1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ESTATE OF F.R. Jr. and No. 2:23-cv-00846 WBS CKD

LORI ROSILES,

13 Plaintiffs, 14 MEMORANDUM AND ORDER RE: v. DEFENDANTS’ MOTION TO DISMISS 15

COUNTY OF YUBA, YUBA COUNTY

16 SHERIFF’S OFFICE, and DOES 1 to 10, 17 Defendants. 18

19 ----oo0oo---- 20 Plaintiffs Estate of F.R. Jr. and Lori Rosiles brought 21 this action against plaintiffs County of Yuba, Yuba County 22 Sheriff’s Office, and Does 1 through 10 in connection with F.R.’s 23 death. The complaint asserts the following claims: (1) violation 24 of the Fourteenth Amendment under the state-created danger rule; 25 (2) violation of the Fourteenth Amendment under the special 26 relationship exception; (3) unreasonable post-seizure care under 27 the Fourth Amendment; (4) violation of Section 504 of the 28 1 Rehabilitation Act; (5) violation of the Americans with 2 Disabilities Act; (6) interference with familial association 3 under the Fourteenth Amendment; (7) interference with familial 4 association under the First Amendment; (8) unreasonable post- 5 seizure care under Article I, § 13 of the California 6 Constitution; (9) violation of the Tom Bane Civil Rights Act; 7 (10) intentional infliction of emotional distress; (11) 8 negligence; and (12) wrongful death. (Compl. (Docket No. 1.) 9 Defendants now move to dismiss the complaint in its entirety. 10 (Docket No. 7.) 11 I. Factual Background1 12 During the evening of February 5, 2021, 10-year-old 13 F.R. was inside his relatives’ residence in Olivehurst, 14 California. (Compl. ¶¶ 15-16.) F.R. was shot in the abdomen 15 with a bullet. (Id. ¶ 17.) F.R.’s relatives called 9-1-1 and 16 the dispatcher informed them than an ambulance would be 17 dispatched. (Id. ¶ 19.) While waiting for the ambulance, F.R.’s 18 relatives prepared a vehicle to take F.R. to the hospital. (Id. 19 ¶ 20.) When the ambulance did not arrive after a “short while,” 20 F.R.’s relatives placed him into the backseat of a pickup truck 21 to be transported to the hospital. (Id. ¶ 21.) 22 As the vehicle was about to depart, several patrol 23 vehicles occupied by Yuba County Sheriff’s Office deputies 24 arrived at the residence. (Id. ¶ 22.) The patrol vehicles 25 surrounded the truck and prevented the truck from departing to 26 the hospital. (Id. ¶ 23.) The officers pointed firearms at the 27 1 All facts recited herein are as alleged in the 28 Complaint unless otherwise noted. 1 driver of the truck and dragged F.R. from the truck, laying him 2 on the ground in a puddle of water. (Id. ¶¶ 25, 28.) F.R.’s 3 relatives pleaded with the officers to allow F.R. to be 4 transported in the truck to the hospital, which the officers 5 ignored. (Id. ¶¶ 26-27.) The officers prevented F.R.’s 6 relatives from approaching F.R. (Id. ¶ 32.) F.R.’s mother, Lori 7 Rosiles, arrived at the residence during the incident and was 8 similarly prevented from approaching F.R. (Id. ¶ 34.) The 9 officers did not provide any emergency medical assistance and 10 prevented anyone else at the scene from rendering assistance. 11 (Id. ¶¶ 31-32.) 12 F.R. lay on the ground for at least fifteen minutes 13 before the ambulance arrived. (Id. ¶ 35.) F.R. was later 14 pronounced dead. (Id. ¶ 39.) 15 II. Legal Standard 16 Federal Rule of Civil Procedure 12(b)(6) allows for 17 dismissal when a complaint fails to state a claim upon which 18 relief can be granted. See Fed. R. Civ. P. 12(b)(6). “A Rule 19 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro 20 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry before 21 the court is whether, accepting the allegations in the complaint 22 as true and drawing all reasonable inferences in the plaintiff’s 23 favor, the complaint has alleged “sufficient facts . . . to 24 support a cognizable legal theory,” id., and thereby stated “a 25 claim to relief that is plausible on its face,” Bell Atl. Corp. 26 v. Twombly, 550 U.S. 544, 570 (2007). 