1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ESTATE OF KENNETH DALE SUMNER; No. 2:22-cv-01638-JAM-SCR KERRI SUMNER, individually and as 10 successor-in-interest to KENNETH DALE SUMNER; and D.S.A., a minor, 11 by and through her guardian ad ORDER GRANTING DEFENDANTS’ litem, KERRI SUMNER, MOTION TO DISMISS 12 Plaintiffs, 13 v. 14

CALIFORNIA DEPARTMENT OF

15 CORRECTIONS AND REHABILITATION;

DAVID AGUILAR; HUNTER DUNCAN;

16 LEONARDO HERNANDEZ; ANTHONY LUNA;

ISAAC SALCEDO; ANTHONY VELASQUEZ;

17 OKALANI LATU, an individual; and

DOES 9-20,

18 Defendants. 19 20 The estate of Kenneth Sumner (“Sumner”), Kerri Sumner, and 21 Sumner’s minor child (collectively, “Plaintiffs”) brought this 22 action against the California Department of Corrections and 23 Rehabilitation (“CDCR”), various CDCR officers, and Okalani Latu 24 (Sumner’s cellmate), alleging civil rights violations regarding 25 Sumner’s incarceration at CDCR’s Substance Abuse Treatment 26 Facility (“SATF”) in Corcoran, California. See Third Am. Compl. 27 (“TAC”), ECF No. 59. CDCR officers David Aguilar, Hunter Duncan, 28 Leonardo Hernandez, Anthony Luna, Isaac Salcedo, and Anthony 1 Velasquez (collectively, “Defendants”) move to dismiss all of 2 Plaintiffs’ claims. See Mot., ECF No. 60. Plaintiffs opposed. 3 See Opp’n, ECF No. 62. Defendants replied, though they failed to 4 comply with the Court’s order regarding the length of their 5 brief. See Reply, ECF No. 63; Order Re Filing Requirements, ECF 6 No. 4-2. For the following reasons, the Court grants Defendants’ 7 motion and dismisses Plaintiffs’ federal claims with prejudice.1 8 I. BACKGROUND 9 Given the parties’ familiarity with this case, the Court 10 need not recount all background facts set forth in its prior 11 orders and instead provides a summary. See ECF Nos. 45, 50. In 12 July 2021, Sumner was incarcerated at SATF where he shared a cell 13 with Latu. TAC ¶ 19. After hearing “loud knocking noises” and 14 seeing “blood coming from the bottom” of Sumner and Latu’s cell, 15 Duncan activated his personal alarm. Id. ¶¶ 26-27. Salcedo, 16 Aguilar, Hernandez, Velasquez, and Luna responded to the scene. 17 Id. ¶¶ 29-31. Duncan opened the cell’s door and discovered 18 Sumner on the floor in cardiac arrest. Id. ¶¶ 28, 31. Sumner 19 was airlifted to a hospital where he was found apneic and 20 pulseless. Id ¶ 35. Sumner was placed on life support but died 21 five days later. Id. ¶ 36. The medical and autopsy reports 22 showed that Sumner’s injuries were inflicted by the blunt force 23 trauma of an object or repeated stomping. Id. ¶¶ 22, 31. 24 Plaintiffs initiated this lawsuit on September 16, 2022. 25 ECF No. 1. On May 8, 2023, this Court dismissed all of 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for June 3, 2025. 1 Plaintiffs’ claims against CDCR with prejudice. ECF No. 45. 2 Plaintiffs did not challenge this dismissal on appeal. See Ninth 3 Circuit Memorandum at 2 n. 1, ECF No. 57. Accordingly, CDCR is 4 no longer a party in this action. On September 5, 2023, this 5 Court dismissed Plaintiffs’ federal claims against Defendants 6 without leave to amend. ECF No. 50. Plaintiffs appealed this 7 latter order. See Ninth Circuit Memorandum. The Ninth Circuit 8 affirmed this Court’s dismissal of Plaintiffs’ claims but 9 reversed as to granting leave to amend. Id. at 2-6. 10 On remand, Plaintiffs filed their Third Amended Complaint. 11 See ECF Nos. 58-59. The only substantive change from the Second 12 Amended Complaint was Plaintiffs pleading that Defendants harmed 13 Sumner because “patterns from a lug-soled boot and a zigzag sole 14 of a sneaker were left on Mr. Sumner’s face.” See TAC ¶¶ 22, 47. 15 In addition to state law claims, Plaintiffs bring four federal 16 claims against Defendants: (1) excessive force under 42 U.S.C. 17 Section 1983; (2) failure to intervene under Section 1983; 18 (3) failure to protect under Section 1983; and (4) a Monell 19 violation of an unconstitutional municipal custom under Section 20 1983. Id. ¶¶ 41-70. Plaintiffs also bring these causes of 21 action against CDCR. However, because CDCR is no longer a party 22 in this action, the Court disregards it for purposes of this 23 motion. 24 For the reasons discussed below, Defendants now move to 25 dismiss the federal claims against them. See generally Mot. 26 II. OPINION 27 A. Legal Standard 28 A Rule 12(b)(6) motion challenges the sufficiency of a 1 complaint for “failure to state a claim upon which relief can be 2 granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to 3 dismiss [under 12(b)(6)], a complaint must contain sufficient 4 factual matter, accepted as true, to state a claim to relief 5 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009) (internal quotation marks and citation omitted). 