of Social Services, 436 U.S. 658 (1978), “it is well- 19 settled that in claims brought under 42 U.S.C. § 1983, municipalities are liable only for 20 constitutional violations resulting from an official ‘policy or custom.’” Fed’n of African 21 Am. Contractors v. City of Oakland, 96 F.3d 1204, 1216 (9th Cir. 1996), overruled on other 22 grounds by Yoshikawa v. Seguirant, 74 F.4th 1042 (9th Cir. 2023) (quoting Monell, 436 23 U.S. at 694). “[A] municipality cannot be held liable solely because it employs a 24 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a 25 respondeat superior theory.” Monell, 436 U.S. at 691. A government entity cannot be held 26 vicariously liable for the acts of its employees under § 1983 unless a plaintiff can show that 27 the entity’s policy, practice, or custom caused the constitutional violation. See id. A 28 “custom or policy of inaction, however, must be the result of a conscious or deliberate 1 choice to follow a course of action . . . made from among various alternatives by the official 2 or officials responsible for establishing final policy with respect to the subject matter in 3 question.” Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (internal citations 4 and quotations omitted). When alleging a failure to train as a Monell violation, “a plaintiff 5 must show that his or her constitutional injury would have been avoided had the 6 government entity properly trained its employees.” Id. (internal quotations omitted). 7 “[M]ere negligence in training or supervision . . . does not give rise to a Monell claim.” 8 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). 9 “The ‘first inquiry in any case alleging municipal liability under § 1983 is the 10 question whether there is a direct causal link between a municipal policy or custom and the 11 alleged constitutional deprivation.’” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1075 12 (9th Cir.2 016) (en banc) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 392 13 (1989)). The specific elements of a Monell claim are: (1) the plaintiff was deprived of a 14 constitutional right; (2) the municipality had a policy; (3) the policy amounted to deliberate 15 indifference to the plaintiff’s constitutional right; and (4) the policy was the moving force 16 behind the constitutional violation. See Dougherty, 654 F.3d at 900. “A policy can be one 17 of action or inaction.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 18 Plaintiffs filed their right to association claim against the County; thus, this Court 19 must assess the County’s liability pursuant to Monell jurisprudence. As asserted in the 20 SAC, the Monell claim is based on the violation of Plaintiffs’ substantive due process rights 21 under the Fourteenth Amendment to the right of association caused by the County’s 22 deliberate indifference to Decedent’s serious medical needs. As explained, Plaintiffs have 23 pled deliberate indifference by County employees that “shocks the conscience.” Therefore, 24 the proper inquiry is whether there is a sufficient causal link between the County’s alleged 25 inaction or failure to train and the violation of Plaintiffs’ rights. Plaintiffs do not allege a 26 specific custom or policy made by the County to ignore serious medical need of pretrial 27 detainees, the SAC however sufficiently alleges that the County was on notice of multiple 28 instances of insufficient care of dependent pretrial detainees leading to in-custody deaths 1 from at least 2017, when the National Commission on Correctional Health Care found that 2 the County failed to meet 26 of 38 essential health care standards, to February 2022 when 3 the State Audit report of 815 deaths in the County of San Diego Jails was released. 4 Accordingly, the motion to dismiss the Monell claim as it applies to the § 1983 right to 5 association is denied. 6 ii. Wrongful Death 7 The remaining claim brought individually by Plaintiffs is a state law wrongful death 8 claim. The County Defendants argue that Justino and Ronnie lack standing to bring the 9 wrongful death claim because the recently appointed representative of the Estate “has 10 statutory rank.” [Doc. No. 119 at 9]. There is no support for this assumption. California 11 Code of Civil Procedure § 377.60 states “a cause of action for the death of a person caused 12 by the wrongful act or neglect of another may be asserted by [the Decedent’s] children or 13 by the decedent’s personal representative on their behalf.” Cal. Civ. Proc. Code § 14 377.60(a) (emphasis added); see also Adams v. Superior Ct., 196 Cal. App. 4th 71, 78-79 15 (2011) (“either the decedent’s personal representative on behalf of the specified heirs or 16 the specified heirs . . . may assert the wrongful death claim—but not both.”). There is no 17 statutory rank requirement upon a plain reading of the code and the applicable California 18 case law. Therefore, the County’s motion to dismiss the wrongful death cause of action 19 based on the assumption that the Estate representative outranks the Plaintiffs as Decedent’s 20 heirs is denied. 