27 III. Civil Rights Claims 28 A. State-Created Danger (First Claim) 1 Under the state-created danger rule, state actors may 2 be held liable under § 1983 where (1) “‘affirmative conduct on 3 the part of a state actor places a plaintiff in danger,’” and (2) 4 the state actor “acts with ‘deliberate indifference’ to a ‘known 5 or obvious danger’” to the plaintiff’s safety. Murguia v. 6 Langdon, 61 F.4th 1096, 1111 (9th Cir. 2023) (quoting Penilla v. 7 City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997); Patel 8 v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011)). 9 “To satisfy the first requirement, a plaintiff ‘must 10 show that the officers’ affirmative actions created or exposed 11 him to an actual, particularized danger that he would not 12 otherwise have faced.’” Murguia, 61 F.4th at 1111 (quoting 13 Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019)) 14 (alterations adopted). “‘In examining whether an officer 15 affirmatively places an individual in danger, we do not look 16 solely to the agency of the individual, nor do we rest our 17 opinion on what options may or may not have been available to the 18 individual. Instead, we examine whether the officers left the 19 person in a situation that was more dangerous than the one in 20 which they found him.’” Id. (quoting Munger v. City of Glasgow 21 Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000)). “‘The 22 critical distinction is not . . . an indeterminate line between 23 danger creation and enhancement, but rather the stark one between 24 state action and inaction in placing an individual at risk.’” 25 Id. (quoting Penilla, 115 F.3d at 710). “Furthermore, the 26 plaintiff’s ultimate injury must have been foreseeable to the 27 defendant.” Id. (citing Martinez, 943 F.3d at 1273). “‘This 28 does not mean that the exact injury must be foreseeable. Rather, 1 the state actor is liable for creating the foreseeable danger of 2 injury given the particular circumstances.’” Id. (quoting 3 Martinez, 943 F.3d at 1273–74) (internal quotation marks 4 omitted). 5 Here, plaintiffs allege that defendants prevented 6 F.R.’s family members from either rendering medical aid or 7 transporting him to the hospital. This constitutes not a mere 8 omission, but affirmative conduct that left F.R. “in a situation 9 that [is] more dangerous than the one in which they found him.” 10 See Munger, 227 F.3d at 1086. As the Ninth Circuit has held, 11 where officers find a plaintiff “facing a preexisting danger from 12 [a] gunshot wound,” “[i]mpeding access to medical care amounts to 13 leaving [the plaintiff] in a more dangerous situation.” Maxwell 14 v. County of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013). See 15 also Murguia, 61 F.4th at 1112 (“This court and other circuits 16 have applied the state-created danger exception in situations 17 where an officer abandoned the plaintiff in a dangerous 18 situation, separated the plaintiff from a third-party who may 19 have offered assistance, or prevented other individuals from 20 rendering assistance to the plaintiff.”) 21 The potential injury from an untreated gunshot wound is 22 “objectively foreseeable as a matter of common sense.” See 23 Murguia, 61 F.4th at 1115–16. As the Ninth Circuit has held, the 24 potential harm from “delaying a bleeding gun shot victim’s 25 [medical care]” is so “obvious” that such conduct demonstrates 26 deliberate indifference. See Maxwell, 708 F.3d at 1083. 27 Because plaintiffs have sufficiently alleged that 28 defendants affirmatively placed F.R. in danger with deliberate 1 indifference to his safety, the court concludes that plaintiffs 2 have stated a claim under the state-created danger rule. 3 Accordingly, the court will deny the motion to dismiss the first 4 claim under the Fourteenth Amendment. 5 B. Special Relationship (Second Claim) 6 “The Fourteenth Amendment’s Due Process Clause 7 generally does not confer any affirmative right to governmental 8 aid, even where such aid may be necessary to secure life, 9 liberty, or property interests.” Patel, 648 F.3d at 971. 10 However, under the “special relationship” exception, state actors 11 may be held liable for their omissions where they “‘take[] a 12 person into [their] custody and hold[] him there against his 13 will.’” Id. at 971–72 (quoting Deshaney v. Winnebago Cnty. Dep’t 14 of Soc. Servs., 489 U.S. 189, 199-200 (1989)). This exception 15 exists because “a state cannot restrain a person’s liberty 16 without also assuming some responsibility for the person’s safety 17 and well-being.” Id. at 972. 