FILED

NOT FOR PUBLICATION

SEP 8 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUCINDA LOZANO; et al., No. 20-15992

Plaintiffs-Appellants, D.C. No. 3:19-cv-02634-EMC

v.

MEMORANDUM*

COUNTY OF SANTA CLARA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Argued and Submitted August 10, 2021 San Francisco, California

Before: SILER,** CHRISTEN, and FORREST, Circuit Judges.

Plaintiffs appeal the district court’s Rule 12(b)(6) dismissal of claims

brought pursuant to 42 U.S.C. § 1983 by the parents of deceased inmate Johnny

Lozano. Because the parties are familiar with the facts, we do not recite them here.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. We review de novo a dismissal for failure to state a claim pursuant to Rule

12(b)(6), Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011), and we

review for abuse of discretion an order granting dismissal without leave to amend,

OSU Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. Plaintiffs argue they adequately pleaded that the County’s policies amounted

to deliberate indifference, and that the policies were the “moving force” behind

Lozano’s death pursuant to Monell v. Department of Social Services, 436 U.S. 658,

690, 694 (1978). See Dougherty, 654 F.3d at 900. The district court found that the

Amended Complaint alleged three County policies: “(1) failing to provide long-

term treatment plans for inmates,” (2) “canceling medical appointments and

falsifying the reasons for doing so,” and (3) “denying medically necessary

treatment to inmates for financial reasons.” The parties do not dispute that Lozano

had serious medical needs from the outset of his detention.

We conclude the Amended Complaint failed to allege deliberate indifference

due to any of these policies. First, while plaintiffs argue that Lozano was treated

with deliberate indifference because he was denied a long-term treatment plan,

they have not alleged that a reasonable officer would have known that the absence

of such a plan could result in further significant injury or the unnecessary and

2 wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); cf.

Long v. County of Los Angeles, 442 F.3d 1178 (9th Cir. 2006). Indeed, plaintiffs

allege that Lozano was denied routine care, but never specify what routine care

Lozano did not receive that would have prevented his death. As the district court

observed, the alleged facts are insufficient to raise an inference that additional

routine treatment would have prevented Lozano’s decline and death. See

Dougherty, 654 F.3d at 900.

Plaintiffs’ argument that Lozano suffered constitutional injury due to

cancellation of medical appointments also fails. Lozano was able to access

medical care on numerous occasions during his confinement, and he was never

denied treatment when symptomatic. Though subject to some delays, Lozano

received monitoring of his condition in the form of blood draws, vital sign checks,

medication, and medical device monitoring, and his medical appointments were all

eventually rescheduled. Cf. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir.

2012). Hence, plaintiffs have not adequately alleged that Lozano experienced

constitutional harm due to denial of a long-term treatment plan or cancellation of

medical appointments.

Plaintiffs also have not adequately alleged that Lozano was denied

medication and medical attention for financial reasons, or that any such denial

3 caused Lozano’s decline or death. With regard to the denial of a potential transfer

to Stanford, while the Complaint alleges that Lozano was not sent for further

treatment for financial reasons (e.g. because the jail system could not care for him

post-transplant), plaintiffs also allege that Dr. Fowler told Dr. Zhao that, in his

opinion, Lozano would not be a good fit for a transplant. This does not constitute

deliberate indifference by the County, nor have plaintiffs alleged that, had Lozano

received the transplant or some other heart implantation, he would have survived.

For these reasons, we conclude that Lozano did not plausibly allege deliberate

indifference due to a County policy.

2. Plaintiffs further argue that the district court erred by dismissing their § 1983

claim against the doctor defendants. Plaintiffs have not adequately alleged that any

of the individual doctors’ conduct created a “substantial risk of suffering serious

harm” that “a reasonable official in the circumstances would have appreciated,”

nor that their conduct caused Lozano’s decline and death. Gordon v. County of

Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). Therefore, we conclude that the

district court did not err by dismissing these claims.

3. Plaintiffs submit that the district court abused its discretion by denying leave

to amend on both their Monell claim and their claims against the doctor defendants.

However, in their appellate briefing, plaintiffs have not indicated that they would

4 be able to allege additional facts that could redeem their claims. Thus, we

conclude the district court did not abuse its discretion by denying leave to amend

the constitutional claims, as granting leave to amend would likely be futile.

4. Finally, plaintiffs argue the district court abused its discretion by

dismissing their medical malpractice and wrongful death claims without leave to

amend because California’s “delayed discovery doctrine” should apply. We

conclude that plaintiffs have forfeited this argument because they first raised it in

their motion for reconsideration. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir.

2018).

AFFIRMED.

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