7 Plausibility requires “factual content that allows the court to 8 draw the reasonable inference that the defendant is liable for 9 the misconduct alleged.” Id. While “detailed factual 10 allegations” are unnecessary, the complaint must allege more 11 than “[t]hreadbare recitals of the elements of a cause of 12 action, supported by mere conclusory statements.” Id. 13 Conclusory allegations are not to be considered in the 14 plausibility analysis. Id. at 679 (“While legal conclusions can 15 provide the framework of a complaint, they must be supported by 16 factual allegations.”). When a plaintiff fails to “state a 17 claim upon which relief can be granted,” the Court must dismiss 18 the claim. Fed. R. Civ. P. 12(b)(6). 19 B. Analysis 20 1. Whether Defendants Can Be Sued Under Section 1983 21 Defendants first argue that they cannot be sued pursuant to 22 Section 1983. Mot. at 6-7. Plaintiffs sue Defendants in their 23 official and individual capacities. See TAC ¶¶ 4-9. Defendants 24 correctly state that Section 1983 suits can only be brought 25 against state officials in their official capacity where the 26 plaintiff seeks injunctive relief. See Mot. at 6 (citing Wills 27 v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10 (1989)). 28 However, the Eleventh Amendment does not bar federal claims 1 seeking damages against a state official acting in his personal 2 capacity. Alden v. Maine, 527 U.S. 706, 756–57 (1999). 3 Accordingly, Plaintiffs have properly brought claims under 4 Section 1983 against Defendants in their individual capacities. 5 2. Plaintiffs’ Section 1983 Claim for Excessive Force 6 Plaintiffs’ first cause of action under Section 1983 alleges 7 Defendants violated Sumner’s constitutional rights under the 8 Eighth Amendment. TAC ¶¶ 41-47. An Eighth Amendment claim for 9 excessive force arises when prison officials participate in “the 10 unnecessary and wanton infliction of pain” that causes a 11 plaintiff harm. See Hudson v. McMillian, 503 U.S. 1, 5 (1992; 12 Hoard v. Hartman, 904 F.3d 780, 788 n.9 (9th Cir. 2018). 13 Plaintiffs’ claim fails for the same reason it failed last 14 time: Plaintiffs do not plausibly allege that any Defendant 15 harmed Sumner. Plaintiffs plead that Defendants did not locate 16 an object on Latu’s body or in his cell that could have caused 17 the blunt force trauma to Sumner’s head. TAC ¶ 31. They further 18 stated that Sumner died from “blunt force trauma inflicted by a 19 repeated stomping.” Id. ¶ 22. Plaintiffs argue that because 20 “patterns from a lug-soled boot and a zigzag sole of a sneaker 21 were left on Mr. Sumner’s face,” and because inmates are not 22 authorized to wear boots, a Defendant must have harmed Sumner. 23 See Opp’n at 7-8 (citing TAC ¶¶ 22, 24). 24 This claim fails for three reasons. First, Plaintiffs do 25 not plead which Defendant harmed Sumner. Because Plaintiffs 26 continue to refer to Defendants collectively, this claim must be 27 dismissed. See J.M. v. Pleasant Ridge Union Sch. Dist., No. CV- 28 216-00897-WBS-CKD, 2017 WL 117965, at *2 (E.D. Cal. 2017) 1 (“Failure to delineate conduct by a specific defendant prevents 2 the court from drawing the reasonable inference that the specific 3 defendant is liable for the claim alleged and justifies dismissal 4 of the claim.”). 5 Second, Plaintiffs do not plead any factual allegations that 6 allow the Court to draw the reasonable inference that at least 7 one Defendant harmed Sumner. As Plaintiffs plead, all CDCR 8 officers are required to wear boots, so Sumner possibly could 9 have been harmed by another officer or individual who had access 10 to a boot. See id. ¶ 34. Plaintiffs only show that it is 11 possible that one of Defendants harmed Sumner, but that does not 12 make their claim plausible. See Iqbal, 556 U.S. at 678 (holding 13 that the plausibility standard demands “more than a sheer 14 possibility that a defendant has acted unlawfully”). 15 Finally, the TAC’s timeline conflicts with Plaintiffs’ legal 16 conclusion that Defendants harmed Sumner. Plaintiffs allege that 17 Duncan activated his alarm after he saw blood coming from 18 Sumner’s cell, and that Sumner “was already in full cardiac 19 arrest once Corcoran staff finally intervened.” TAC ¶¶ 27-28. 20 These factual allegations suggest the harm causing Sumner’s death 21 occurred prior to Defendants’ involvement, which prevents the 22 Court from drawing the reasonable inference that the Defendants 23 are liable. See Iqbal, 556 U.S. at 678. 24 In short, as the Ninth Circuit observed on appeal, 25 Plaintiffs’ complaint “fails to allege how the force was applied, 26 when the alleged boot stomp took place, or whom, out of the six 27 Defendant officers, was responsible for the alleged boot stomp 28 giving rise to the excessive force claim.” Ninth Circuit 1 Memorandum at 3. The TAC does not fill in these gaps that this 2 Court and the Ninth Circuit found fatal to Plaintiffs’ excessive 3 force claim. Instead, Plaintiffs only put forth one new 4 allegation—that there were two distinct shoeprints on Sumner’s 5 face—that does not support the legal conclusion that Defendants 6 are liable. Because Plaintiffs do not plausibly plead that 7 Defendants harmed Sumner, their claim for excessive force fails. 