1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEXIS ANN BARNABA, as guardian Case No.: 23-cv-01622-AJB-SBC ad litem for minor child and successor-in- 12 interest A.N.Y.; and YVETTE YOUNG, ORDER GRANTING IN PART AND 13 DENYING IN PART DEFENDANT’S Plaintiffs, MOTION TO DISMISS PLAINTIFFS’ 14

FIRST AMENDED COMPLAINT

v. 15 COUNTY OF SAN DIEGO and DOES 1 (Doc. No. 19) 16 through 10, inclusive, 17 Defendant.

18 Presently before the Court is Defendant County of San Diego’s motion to dismiss 19 Plaintiffs Alexis Ann Barnaba, as guardian ad litem for minor child and successor-in- 20 21 interest A.N.Y., and Yvette Young’s (collectively, “Plaintiffs”) First Amended Complaint 22 (“FAC”), pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 19.) The motion 23 is fully briefed, (Doc. Nos. 19, 21, and 22), and pursuant to Civil Local Rule 7.1.d.1, the 24 Court finds the instant matter suitable for determination on the papers and without oral 25 argument. For the reasons stated herein, the Court GRANTS IN PART and DENIES IN 26 PART the County’s motion to dismiss Plaintiffs’ FAC. 27 /// 28 /// 1 I. BACKGROUND 2 The following allegations are accepted as true for the purposes of this Fed. R. Civ. 3 P. 12(b)(6) Motion. This action arises out of the death of Chaz Guy Young-Villasenor 4 (“Decedent”) while incarcerated as a pretrial detainee at the San Diego County Central Jail. 5 (FAC, Doc. No. 18, ¶ 7.) There, on May 5, 2022, Decedent died of “an overdose of . . . 6 methamphetamine and/or fentanyl[.]” (Id. ¶ 27.) 7 Plaintiffs allege staff at Central Jail knew Decedent was “arrested for . . . possession 8 of illicit narcotic drugs, knowing that he was a frequent illicit narcotic drug user and/or 9 addict[.]” (Id. ¶ 20.) After ingesting “dangerous narcotic drugs[,]” Decedent “went into 10 serious and obvious medical extremis” where he “collapsed in his jail cell . . . squirm[ed] 11 and writhe[d] on his jail cell floor for several hours . . . and ultimately died.” (Id. ¶ 27.) 12 Plaintiffs now bring this case individually and as Decedent’s successor-in-interest 13 against: (1) the County; (2) Does 1–6 (whom Plaintiffs allege are “sworn peace officers 14 and/or deputy sheriffs and/or Custodial Officers and/or Special Officers and/or police 15 officers and/or supervisors and/or investigators . . . and/or Sheriff’s Aids and/or Nurses 16 and/or Doctors and/or other health officials and/or dispatchers and/or some other public 17 officers, officials or employees of defendant COUNTY and/or some other public entity”); 18 and (3) Does 7–10 (whom Plaintiffs allege “are supervisors and policy-making officials, 19 including the Sheriff of the County of San Diego, the Undersheriff of San Diego County, 20 the Sheriff’s Assistant Sheriffs, Commanders, Captains, Lieutenants, Sergeants, Detectives 21 and/or other Supervisory personnel employed by COUNTY and/or the County Executive 22 Officer and/or Members of the Board of Supervisors of San Diego County, and/or Doctors 23 and/or Nurses and/or other County Health Personnel / Officers / Officials and other County 24 Officers / Officials”). (Id. ¶¶ 8–10.) 25 Plaintiffs present four factual theories about Defendants’ involvement in Decedent’s 26 death: (1) Decedent was “sold or otherwise provided with dangerous narcotic drugs by 27 DOES” while in-custody and confined as a Pretrial Detainee, (id. ¶ 19); (2) Decedent was 28 provided such drugs by “inmates” with “DOES 1 through 3 . . . knowing that said inmates 1 at the jail were providing said dangerous narcotic drugs to other inmates at jail, including” 2 Decedent, and failed to stop them despite the “opportunity,” (id. ¶ 20); (3) Decedent was 3 provided drugs by inmates because Does 1 through 3 were paid by inmates at County Jail 4 to “permit them to sell and distribute said dangerous narcotic drugs,” (id. ¶ 21); and 5 (4) Decedent was provided drugs by inmates because Does 1 through 3 were “paid by 6 persons who were not inmates” at County Jail to permit said inmates to “sell and distribute 7 said dangerous narcotic drugs[,]” (id. ¶ 22). 8 Plaintiffs further allege Does 7 through 10 have a “longstanding custom and practice 9 of condoning and/or otherwise failing to prevent its deputy sheriffs [and] . . . other jail 10 personnel from bringing dangerous narcotic drugs” into San Diego County Jails. (Id. 11 ¶ 13(a).) Does 7 through 10 also allegedly fail to train its officers on “how and when to 12 provide medical care to Jail inmates [. . .]” and “how to recognize when inmates are 13 suffering from severe medical distress,” including drug overdoses. (Id. ¶ 13(b)–(c).) Does 14 7 through 10 also allegedly have a “longstanding custom and practice of failing to provide 15 medical care to jail Inmates” at San Diego County jails when inmates “appear to be in 16 serious/acute medical distress,” including drug overdoses. (Id. ¶ 13(d).) Plaintiffs further 17 allege Does 7 through 10 have a “longstanding custom and practice of failing to discipline 18 and/or train its deputy sheriffs [and] . . . other jail personnel, for failing to provide medical 19 care to jail Inmates at the San Diego County Jails,” including inmates “who appear to be 20 in serious/acute medical distress,” including drug overdoses. (Id. ¶ 13(e).) 21 Under any of the above theories, Plaintiffs allege Does 1 through 6 knew of 22 Decedent’s need for medical assistance after his ingestion of drugs and were “deliberately 23 indifferent” and “disregarded it by failing to take reasonable measures to address it.” (Id. 24 ¶ 25.) As a result, Decedent suffered “tremendous physical, mental and emotion pain [. . .] 25 for several hours, until he ultimately died[.]” (Id. ¶ 27.) 26 Based on these allegations, Plaintiffs bring nine causes of action against the County 27 and Doe Defendants 1–10. (See generally id.) The County moves to dismiss all of 28 1 Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6). (See generally Doc. No. 2 19.) 3 II. LEGAL STANDARD 4 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 5 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 6 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 7 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of a cognizable 8 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 9 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). To 10 defeat a motion to dismiss, a complaint must contain “enough facts to state a claim to relief 11 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 12 However, “some threshold of plausibility must be crossed at the outset” before a case can 13 move forward. Id. at 588 (internal quotations and alterations omitted). 