21 The County Defendants further argue that the wrongful death claim is procedurally 22 barred because the statutorily required government claims against the County were filed 23 more than six months after Decedent’s death on March 17, 2022, in violation of California 24 Government Code § 911.2.5 Plaintiffs argue that they were unaware of their causes of 25 26 27 5 The County Defendants attached a request for judicial notice (“RJN”) to their motion to dismiss that includes, inter alia, the individual Plaintiffs’ government tort claims with the County. Plaintiffs do not 28 1 action until Decedent’s autopsy was released on March 2, 2023, which classified 2 Decedent’s death as a homicide due to neglect, and the delayed discovery rule should 3 apply. 4 A party seeking damages from a public entity or its employees must file a claim with 5 the entity before filing suit in court. Cal. Govt. Code §§ 905, 950.2. Under California 6 Government Code Section 911.2(a), “[a] claim relating to a cause of action for death or 7 forth injury to a person . . . shall be presented . . . not later than six months after the cause 8 of action.” If a claim is filed later than the six-month presentment requirement, the party 9 files an additional application to file an untimely claim with the public entity pursuant to 10 California Government Code Section 911.4. 11 “A plaintiff suing the state or a local public entity must allege facts demonstrating 12 either compliance with the claim presentation requirement or an excuse for noncompliance 13 as an essential element of the cause of action.” Ovando v. Cnty. of Los Angeles, 159 Cal. 14 App. 4th 42, 65 (2008). In the SAC, plaintiffs allege that “[p]rior to the release of the 15 [Medical Examiner’s] report on March 2, 2023, Plaintiffs were only provided with a death 16 certificate which stated ‘PENDING’ for the cause of their father’s death. Plaintiffs received 17 no additional information from the County until March 2, 2023, when the . . . autopsy report 18 was published.” [SAC at ¶ 16]. Plaintiff Justino Rupard filed his tort claim against the 19 County of San Diego and its employees on March 9, 2023 and an application for leave to 20 file a late claim on March 14, 2023. [SAC at ¶ 14; RJN Exhibit 1]. Plaintiff Ronnie Rupard 21 filed his tort claim along with an application for leave to file a late claim on March 10, 22 2023. [SAC at ¶ 15; RJN Exhibit 2]. Both claims were filed within two weeks of the 23 release of the autopsy report and were accompanied by an application to file a late claim 24 with the public entity as required by California Government Code Section 911.4 due to the 25 delay in receiving the Medical Examiner’s report. As alleged in the SAC, Plaintiffs 26 complied with the California Government Tort Claims Act prior to filing their complaint 27 in this Court. Therefore, the County Defendant’s argument that the government claims 28 1 were filed more than six months after Decedent’s death is mooted by the proper pleading 2 of compliance with the California Government Tort Claims Act. 3 Finally, the County Defendants make a blanket argument that all County Defendants 4 are immune from Plaintiffs’ state law causes of action pursuant to California Government 5 Code sections 844.6 and 845.6. 6 California Government Code section 844.6 states that “[a] public entity is not liable 7 for an injury to any prisoner.” Cal. Gov’t Code § 844.6(a)(2). California Government 8 Code section 845.6 states that “neither a public entity nor a public employee is liable for 9 injury proximately caused by the failure of the employee to furnish or obtain medical care 10 for a prisoner in his custody.” However, there is an exception to this immunity rule: “the 11 public entity where the employee is acting within the scope of his employment, is liable if 12 the employee knows or has reason to know that the prisoner is in need of medical care and 13 he fails to take reasonable action to summon such medical care.” Cal. Gov’t Code § 845.6 14 (emphasis added). 15 Taken together, this California statutory scheme stands for the proposition that: public entities cannot be held liable for wrongfully or negligently 16 injuring prisoners but public employees can be; unless (2) the prisoner’s 17 injury resulted from a failure to furnish medical care (in which case, neither the public employee or public entity are liable) except (3) when the public 18 employee knew or had reason to know that the injured prisoner was in need 19 of immediate medical care and failed to take reasonable action to summon such medical care (in which case, both the public employee and the public 20 entity are liable). 21 Bousman v. Cty. of San Diego, No. 3:23-CV-1648-W-JLB, 2024 WL 1496220, at *11 (S.D. 22 Cal. Apr. 5, 2024). 