8 3. Plaintiffs’ Section 1983 Claim for Failure to 9 Protect 10 Plaintiffs’ third section 1983 claim alleges Defendants 11 failed to protect Sumner in violation of the Eighth Amendment. 12 TAC ¶¶ 57-66. Prison officials “have a duty to protect prisoners 13 from violence at the hands of other prisoners.” Farmer v. 14 Brennan, 511 U.S. 825, 833 (1994) (cleaned up). Prison officials 15 violate this duty when the alleged deprivation of rights at the 16 hands of another prisoner is “objectively, sufficiently serious,” 17 and the prison officials “had a sufficiently culpable state of 18 mind, acting with deliberate indifference.” Hearns v. Terhune, 19 413 F.3d 1036, 1040 (9th Cir. 2005) (internal quotation marks and 20 citations omitted). That is, to be liable, a prison official 21 “must both be aware of facts from which the inference could be 22 drawn that a substantial risk of serious harm exists, and he must 23 also draw the inference.” Farmer, 511 U.S. at 837. 24 Plaintiffs present two theories of how Defendants acted with 25 deliberate indifference. First, Plaintiffs contend that 26 Defendants failed to protect Sumner from Latu by making 27 “intentional decisions that placed Mr. Sumner in substantial 28 risk” and failing “to take reasonable available measures to abate 1 the substantial risk of harm to [him].” TAC ¶¶ 59-60. They 2 support this legal conclusion by alleging that Defendants placed 3 Sumner in a cell with Latu even though Latu was “a notoriously 4 violent and unrepentant inmate” who had a “history of violence 5 towards fellow inmates.” TAC ¶¶ 19-20. But these are the same 6 allegations that failed to state a claim last time. As the Ninth 7 Circuit held, Plaintiffs’ complaint “does not present any 8 allegations as to Defendant officers’ knowledge of Latu’s 9 violence while incarcerated or allege facts supporting the claim 10 that the officers deliberately disregarded a risk to Sumner’s 11 safety.” See Ninth Circuit Memorandum at 3. Critically, the 12 complaint still lacks factual allegations “supporting that the 13 Defendant officers were aware of any existing animosity between 14 Latu and Sumner, or that they should have known that Latu posed a 15 specific threat to Sumner to which they were deliberately 16 indifferent.” See id. at 3-4 (emphasis original). Plaintiffs do 17 not cure these deficiencies in the TAC, and thus this theory of 18 deliberate indifference falls short. 19 Second, Plaintiffs argue that Defendants failed to protect 20 Sumner by not responding more quickly to the assault. Plaintiffs 21 allege that Duncan dismissed “the sounds of a violent commotion 22 within the . . . cell with a simple request for Mr. Latu to ‘stop 23 his actions’” and Defendants also failed to “conduct routine 24 cell-checks.” TAC ¶¶ 61-62. These allegations are the same as 25 in the Second Amended Complaint and fail again. As an initial 26 matter, Plaintiffs’ allegation of Defendants failing to conduct 27 routine cell checks is “devoid of any factual detail” that would 28 permit the Court to draw an inference of deliberate indifference. 1 See Ninth Circuit Memorandum at 3 n. 2. 2 Regarding Duncan’s response to the assault, Plaintiffs argue 3 that he should have done more than tell Latu to “stop his 4 actions.” Opp’n at 6 (citing TAC ¶ 27). This allegation does 5 not show deliberate indifference because it does not demonstrate 6 that Duncan knew of and disregarded a substantial risk to Sumner. 7 Indeed, Plaintiffs do not show that Duncan inferred from the loud 8 noises that there was a substantial risk of harm to Sumner. See 9 Farmer, 511 U.S. at 837. Moreover, when Duncan saw “blood coming 10 from the bottom of the cell door,” he activated his alarm and 11 called for assistance. TAC ¶ 23. This allegation shows that 12 Duncan responded promptly to the incident. 13 As to the other Defendants, Plaintiffs argue that Defendants 14 were in “close proximity” to Sumner’s cell and therefore should 15 have intervened sooner. Opp’n at 6. But in the TAC, Plaintiffs 16 only allege that Defendants were in SATF’s Facility C when Sumner 17 was attacked. See TAC ¶¶ 26-29. Facility C is an extensive 18 complex that includes eight housing units, two large recreational 19 yards, a law library, medical and dental units, a chapel, an 20 enclosed yard, and several program offices. See Martinez v. 21 Allison, No. 1:11-CV-00293-LJO, 2014 WL 1102704, at *4 (E.D. Cal. 22 Mar. 14, 2014), report and recommendation adopted, No. 23 111CV00293LJODLBPC, 2014 WL 12972320 (E.D. Cal. Aug. 11, 2014). 24 Given this context, the Court cannot draw the reasonable 25 inference that Defendants heard loud noises from Sumner’s cell 26 simply because they were in the same complex. And even if the 27 Court could draw such an inference, Plaintiffs do not plausibly 28 plead that Defendants inferred from any noise that there was a 1 substantial risk of harm to Sumner. See Farmer, 511 U.S. at 837. 