14 Notwithstanding this deference, the reviewing court need not accept legal 15 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 16 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated 17 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 18 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a court 19 should assume their veracity and then determine whether they plausibly give rise to an 20 entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 21 first amended complaint, accepting all factual allegations as true, and drawing all 22 reasonable inferences in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 23 895 (9th Cir. 2002). “In sum, for a complaint to survive a motion to dismiss, the non- 24 conclusory factual content, and reasonable inferences from that content, must be plausibly 25 suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 26 962, 969 (9th Cir. 2009) (quotations and citation omitted). 27 /// 28 /// 1 III. DISCUSSION 2 A. Section 1983 Claims – Fourteenth Amendment 3 Plaintiffs’ first five causes of action are 42 U.S.C. section 1983 claims brought under 4 the Fourteenth Amendment. (FAC ¶¶ 17–106.) As an initial matter, the County argues it is 5 not liable for private crimes under Section 1983. (Doc. No. 19-1 at 11–12.) Stating that 6 “[p]roviding narcotics provides no conceivable governmental purpose regardless of who 7 provides them,” the County argues that such drug-dealing actions as alleged in the FAC 8 are not committed under the color of law, as is required by Section 1983 liability. (Id.) 9 Citing Van Ort v. Stanewich, 92 F.3d 831 (9th Cir. 1996), the County compares the 10 allegations in the FAC against Does to the actions of an off-duty Sheriff’s Deputy in Van 11 Ort who forcibly entered and robbed a private entrance which he had lawfully searched 12 while on-duty earlier. (Id. at 11 (citing Van Ort, 92 F.3d at 838).) Plaintiffs distinguish the 13 present matter from Van Ort, noting that a “public employee acts under color of state law 14 while acting in his official capacity or while exercising his responsibilities pursuant to state 15 law.” (Doc. No. 21 at 14 (quoting Paeste v. Gov’t of Guam, 798 F.3d 1228, 1238 (9th Cir. 16 2015)).) 17 In the present matter, the actions alleged against Does are distinguishable from those 18 in Van Ort in that all allegations made in the FAC were actions within the San Diego 19 County Jail and were not outside the scope of “official capacity or while exercising his 20 responsibilities pursuant to state law.” Paeste, 789 F.3d at 1238. Indeed, Plaintiffs plead 21 that Does 1 through 3 “sold or otherwise provided dangerous narcotic drugs . . . including 22 methamphetamine and fentanyl” while Decedent “was still in-custody and still confined as 23 a Pretrial Detainee at the San Diego County Jail[.]” (FAC ¶ 19.) Therefore, the fact that the 24 Does’ alleged actions are criminal in nature (either selling or facilitating the sale of illicit 25 narcotics) does not necessarily preclude liability under Section 1983 because such actions 26 were allegedly taken while Does were acting in their official capacity as employees/agents 27 of the County. 28 /// 1 1. Dangerous Conditions of Confinement (Claim 1) 2 The elements of a pretrial detainee’s Fourteenth Amendment failure-to-protect claim 3 against an individual officer are: 4 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 5

6 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 7

8 (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have 9 appreciated the high degree of risk involved—making the consequences of the 10 defendant’s conduct obvious; and

11 (4) By not taking such measures, the defendant caused the plaintiff’s injuries. 12 13 Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc). “With 14 respect to the third element, the defendant’s conduct must be objectively unreasonable, a 15 test that will necessarily ‘turn[] on the facts and circumstances of each particular case.’” 16 Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015), and Graham v. Connor, 17 490 U.S. 386, 396 (1989)). This test is often applied to a pretrial detainee’s medical care 18 claim under the due process clause of the Fourteenth Amendment. Gordon v. Cnty. of 19 Orange, 888 F.3d 1118, 1125 (9th Cir. 2018), cert. denied sub nom. Cnty. of Orange, Cal. 20 v. Gordon, 586 U.S. 1069 (2019). 21 Here, Plaintiffs allege Decedent ingested methamphetamine and fentanyl he 22 obtained while incarcerated at San Diego County Jail either directly from Does or with 23 their knowledge. (FAC ¶¶ 19–23.) Does allegedly did so “all while knowing that 24 [Decedent] had been arrested for . . . possession of illicit narcotic drugs, . . . knowing that 25 if offered or provided with access to dangerous and often deadly narcotic drugs . . . 26 [Decedent] would take such illicit narcotic drugs[.]” (Id. ¶¶ 22–23.) Subsequently, Does 27 allegedly conducted jail cell safety checks where they saw Decedent collapsed in his jail 28 cell and writing on his jail cell floor for several hours, in obvious severe medical distress. 1 (Id. ¶ 27.) Due to this inaction, the FAC concludes Decedent suffered severe pre-death pain 2 and suffering, mental and emotional injuries, and other general and special damages, as 3 well as his death on May 5, 2022. (Id. ¶ 29.) Plaintiffs allege these “conditions of 4 confinement . . . constitutes conduct by defendants DOES 1 through 6, inclusive, that was 5 done maliciously and in reckless disregard” of Decedent’s constitutional rights. (Id. ¶ 31.) 6 The County first argues Plaintiffs’ claim lacks sufficient facts “to pinpoint any 7 specific event or alleged wrongdoer[,]” thereby failing to fairly notify the County of the 8 factual claims against it.” (Doc. No. 19-1 at 12.) Specifically, the County asserts that 9 “without the barest factual allegations connecting an unnamed person to a specific event, 10 the FAC fails to provide fair notice.” (Id.) Plaintiffs respond that the facts alleged in the 11 FAC are sufficient to state a Fourteenth Amendment claim for failure to protect because 12 they meet all four of the elements outlined in Castro, 833 F.3d 1060. (Doc. No. 21 at 12– 13 13.) 14 The Court finds the Complaint sufficiently alleges that the County and Does engaged 15 in specific acts that failed to protect Decedent from a dangerous condition of confinement. 