23 Plaintiffs base their wrongful death claim on allegations of deliberate indifference 24 by County employees to Decedent’s serious medical need and additionally those 25 employees’ failure to summon medical care pursuant to California Government Code 26 section 845.6. The SAC adequately alleges facts sufficient to demonstrate that at least 27 Defendant Anosike and the Deputy Defendants allegedly “knew or had reason to know” 28 1 that the Decedent was in need of immediate medical care and failed to act, invoking the 2 exception of section 845.6. Due to the nature of the allegations, there is no statutory 3 immunity for the wrongful death claim. The County Defendants’ motion to dismiss the 4 wrongful death claim is denied.6 5 c. Correctional Healthcare Partners’ Motion to Dismiss 6 Correctional Healthcare Partners (“CHP”) also filed a motion to dismiss the claims 7 against it. For the reasons stated above, the survival claims are dismissed from this case 8 for lack of standing. Therefore, the sole remaining claims against CHP are the § 1983 9 claim for right to association and wrongful death. CHP argues that Plaintiffs fail to state a 10 claim under § 1983 because they fail to identify times where Decedent would have 11 interactions with CHP staff or that CHP was even aware of Decedent and his condition. 12 CHP is described in the SAC as a “third-party contractor to the San Diego County 13 Sheriff’s Department and employed, supervised, and/or trained Defendant Medical 14 Provider Does 1-10. [SAC at ¶ 36]. The Doe Medical Providers are described as “all 15 County employees, agents, or contractors working within the Sheriff’s Department 16 Medical Services Division who were responsible for [Decedent’s] medical care, including 17 screening, follow-up assessment, and referrals for further treatment, whether or not they 18 actually provided [Decedent] with any medical care.” [SAC at ¶ 32]. 19 To date, Plaintiffs have not identified said Does. While Plaintiffs may refer to 20 unknown defendants as “Does” at this stage, they must nevertheless “allege specific facts 21 showing how each particular doe defendant violated [their] rights.” Keavney v. Cnty. of 22 San Diego, No. 3:19-cv-01947-AJB-BGS, 2020 WL 4192286, at *4 (S.D. Cal. July 21, 23 2020) (internal citations omitted); see Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1998) 24 (a plaintiff must “set forth specific facts” as to each individual defendant’s wrongdoing). 25 Indeed, the SAC does not indicate where a CHP staff member would be involved in 26

27 6 As previously described above, Plaintiffs fail to state a claim of deliberate indifference as to Samonte 28 1 conscience shocking levels of deliberate indifference to assert a right to association § 1983 2 claim. While the SAC includes generalized statements that Doe Medical Providers 1-10 3 should have known of Decedent’s medical condition and failed to take action, it does not 4 state whether a Doe Medical Provider was present at the time of Defendant Anosike’s 5 wellness check or during the three days after the court-appointed psychiatrist referred 6 Decedent be placed in a hospital and given medication involuntarily. 7 While the Court can acknowledge that many of the facts of the case will not be 8 revealed until discovery, the present state of the complaint is not pled with particularity 9 against the Doe Medical Providers to hold CHP liable for Plaintiffs’ right to association 10 and wrongful death causes of action. Accordingly, CHP’s motion to dismiss is granted. 11 V. CONCLUSION 12 For the reasons stated above, the Court hereby ORDERS: 13 a. Plaintiffs’ motion for substitution is DENIED. All survival claims are 14 DISMISSED WITHOUT PREJUDICE to being re-filed, in a new action, 15 by the assigned administrator of the Estate. The Clerk of Court shall update 16 the docket to remove the Estate as a Plaintiff. 17 b. The County Defendants’ motion to dismiss as it pertains to the sole remaining 18 § 1983 right to familial association claim is DENIED-IN-PART AND 19 GRANTED-IN-PART. 20 i. The motion to dismiss as to Ben Samonte and May Ng is GRANTED 21 WITH LEAVE TO AMEND to assert how each Defendant engaged 22 in conscience-shocking activity to give rise to a familial association 23 claim. 24 ii. The motion to dismiss Christina Anosike is DENIED. 25 iii. The motion to dismiss the Deputy Defendants is DENIED. 26 iv. The motion to dismiss the Supervisor Defendants is DENIED. 27 v. The motion to dismiss the Monell claim against the County is 28 DENIED. 1 c. The County Defendants’ motion to dismiss as it pertains to the wrongful death 2 claim is DENIED. 3 d. CHP’s motion to dismiss is GRANTED WITH LEAVE TO AMEND to 4 assert how each Doe Medical Provider was personally involved in the 5 circumstances leading to Decedent’s death and arising to conscience shocking 6 levels. 7 || Plaintiffs shall have until September 6, 2024 to either file a third amended complaint or 8 they will proceed on the SAC in accordance with this Order. 9 10 It is so ORDERED. 11 ||Dated: August 21, 2024 € 12 Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28