2 Moreover, Plaintiffs themselves plead that Defendants immediately 3 responded to the incident after Duncan activated his alarm. See 4 TAC ¶¶ 29-31. These allegations do not demonstrate that 5 Defendants knew of and disregarded a substantial risk to Sumner. 6 On the contrary, they show that Defendants acted promptly and 7 took the matter seriously. 8 Because Plaintiffs do not plausibly state that Defendants 9 acted with deliberate indifference, this claim must be dismissed. 10 4. Plaintiffs’ Section 1983 Claim for Failure to 11 Intervene 12 Plaintiffs’ second section 1983 claim alleges Defendants 13 failed to intervene and therefore violated the Eighth Amendment’s 14 prohibition on cruel and unusual punishment. See TAC ¶¶ 48-56. 15 Defendants argue that this cause of action duplicates Plaintiffs’ 16 third claim for failure to protect. Mot. at 12. The Court 17 agrees, finding that this claim is also duplicative of 18 Plaintiffs’ first claim for excessive force. See TAC ¶ 52 19 (alleging Defendants imposed cruel and unusual punishment by 20 harming Sumner or allowing him to be harmed); id. ¶ 53 (alleging 21 Defendants acted with “deliberate indifference to the rights and 22 safety” of Sumner by either harming him or allowing him to be 23 harmed). Plaintiffs argue they properly allege failure to 24 intervene, but they support their position by rehashing their 25 allegations and arguments from their other claims. See Opp’n at 26 9-10. Accordingly, the Court finds Plaintiffs fail to 27 distinguish this claim and therefore dismisses it as redundant. 28 Alternatively, to the extent that Plaintiffs state a separate 1 claim, it is dismissed for the reasons analyzed above. 2 5. Plaintiffs’ Monell Claim and Official Capacity 3 Claims 4 Plaintiffs’ final federal claim is pursuant to Monell 5 against Defendants in their official capacities. See TAC ¶¶ 4-9, 6 67-70. Defendants argue the Court must dismiss these claims 7 because the Eleventh Amendment immunizes them from suit, as 8 Monell claims are only applicable to local entities, not state 9 entities like Defendants. See Mot. at 12 (citing Monell v. Dep’t 10 of Soc. Servs., 436 U.S. 658, 694 (1978)). 11 The Court agrees with Defendants. See Krainski v. State ex 12 rel. Bd. of Regents, 616 F.3d 963, 967 (9th Cir. 2010) (holding 13 that actions in federal court against state officials in their 14 official capacity are barred by the Eleventh Amendment); Quern v. 15 Jordan, 440 U.S. 332, 344-45 (1979) (holding that Congress did 16 not abrogate a state’s Eleventh Amendment immunity from suit 17 through enactment of Section 1983). Plaintiffs also fail to 18 respond to Defendants’ argument and, in fact, do not even address 19 their Monell claim in their brief. The Court construes 20 Plaintiffs’ failure to respond as a non-opposition to the 21 argument. See L.R. 230(c); California Parents for Equalization 22 of Educ. Materials v. Noonan, 600 F. Supp. 2d 1088, 1115 (E.D. 23 Cal. 2009); Hall v. Mortg. Invs. Grp., No. 2:11-CV-00952-JAM, 24 2011 WL 4374995, at *5 (E.D. Cal. Sept. 19, 2011). Accordingly, 25 Plaintiffs’ Monell claim is dismissed. 26 C. Leave to Amend 27 A court granting a motion to dismiss a claim must then 28 decide whether to grant leave to amend. Leave to amend should be 1 “freely given” where there is no “undue delay, bad faith or 2 dilatory motive on the part of the movant, . . . undue prejudice 3 to the opposing party by virtue of allowance of the amendment, 4 [or] futility of [the] amendment . . . .” Foman v. Davis, 371 5 U.S. 178, 182 (1962). Dismissal without leave to amend is proper 6 only if it is clear that “the complaint could not be saved by any 7 amendment.” Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 8 F.3d 1048, 1056 (9th Cir. 2007) (citation omitted). 9 Here, no claim can be “saved by any amendment.” See id. 10 Plaintiffs have amended their complaint three times and still 11 fail to state a claim under federal law. In addition to this 12 Court’s Order, Plaintiffs had the benefit of a Ninth Circuit 13 memorandum laying out precisely why their claims were 14 implausible, yet Plaintiffs failed to cure any deficiency upon 15 amendment. Plaintiffs also do not identify any potential 16 allegations they could plead in an amended complaint that would 17 save any claim. Because the Court finds that amendment would be 18 futile, it dismisses Plaintiffs’ federal claims with prejudice. 19 D. The Court’s Supplemental Jurisdiction Over Plaintiffs’ 20 State Claims 21 A district court may sua sponte decline to exercise 22 supplemental jurisdiction over pendant state law claims if it 23 “has dismissed all claims over which it has original 24 jurisdiction.” 28 U.S.C. § 1367(c)(3). The Court has original 25 jurisdiction over Plaintiffs’ Section 1983 claims. Having 26 dismissed these claims, the Court declines to exercise 27 supplemental jurisdiction over the remaining state law claims. 28 /// IEEE IIE III OE IIE II IR IIE IIE II IOI ED eee