16 See Est. of Escobar v. United States, No. 20-cv-2454-L-KSC, 2022 WL 3209380, at *5–6 17 (S.D. Cal. Aug. 8, 2022). These “allegations are sufficient for purposes of the present 18 motion to put the parties on notice, and for parties[] to undertake [an] investigation to 19 determine who engaged in the conduct alleged, and when it occurred, if at all.” Id. (citing 20 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). Indeed, the FAC alleges Does 1 21 through 6 failed to take reasonable measures to address the distribution of narcotic drugs, 22 whether by Does themselves or other inmates. (FAC ¶¶ 19–22, 25.) Moreover, while the 23 County argues the FAC fails to provide fair notice because Plaintiffs connect the factual 24 allegations to “an unnamed person,” this issue was addressed in the Court’s previous Order 25 on the County’s motion to dismiss Plaintiffs’ original Complaint. There, this Court found 26 “the Complaint sufficiently alleges that Defendant County and Does engaged in specific 27 acts that impacted Decedent.” (Doc. No. 17 at 4.) 28 Accordingly, the Court DENIES the County’s motion to dismiss Plaintiffs’ first 1 claim. 2 2. Denial of Medical Care (Claim 2) 3 Claims for denial of medical care for individuals injured in police custody are 4 analyzed under the Fourteenth Amendment. Under the Fourteenth Amendment, Plaintiffs 5 must establish that the officers acted with “deliberate indifference,” and Plaintiffs must 6 establish the four Castro elements above in order to show deliberate indifference in this 7 context. See Gordon, 888 F.3d at 1124–25. 8 Plaintiffs assert, in addition to the facts stated above, that on May 5, 2022, after 9 Decedent ingested methamphetamine and fentanyl, Doe Defendants “did their jail cell 10 safety checks at the jail, and saw . . . decedent . . . collapse and/or collapsed in his jail cell, 11 in obvious severe medical distress from overdosing on the methamphetamine and fentanyl 12 distributed to” Decedent. (FAC ¶ 40.) Does thus knew Decedent “faced a substantial risk 13 of suffering serious and severe medical harm, as well as facing a serious medical need[.]” 14 (Id. ¶ 41.) Moreover, Does watched Decedent “collapse and/or collapsed in his jail cell, 15 and watched . . . [him] writhe on his jail cell floor for several hours, in obvious acute severe 16 medical distress, to the point of his obviously being in medical extremis.” (Id. ¶ 42.) As a 17 result, Decedent suffered from an overdose and “suffer[ed] in tremendous physical, mental 18 and emotional pain, suffering and distress for several hours, until he ultimately died on 19 May 5, 2022.” (Id. ¶ 43.) 20 The County argues Plaintiffs’ second claim should be dismissed because the 21 “allegations fail to allege enough descriptive facts to identify a specific event, depriving 22 the County of fair notice.” (Doc. No. 19-1 at 14.) The County also asserts this second claim 23 is duplicative of the first, and should thus be dismissed. (Id.) Plaintiffs respond that the 24 facts alleged meet the Castro standard for a pretrial detainee’s medical care claim and, 25 thus, the County’s motion should be denied. (Doc. No. 21 at 15–16.) 26 The County relies on J.K.J. v. City of San Diego, No.: 19-CV-2123-CAB-RBB, 2020 27 WL 738178 (S.D. Cal. Feb. 13, 2020), in which the court analyzed the Castro elements 28 under the plaintiff’s claim for unreasonable search and seizure – denial of medical care. 1 2020 WL 738178, at *6–7. The court ultimately dismissed this claim under the third Castro 2 factor because the complaint did not sufficiently allege a serious medical need based on 3 what the officers knew at the time. J.K.J., 2020 WL 738178, at *7. However, the County 4 makes no arguments as to the third factor here. (See Doc. No. 19-1 at 13–14.) 5 The Court finds the FAC sufficiently alleges deliberate indifference. Plaintiffs allege 6 Does made several decisions regarding Decedent’s confinement conditions by either 7 selling or providing Decedent with narcotics, or otherwise failing to prevent other inmates 8 from selling or distributing narcotics. (FAC ¶¶ 19–22.) They then ignored Decedent during 9 their jail safety checks, despite seeing Decedent collapsed in his jail cell and writhing for 10 several hours in acute medical distress. (Id. ¶¶ 40, 42.) By allegedly leaving Decedent in 11 the cell for hours while visibly suffering from an overdose that a reasonable person would 12 have known required medical treatment, (id. ¶ 45), Plaintiffs argue Does did not take 13 reasonable measures to abate that risk. Plaintiffs allege Does’ failure to provide medical 14 care resulted in Decedent’s pain and suffering, and ultimately his death. (Id. ¶ 46.) 15 The Court further finds the second claim is not duplicative of the first; Does 16 allegedly failed to provide medical care to Decedent while he was in obvious medical 17 distress, resulting in his death. This differs from Plaintiffs’ first claim that Does allegedly 18 created dangerous conditions of confinement by providing illicit narcotics or allowing 19 other inmates to provide narcotics to Decedent. 20 Accordingly, the Court DENIES the County’s motion to dismiss the second cause 21 of action. 22 3. State Created Danger (Claim 3) 23 Next, the County argues that “[g]overnmental failure to protect an individual against 24 private violence ordinarily does not violate the guarantee of due process, but it can do so 25 when government action ‘affirmatively place[s] the plaintiff in a position of danger[.]’” 26 (Doc. No. 19-1 at 15.) The County argues that “jailing the Decedent put him in no new 27 danger of overdosing on narcotics in any other place” because Decedent was a narcotics 28 user. (Id. at 16.) Additionally, the County argues that Plaintiffs’ third claim for state created 1 danger should be stricken as duplicative of the first claim. (Id. at 15.) Plaintiffs respond 2 that the cases cited by the County do not support their argument. (Doc. No. 21 at 19.) 3 Further, Plaintiffs argue that it is “pure conjecture from Defendants” that Decedent faced 4 the risk of overdose from fentanyl that he would not have otherwise faced. (Id.) 5 To prevail on a state-created danger claim, “the plaintiff must show that the state 6 official[s] participated in creating a dangerous condition, and acted with deliberate 7 indifference to the known or obvious danger in subjecting the plaintiff to it.” See L.W. v. 8 Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). Plaintiffs allege that Does provided illicit 9 narcotics (or allowed illicit narcotics to be provided) to Decedent, which he ingested and 10 subsequently overdosed, causing his death. (FAC ¶¶ 52–56, 58.) 11 The Court finds Plaintiffs’ third claim is duplicative of their first and second claims, 12 as this claim asserts Does created a dangerous condition by either providing drugs to 13 Decedent or failing to prevent other inmates from providing said drugs, and were 14 deliberately indifferent to Decedent’s serious medical needs. (See FAC ¶¶ 52–56, 59–64.) 15 Accordingly, Plaintiffs’ third claim is DISMISSED WITH LEAVE TO AMEND. 16 4. Interference with Familial Relationship (Claim 4) 17 Plaintiffs’ Fourth Cause of Action is for interference with a familial relationship 18 under the Fourteenth Amendment based on Decedent’s relationship with both Decedent’s 19 minor child, A.N.Y., and Decedent’s mother, Young. (FAC ¶¶ 68–87.) The County argues 20 Plaintiffs lack standing to bring a claim for loss of familial association because Plaintiffs 21 have failed to allege sufficient facts to support a constitutionally protected relationship. 22 (Doc. No. 19-1 at 17.) Plaintiffs argue that relationships between parents and children are 23 of a special class where the Court would “presuppose deep attachments and commitments.” 24 (Doc. No. 21 at 17 (quoting Mann v. City of Sacramento, 748 Fed. App’x 112, 112 (9th 25 Cir. 2018)).) 26 “A decedent’s parents and children generally have the right to assert substantive due 27 process claims under the Fourteenth Amendment.” Wheeler v. City of Santa Clara, 894 28 F.3d 1046, 1057 (9th Cir. 2018) (citing Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1229– 1 30 (9th Cir. 2013), and Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 369–70 2 (9th Cir. 1998)). “In the context of parent-child relationships specifically, the Supreme 3 Court has emphasized that the rights of parents are a counterpart of the responsibilities they 4 have assumed: ‘the mere existence of a biological link does not merit equivalent 5 constitutional protection.’” Id. at 1058 (quoting Lehr v. Robertson, 436 U.S. 248, 256–58 6 (1983)). Rather, to merit constitutional protection, “even biological parents must maintain 7 consistent involvement in a child’s life and participation in child-rearing activities[.]” Id. 8 Here, Plaintiffs A.N.Y. and Young do not adequately plead a right to familial 9 association. The FAC alleges only that minor plaintiff A.N.Y. is the successor-in-interest 10 to his father, Decedent, and that Plaintiff Young is the natural and legal mother of 11 Decedent. (FAC ¶¶ 5, 6.) Courts have found this insufficient to plead a right of familial 12 association. See Est. of Chivrell v. City of Arcata, 623 F. Supp. 3d 1032, 1044 (N.D. Cal. 13 2022) (“But the mere label of ‘spouse’ or ‘biological father’ alone is insufficient to plead 14 a right of familial association.”); Est. of Mendez v. City of Ceres, 390 F. Supp. 3d 1189, 15 1215 (E.D. Cal. 2019) (finding plaintiffs had insufficiently pled standing to bring familial 16 association claims for decedent’s father, brothers, aunt, grandmother, and grandfather 17 where complaint only used perfunctory language that “he or she ‘cohabitated’ with 18 [decedent] and ‘shared a close relationship and special bond’ with him, and that the 19 relationship ‘presupposed deep attachments, commitments, and distinctively personal 20 aspects of their lives’”); Sandoval ex rel. B.U. v. City of National City, No.: 22CV1657- 21 GPC(AGS), 2023 WL 3295590, at *7 (S.D. Cal. May 5, 2023) (dismissing Fourteenth 22 Amendment claim based on familial relationship where “the FAC only alleges that B.U. is 23 the decedent’s child and provides no other facts as to the decedent’s parental role in B.U.’s 24 life”). 25 Thus, the Court GRANTS the County’s motion to dismiss Plaintiff’s Fourth Cause 26 of Action for interference with a familial relationship WITH LEAVE TO AMEND. 27 5. Deprivation of Life Without Due Process of Law (Claim 5) 28 Next, the County argues Plaintiffs’ fifth claim includes conclusory allegations that 1 Does acted with deliberate indifference, resulting in Decedent’s death. (Doc. No. 19-1 at 2 23.) Plaintiffs respond they have pled their claim with sufficient specificity in the FAC. 3 (Doc. 21 at 20.) Both parties agree the “deliberate indifference” standard must be met for 4 this claim. (Doc. No. 19-1 at 23; Doc. No. 21 at 20.) 5 To state a substantive due process claim based on a state-created danger, a plaintiff 6 must establish three elements: (1) “that the officers’ affirmative actions created or exposed 7 her to an actual, particularized danger that she would not otherwise have faced”; (2) “that 8 the injury she suffered was foreseeable”; and (3) “that the officers were deliberately 9 indifferent to the known danger.” Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 10 2019). Deliberate indifference requires that the official “knows that something is going to 11 happen but ignores the risk and exposes [the plaintiff] to it.” Patel v. Kent School Dist., 12 648 F.3d 965, 974 (9th Cir. 2011) (quoting L.W., 92 F.3d at 900). 13 Plaintiffs’ FAC alleges Does acted with deliberate indifference by facilitating the 14 possession of dangerous illicit narcotics to Decedent, “knowing that [he] had been arrested 15 for, inter alia, possession of illicit narcotic drugs, that he was a frequent drug user and/or 16 addict, and knowing that if offered or provided with access to dangerous and often deadly 17 illicit narcotic drugs [. . .] that [he] would take such illicit narcotic drugs, placing him in 18 great danger of [death by overdose].” (FAC ¶ 99.) Further, Plaintiffs allege Decedent 19 “faced a substantial risk of serious harm as well as facing a serious medical need” due to 20 the alleged actions of Does. (Id. ¶ 101.) Does allegedly “knew of and disregarded [this risk] 21 by failing to take reasonable measures to address it.” (Id. at ¶ 102.) Indeed, as discussed 22 above, Plaintiffs plead that Does “stood-by and watched” while Decedent “collapsed in his 23 jail cell while squirming and writhing on his jail cell floor for several hours and took no 24 actions to attend to [Decedent’s] obvious need for immediate medical care or to 25 get/summon[] immediate medical care[.]” (Id. ¶ 97; see id. ¶ 103.) 26 The Court finds Plaintiffs allege facts sufficient to demonstrate deliberate 27 indifference by Does. Thus, the Court DENIES the County’s motion to dismiss the Fifth 28 Cause of Action. 1 B. Monell Claim (Claim 6) 2 Cities, counties, and other local government entities are subject to claims under 3 Section 1983. Monell v. Dept of Social Serv. of the City of New York, 436 U.S. 658 (1978). 4 While municipalities, their agencies, and their supervisory personnel cannot be held liable 5 under Section 1983 on any theory of respondeat superior or vicarious liability, they can be 6 held liable for deprivations of constitutional rights resulting from their formal policies or 7 customs. Id. at 691–93. Liability only attaches where the municipality itself causes the 8 constitutional violation through “execution of a government’s policy or custom, whether 9 made by its lawmakers or by those whose edicts or acts may fairly be said to represent 10 official policy[.]” Id. at 694. 