1 E. Sanctions for Failure to Comply with the Court’s Order 2 Defendants’ Reply exceeded the Court’s page limit. See 3 Order re Filing Requirements at 1. Defendants’ Reply was ten 4 pages, and the filing requirements limit this brief to five pages 5 and call for sanctions of $50 per page exceeding the limit. See 6 | id. Local Rule 110 authorizes the Court to impose sanctions for 7 “failure of counsel or of a party to comply with . . . any order 8 of the Court.” Therefore, the Court sanctions Defendants’ 9 counsel, Jeremy Duggan, $250. 10 TILT. ORDER 11 For the reasons set forth above, the Court GRANTS 12 Defendants’ Motion to Dismiss. Plaintiffs’ First, Second, Third, 13 and Fourth Causes of Action are DISMISSED WITH PREJUDICE. The 14 Court declines to exercise its jurisdiction over Plaintiffs’ 15 remaining state claims. 16 It is further ordered that within ten (10) days of this 17 Order Jeremy Duggan shall pay sanctions of $250.00 to the Clerk 18 of the Court. 19 IT IS SO ORDERED. 20 Dated: June 3, 2025 21 cp,

JOHN A. MENDEZ

23 SENIOR UNITED*STATES DISTRICT JUDGE 24 25 26 27 28 13