11 Three separate theories of Monell liability may be alleged against a municipality: 12 (1) an unconstitutional policy, custom, or practice; (2) inadequate training; and/or 13 (3) ratification. See Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 802–03 (9th Cir. 14 2018). “First, a local government may be liable if ‘execution of a government’s policy or 15 custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said 16 to represent official policy, inflict[ed] the injury.’” Id. (quoting Monell, 436 U.S. at 694). 17 “Second, a local government can fail to train employees in a manner that amounts to 18 ‘deliberate indifference’ to a constitutional right, such that ‘the need for more or different 19 training is so obvious, and the inadequacy so likely to result in the violation of 20 constitutional rights, that the policymakers of the city can reasonably be said to have been 21 deliberately indifferent to the need.’” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 22 309 (1989)). “Third, a local government may be held liable if ‘the individual who 23 committed the constitutional tort was an official with final policy-making authority or such 24 an official ratified a subordinate’s unconstitutional decision or action and the basis for it.’” 25 Id. (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2018)). 26 Plaintiffs allege Monell liability under the theories of: (1) policy created by 27 longstanding custom and practice, and (2) failure to train jail personnel. (FAC ¶¶ 107–53.) 28 /// 1 1. Longstanding Custom and Practice 2 The County asserts Plaintiffs’ sixth claim “alleges that the identities of Doe 3 defendants including the ‘Sheriff of the County of San Diego’ and the ‘Members of the 4 Board of Supervisors of San Diego County’ are ‘presently unknown to plaintiff.’ Such 5 allegations strain the limits of credibility.” (Doc. No. 19-1 at 24.) The County asserts these 6 names are widely publicized and are commonly available to anyone. (Id.) Further, the 7 County argues Plaintiffs’ claim against Does 7 through 10 are duplicative of their 8 allegations against the County and is therefore unnecessary to municipal liability. (Id. at 9 25.) Finally, the County contends Plaintiffs’ FAC fails to contain sufficient allegations to 10 support their claim. (Id.) 11 To establish liability on the part of governmental entities based on an 12 unconstitutional policy or custom, a plaintiff must allege: “(1) that he possessed a 13 constitutional right of which he was deprived; (2) that the municipality had a policy; 14 (3) that this policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional 15 right; and (4) that the policy is the ‘moving force behind the constitutional violation.’” 16 Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton, 489 U.S. at 17 389−90). In addition, a local governmental entity may be liable if it has a policy of inaction 18 and such inaction amounts to a failure to protect constitutional rights. Id.; see City of 19 Canton, 489 U.S. at 388; see also Monell, 436 U.S. at 690−91. The custom or policy of 20 inaction, however, must be the result of a “conscious,” City of Canton, 489 U.S. at 393, or 21 “deliberate choice to follow a course of action [that is] made from among various 22 alternatives by the official or officials responsible for establishing final policy with respect 23 to the subject matter in question[,]” Oviatt, 954 F.2d at 1477 (quoting Pembaur v. City of 24 Cincinnati, 475 U.S. 469, 483 (1986)). See Sandoval, 2023 WL 3295590, at *9. 25 Absent a formal governmental policy, the plaintiff must show a longstanding 26 practice or custom which constitutes the “standard operating procedure” of the local 27 government entity. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quoting 28 1 Pembaur, 475 U.S. at 485). The practice must be so “persistent and widespread” that it 2 constitutes a “permanent and well settled” custom or usage. Monell, 436 U.S. at 691. 3 Plaintiffs have not identified a formal policy of the County but allege a practice or 4 custom. (See FAC ¶¶ 132–49.) To allege a longstanding practice or custom which 5 constitutes the standard operating procedure of a local government entity, Plaintiffs must 6 allege more than a single, isolated incident. See Meehan v. Los Angeles Cnty., 856 F.2d 7 102, 107 (9th Cir. 1988) (finding two incidents were insufficient to establish Monell 8 custom); Segura v. City of La Mesa, 647 F. Supp. 3d 926, 943 (S.D. Cal. 2022) (granting 9 motion to dismiss Monell claim based on single instance of alleged unconstitutional 10 conduct); Lunn v. City of Los Angeles, 629 F. Supp. 3d 1007, 1016 (C.D. Cal. 2022) 11 (granting motion to dismiss Monell claim based on policy, practice, or custom because the 12 complaint only described one incident of unconstitutional activity which is not sufficient 13 to impose liability under Monell). 14 The FAC alleges Decedent was subject to “unconstitutional actions” by the creation 15 of “policies, practices, customs and/or usages of the County of San Diego” for 16 (1) “condoning and/or otherwise failing to prevent its [officers] from bringing dangerous 17 narcotic drugs [] into the San Diego County Jails [] for sales and distribution to inmates at 18 those jail facilities[;]” (2) “failing to provide medical care to jail Inmates[;]” and (3) “failing 19 to discipline officers who do not provide medical care to inmates[.]” (FAC ¶ 13(a), (d), 20 (e).) Does’ alleged actions placed Decedent “in a position of an actual, particularized 21 danger by creating or exposing [Decedent] to a danger that he would not have otherwise 22 faced” by either: (1) directly providing Decedent with illicit narcotics while in custody, or 23 (2) indirectly providing Decedent illicit narcotics while in custody by permitting 24 transactions of illegal narcotics by inmates. (Id. ¶¶ 110–11.) Plaintiffs allege that such 25 actions of Does were done knowing that Decedent was arrested for possession of illicit 26 narcotic drugs, was a frequent user of such substances, and that Decedent was “in great 27 danger of dying from using / taking such illicit narcotic drugs.” (Id. ¶ 111.) Plaintiffs allege 28 Does 7 through 10, inclusive, are supervisors and policy-making officials employed by the 1 County “whose actions and/or omissions proximately caused some of all of the tortious 2 actions complained of in this action[.]” (Id. ¶ 132.) 3 Moreover, Plaintiffs’ FAC alleges that Does 7 through 10 “are final policymaking 4 officials for the San Diego County Sheriff’s Department and the County of San Diego” and 5 “formulat[ed] and created, and permitted and caused the creation of those policies, customs 6 and practices of the San Diego County Sheriff’s Department, including all jail policies.” 7 (FAC ¶¶ 133–34.) Plaintiffs further assert: 8 Said defendants have known for many years now that deputy sheriffs at the San Diego County Jails, sheriff’s aides at the San Diego County Jails, the 9 Correctional Officers and Deputy Sheriffs at the San Diego County Jails, and 10 other jail personnel at the San Diego County Jails, have sold and/or distributed, and/or otherwise facilitated the sale and/or distribution of, and/or 11 have otherwise condoned and/or permitted inmates to sell and/or distribute, 12 dangerous illicit and narcotic drugs, including methamphetamine, heroin and fentanyl, to inmates at the San Diego County Jails, including the San Diego 13 County Jail, Central Jail Facility. 14 15 (Id. ¶ 135.) Indeed, “many San Diego County Jail inmates have died from the ingestion of 16 such dangerous illicit and narcotic drugs.” (Id. ¶ 136.) “San Diego County Jail personnel, 17 DOES 7 through 10, inclusive, and their predecessors in office have covered-up the role of 18 San Diego County Jail personnel in the deaths of inmates who died from taking illicit and 19 dangerous drugs.” (Id. ¶ 137.) The FAC goes on to allege that various employees of the 20 County have been selling, distributing, or otherwise facilitating the sale of illicit narcotic 21 drugs to inmates in the San Diego County Jails, in turn creating a longstanding custom and 22 practice of San Diego County Jails personnel. (Id. ¶ 138.) The FAC then provides several 23 sources in support, including the California State Auditor’s February 2022 report which 24 details that between 2020 and 2021, there were 314 opioid overdoses in the San Diego 25 County Jails. (Id. ¶ 139 (citing San Diego County Sheriff’s Department: It Has Failed to 26 Adequately Prevent and Respond to the Deaths of Individuals in Its Custody, Auditor of 27 the State of California (Feb. 3, 2022) 28 (https://information.auditor.ca.gov/pdfs/reports/2021-109.pdf)); see also id. ¶¶ 140–41 1 (Analytica Consulting, 2022 San Diego County In-Custody Death Study, Citizens Law 2 Enforcement Review Board (April 2022) 3 (https://www.sandiegocounty.gov/content/dam/sdc/clerb/meetings/2022/Att.G- 4 CLERB%20In-Custody%20Death%20Study.pdf); id. ¶ 142 (detailing “significant 5 deficiencies in the Sheriff’s Department’s policies and procedures likely contributed to the 6 deaths of individuals in its custody); id. ¶ 143 (“On October 27, 2023, the County of San 7 Diego Citizens’ Law Enforcement Review Board Sustained the allegation that the San 8 Diego County Jail failed to prevent the death of a James Bousman, by adhering to its failed 9 policies that permitted fentanyl to be obtained by him, and that resulted in his drug overdose 10 and death.”). Further, Plaintiffs allege it is San Diego County Sheriff’s Department policy 11 to not screen its own jail deputy sheriffs and other custodial personnel for drugs when 12 entering the San Diego County Jail facilities, resulting in personnel bringing narcotics into 13 the jail facility. (Id. ¶ 144–46.) 14 Based on the above allegations, the Court first finds Plaintiffs’ claim against Does 7 15 through 10 are not duplicative of their allegations against the County. Indeed, Plaintiffs 16 allege Does 7 through 10 “are supervisors and policy-making officials,” including various 17 Sheriff’s Department employees, supervisory personnel employed by the County, 18 members of the Board of Supervisors, and other County officials. (Id. ¶ 10.) 19 Next, Plaintiffs list the Sheriff of the County of San Diego and the members of the 20 Board of Supervisors of the County of San Diego as “Does” and assert they are “presently 21 unknown to plaintiff.” (Id.) The County asserts the names of these Does are widely 22 publicized and are commonly available to anyone. (Doc. No. 19-1 at 24.) “It is permissible 23 to use Doe defendant designations to refer to defendants whose names are unknown to 24 plaintiff in the complaint.” Hatcher v. Ahern, No. C 07–5779 SI (pr), 2008 WL 683385, at 25 *1 (N.D. Cal. Mar. 12, 2008) (emphasis added). “Although the use of Doe defendants is 26 acceptable to withstand dismissal of a complaint at the initial review stage, using Doe 27 defendants creates its own problem: those persons cannot be served with process in this 28 action until they are identified by their real names.” Id. Because several of the Doe 1 Defendants are readily identifiable, the Court ORDERS Plaintiffs to file a timely amended 2 complaint naming these Doe Defendants. 3 Finally, while the County contends that comparisons of overdose death rates 4 between different jail systems “say[s] nothing about official governmental policy or 5 custom[,]” the Court finds this argument inappropriate at the motion to dismiss stage. The 6 Court ultimately finds Plaintiffs’ FAC alleges more than a single incident, including 7 Decedent’s death, in support of San Diego County’s alleged custom or practice. Thus, the 8 motion to dismiss this claim is DENIED. 9 2. Failure to Train 10 Courts permit Monell claims to proceed against municipalities under failure to 11 adequately train theories “[i]n limited circumstances, [where] a local government’s 12 decision not to train certain employees about their legal duty to avoid violating citizens’ 13 rights may rise to the level of an official government policy for purposes of § 1983.” Keith 14 v. City of San Diego, No. 22-cv-1226-MMA (DEB), 2023 WL 2347070, at *3 (S.D. Cal. 15 Mar. 3, 2023) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). In such cases, 16 plaintiffs are required to show the municipality’s allegedly inadequate training amounts to 17 “deliberate indifference”—which is “a stringent standard of fault, requiring proof that a 18 municipal actor disregarded a known or obvious consequence of his action.” Id. Because 19 there is no vicarious or respondeat superior liability for municipalities under Section 1983, 20 a Monell claim will only lie where policymakers were “on actual or constructive notice that 21 a particular omission in their training program causes . . . employees to violate citizens’ 22 constitutional rights.” Id. Thus, “[a] pattern of similar constitutional violations by untrained 23 employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of 24 failure to train.” Id. 25 However, in some “narrow” circumstances, “the unconstitutional consequences of 26 failing to train could be so patently obvious that a [municipality] could be liable under 27 § 1983 without proof of a pre-existing pattern of violations.” Connick, 563 U.S. at 64. Such 28 “narrow” circumstances exist when, “in light of the duties assigned to specific officers or 1 employees[,] the need for more or different training is so obvious, and the inadequacy so 2 likely to result in the violation of constitutional rights, that the policymakers of the city can 3 reasonably be said to have been deliberately indifferent to the need.” City of Canton, 489 4 U.S. at 390. Yet, courts are understandably hesitant to find such “narrow” circumstances, 5 because such theories often “collapse[] into respondeat superior liability”—which plainly 6 does not exist under Section 1983. Horton by Horton v. Cnty. of Santa Maria, 915 F.3d 7 592, 603 (9th Cir. 2019). 8 The FAC alleges Does 7–10 failed to train its officers “how and when to provide 9 medical care to jail [i]nmates” and “to immediately summon medical care for inmates who 10 are suffering from severe medical distress.” (FAC ¶ 148.) Does 7–10 allegedly failed to 11 train its officers “adequately on recognizing when jail inmates are suffering from severe 12 medical distress that requires immediate medical attention and care, and [. . .] to 13 immediately summon medical care for inmates who are suffering from severe medical 14 distress from drug overdoses[.]” (Id. ¶ 149.) Moreover, the Plaintiffs’ failure to train claim 15 is predicated upon the same reports as cited above. (See id. ¶¶ 139–46.) 16 Here, the factual allegations taken as true for the purposes of deciding this motion 17 point to specific prior incidents indicating a pattern of conduct representative of a failure 18 to train and/or a long-standing custom or practice within San Diego County Jail facilities 19 by Doe Defendants who have authority to implement policies that would allow for the 20 investigation of officers who may be selling drugs, or provide training to officers to respond 21 to inmates experiencing medical emergencies/drug overdoses. Accordingly, the Court 22 DENIES the County’s motion to dismiss the Sixth Cause of Action. 23 C. State Law Negligence Claims (Claims 7–9) 24 The FAC pleads Claims 7, 8, and 9 as distinct state law claims. Claim 7 is for 25 wrongful death under California Code of Civil Procedure § 377.60. To state a claim under 26 this statute, a plaintiff must allege facts showing that the defendant’s wrongful or negligent 27 conduct caused the decedent’s death. See Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 28 1256, 1263 (2006). “Its purpose is to compensate . . . heirs for the loss of companionship 1 and for other losses suffered as a result of a decedent’s death.” Id. Claim 8 is for negligence, 2 which requires allegations that the defendant breached a duty of care to the plaintiff and 3 thereby caused an injury. See Ladd v. Cnty. of San Mateo, 12 Cal. 4th 913, 917 (1996). 4 Claim 9 is styled as a failure to provide medical care claim under California Government 5 Code section 845.6 claim. However, all of these claims assert negligence against the 6 County and Does 1–10 for all of the same conduct outlined above. (See FAC ¶¶ 165–68, 7 188–93, 208–11.) As such, the Court addresses these claims together. 8 1. Standing 9 The FAC states “plaintiffs A.N.Y. and YOUNG suffered severe mental and 10 emotional distress, pain and suffering, and the loss of the love, comfort, society, 11 companionship and their Parent – Child relationship with [Decedent], as well funeral and 12 burial expenses, hospital and other special damages, including the financial and emotional 13 support that [Decedent] would have given to them[.]” (FAC ¶ 175.) 14 The County first argues the wrongful death claim is brought only by minor Plaintiff 15 A.N.Y. but the FAC then alleges losses and expenses incurred by Decedent’s mother, 16 Young. (Doc. No. 19-1 at 27.) Plaintiffs make no argument in response. (See generally 17 Doc. No. 21 at 27–31.) Moreover, even if Young had been included in this claim in the 18 FAC, Plaintiffs fail to plead Young was dependent on Decedent for the “necessaries of 19 life.” See Chavez v. Carpenter, 91 Cal. App. 4th 1433, 1446 (2001). Accordingly, the 20 County’s motion to dismiss the wrongful death claim as to Plaintiff Young is GRANTED 21 WITH LEAVE TO AMEND. 22 Next, the County asserts there is no allegation that A.N.Y. was Decedent’s 23 dependent for financial support. (Id. at 27–28.) Plaintiffs respond that under California 24 Code of Civil Procedure Section 377.60(a), A.N.Y. has standing as Decedent’s child. (Doc. 25 No. 21 at 30.) 26 “In California, wrongful death actions are statutory in origin and exist only so far 27 and in favor of such person as the legislative power may declare.” Ceja v. Rudolph & 28 Sletten, Inc., 56 Cal. 4th 1113, 1118 (2013) (internal quotation marks and citation omitted). 1 “The right to bring a wrongful death action is limited to those persons described in . . . 2 section 377.60” and is “strictly construed.” Soto v. BorgWarner Morse TEC Inc., 239 Cal. 3 App. 4th 165, 188 (2015) (citation omitted). “A plaintiff seeking to bring a wrongful death 4 claim bears the burden of pleading and proving his or her standing to do so.” Id. at 188 5 (citation omitted). 6 Section 377.60 provides, 7 A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the 8 decedent’s personal representative on their behalf: 9 (a) The decedent’s surviving spouse, domestic partner, children, and 10 issue of deceased children, or, if there is no surviving issue of the decedent, 11 the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the 12 parents of the decedent would be entitled to bring an action under this 13 subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were 14 the decedent’s parents. 15 (b)(1) Whether or not qualified under subdivision (a), if they were 16 dependent on the decedent, the putative spouse, children of the putative 17 spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased. 18

19 Cal. Civ. Proc. Code § 377.60. 20 Unlike § 377.60(b), § 377.60(a) does not require that a child be financially dependent 21 on the decedent. See Cal. Code Civ. P. § 377.60(a). Therefore, it is irrelevant whether 22 A.N.Y. depended on Decedent for financial support. Accordingly, the County’s motion to 23 dismiss on this ground is DENIED. 24 2. 12(b)(6) 25 Plaintiffs allege the County and Does breached their duty of care owed to Decedent 26 by (1) facilitating the possession of illicit narcotics, (2) failing to summon immediate 27 medical care, (3) negligently failing to competently investigate jail deaths, and 28 1 (4) negligently failing to train personnel to recognize when inmates are suffering from 2 extreme medical distress that requires immediate medical attention. (Id. ¶¶ 168–74, 189– 3 93.) 4 The County argues Plaintiffs’ wrongful death and negligence claims fail to state a 5 claim because they fail to adequately allege an underlying California law basis for liability 6 for Decedent’s death. (Doc. No. 19-1 at 28.) Specifically, the County argues “the FAC does 7 not allege an event involving an otherwise-identifiable ‘Doe’ with any factual specificity, 8 so it fails [to] plead a negligence claim against an individual County employee.” (Id. at 29.) 9 As an initial matter, Plaintiffs identify only one named defendant, Navarro, allegedly 10 involved with Decedent’s receipt of illicit narcotics while in custody. (FAC ¶ 185.) 11 However, Navarro is not named as a defendant, and is not otherwise identified in the FAC. 12 (See generally id.) 13 Section 377.60 of the California Code of Civil Procedure provides that certain 14 surviving persons (including parents) may file a civil suit against those responsible for a 15 decedent’s “wrongful or negligent” death. Patino v. Cnty. of Monterey, Case No. 22-cv- 16 01564-BLF, 2023 WL 375349, at *6 (N.D. Cal. Jan. 24, 2023) (citing Quiroz, 140 Cal. 17 App. 4th at 1263). Section 1714 of the California Civil Code is the “general tort 18 provision[]” in California setting forth that each person has “a legal duty to act reasonably 19 and with due care under the circumstances with respect to their own actions”—i.e., to not 20 act negligently. Summerfield v. City of Inglewood, 96 Cal. App. 5th 983, 999 (2023); 21 Shalghoun v. N. Los Angeles Cnty. Reg’l Ctr., Inc., 99 Cal. App. 5th 929, 944 (2024), as 22 modified on denial of reh’g (Feb. 22, 2024), review filed (Mar. 5, 2024). Section 820 of the 23 California Government Code clarifies that this general duty of care extends to public 24 employees “to the same extent as a private person.” And, under California Government 25 Code section 815.2, “a public entity is liable for injury proximately caused by an act or 26 omission of an employee of the public entity within the scope of his employment if the act 27 or omission would . . . have given rise to a cause of action against that employee or his 28 personal representative.” 1 However, California Civil Code section 1714 ’s general duty of care and California 2 Government Code section 815.2’s subsequent vicarious liability provisions are partially 3 modified by section 844.6 of the California Government Code, which states that public 4 entities are not liable for “injury to a prisoner.” California Government Code section 844.6 5 goes on to clarify that “[n]othing in this section exonerates a public employee from liability 6 for injury proximately caused by his negligent or wrongful act or omission.” Cal. Gov’t 7 Code § 844.6 (emphasis added). This provision is partially modified by section 845.6 of 8 the California Government Code, which states that “a public entity nor a public employee 9 is liable for injury proximately caused by the failure of the employee to furnish or obtain 10 medical care for a prisoner in his custody”—but that a “public employee, and the public 11 entity where the employee is acting within the scope of his employment, is liable if the 12 employee knows or has reason to know that the prisoner is in need of immediate medical 13 care and he fails to take reasonable action to summon such medical care.” Cal. Gov’t Code 14 § 845.6 (emphasis added). 15 Taken together, this California statutory scheme stands for the proposition that: 16 (1) public entities cannot be held liable for wrongfully or negligently injuring prisoners1 17 but public employees can be2; unless (2) the prisoner’s injury resulted from a failure to 18 furnish medical care (in which case, neither the public employee or public entity are 19 liable)3; except (3) when the public employee knew or had reason to know that the injured 20 prisoner was in need of immediate medical care and failed to take reasonable action to 21 summon such medical care (in which case, both the public employee and the public entity 22 are liable)4. 23 Accordingly, Claims 7, 8, and 9 must be DISMISSED WITH PREJUDICE against 24 the County with respect to: (a) the theory that Does either provided or failed to prevent 25

26 1 Cal. Gov. Code § 844.6. 27 2 Id.; Cal. Gov. Code § 820. 3 Cal. Gov. Code § 845.6. 28 1 inmates from providing Decedent with narcotics; (b) the related failure to 2 discipline/terminate jail staff theory; and (c) the failure to adequately train jail staff theory 3 because they attempt to hold the County liable for the allegedly wrongful and/or negligent 4 death of Decedent in violation of section 844.6 of the California Government Code. 5 Bousman v. Cnty. of San Diego, No.: 3:23-cv-1648-W-JLB, 2024 WL 1496220, at *11 6 (S.D. Cal. Apr. 5, 2024). However, Claims 7–9 proceed against the County, insofar as it 7 would be vicariously liable for Does 1–10’s alleged failure to reasonably summon 8 immediate medical care under California Government Code section 845.6. 9 Indeed, the FAC sufficiently states a claim for wrongful death under California Code 10 of Civil Procedure § 377.60, negligence under California Code of Civil Procedure § 1714, 11 and failure to summon immediate medical care under California Government Code 12 § 845.6. It alleges: Decedent was in the custody of the County at the time of his death, 13 (FAC ¶¶ 155–56, 179–80); County employees owed Decedent a duty of care (id. ¶ 189); 14 and Decedent was harmed while in the custody of the County by the use of dangerous 15 narcotic drugs (id. ¶¶ 171, 188). The FAC then alleges that County employees breached 16 their duty of care to Decedent by being “deliberately indifferent” and “took no actions” to 17 address Decedent’s “obvious need for immediate medical care[.]” (Id. ¶¶ 170, 174, 190.) 18 The FAC alleges the lack of medical care was “a proximate cause of the death of” 19 Decedent, and that this injury caused Plaintiff A.N.Y. to suffer “severe mental and 20 emotional distress, pain and suffering, and the loss of the love, comfort, society, 21 companionship and her Parent – Child relationship[.]” (Id. ¶¶ 194–95.) The Court finds 22 these allegations are sufficiently clear, specific and factual to state “a claim to relief that is 23 plausible on its face.” Twombly, 550 U.S. at 570. Accordingly, the motion to dismiss is 24 DENIED as to the negligence, wrongful death, and failure to summon immediate medical 25 care claims to the extent they are based on a failure to summon immediate medical care. 26 /// 27 /// 28 /// 1 |}IV. CONCLUSION 2 For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN 3 ||PART the County’s motion to dismiss. (Doc. No. 19.) Should Plaintiffs choose to do so, 4 || where leave is granted, they must file a second amended complaint curing the deficiencies 5 ||noted herein by December 10, 2024. Defendant must file a responsive pleading no later 6 || than December 27, 2024. 7 8 IT IS SO ORDERED. 9 || Dated: November 26, 2024 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28