18 Defendants argue that F.R. was never placed into state 19 custody. “‘[C]ustody’ for the purposes of the special- 20 relationship exception is a restriction on the plaintiff’s 21 liberty that limits the ability of the plaintiff (or the 22 plaintiff’s parents) to meet the plaintiff’s basic needs (e.g., 23 incarceration, institutionalization, foster care).” Murguia, 61 24 F.4th at 1110. 25 Here, the officers removed F.R. from his relative’s 26 vehicle and prevented his relatives from even approaching him, 27 let alone attending to his needs. In doing so, the officers held 28 him in custody such that the special relationship exception was 1 triggered. See A.H. v. County of Tehama, No. 2:18-cv-02917 TLN 2 DMC, 2020 WL 4474909, at *7 (E.D. Cal. Aug. 4, 2020) (plaintiffs 3 stated a special relationship claim where they alleged that 4 officers temporarily prevented them from “leav[ing] and seek[ing] 5 medical help”). Cf. Murguia, 61 F.4th at 1110 (children were not 6 in state custody for purposes of special relationship exception 7 where they were with one parent at all times). 8 Accordingly, the court will deny the motion to dismiss 9 the second claim under the special relationship exception. 10 C. Unreasonable Post-Seizure Care (Third Claim) 11 Under the Fourth Amendment, “[o]fficers must provide 12 objectively reasonable post-arrest care” to an individual in 13 police custody. Rosales v. County of San Diego, 511 F. Supp. 3d 14 1070, 1091 (S.D. Cal. 2021) (citing Tatum v. City & County of San 15 Francisco, 441 F.3d 1090, 1098 (9th Cir. 2006)). “The Ninth 16 Circuit has not precisely defined the contours of what it means 17 to provide ‘objectively reasonable post-arrest care.’” Henriquez 18 v. City of Bell, 14-cv-196 GW SS, 2015 WL 13357606, at *6 (C.D. 19 Cal. Apr. 16, 2015). “However, the Fourth Amendment analysis 20 generally concerns whether the defendant’s conduct was reasonable 21 under the totality of the circumstances, viewed from the 22 perspective of a reasonable person on the scene.” Rosales, 511 23 F. Supp. 3d at 1091 (citing Plumhoff v. Rickard, 572 U.S. 765, 24 774–75 (2014); Tatum, 441 F.3d at 1098). 25 The leading Ninth Circuit case on this issue is Tatum 26 v. City & County of San Francisco, 441 F.3d at 1098. Tatum 27 involved a plaintiff who died of cocaine toxicity following his 28 arrest. Id. at 1093. The Ninth Circuit concluded that the 1 arresting officers had provided objectively reasonable post- 2 arrest care where they “promptly summon[ed] the necessary medical 3 assistance” upon noticing the plaintiff’s breathing was labored, 4 continuously monitored the plaintiff’s medical condition by 5 checking his breathing and pulse, and upon realizing that the 6 plaintiff’s condition was deteriorating, contacted dispatch again 7 to request that the ambulance be given priority. Id. at 1093, 8 1099. 9 Defendants argue that, as in Tatum, an ambulance 10 arrived to take F.R. to the hospital, and accordingly the 11 officers complied with the Fourth Amendment. See id. at 1099 12 (“the officers promptly requested medical assistance, and the 13 Constitution required them to do no more”). However, this case 14 is factually distinguishable from Tatum in multiple ways. First, 15 it is not clear from the complaint that the officers involved did 16 call for assistance at all. By the time the officers arrived, 17 F.R.’s family had contacted emergency services and an ambulance 18 had already been dispatched. (See Compl. ¶¶ 19-22.) Second, 19 there are no allegations suggesting that the officers took steps 20 to monitor F.R.’s medical condition. (See generally Compl.) 21 Third, and perhaps most importantly, the officers did more than 22 merely wait for emergency services to arrive; rather, they 23 allegedly prevented F.R.’s family from either approaching him to 24 check his condition and render medical assistance or transporting 25 him to the hospital. (See Compl. ¶¶ 24, 26-27, 32.) 26 On the facts as alleged, a reasonable finder of fact 27 could conclude that the officers’ actions in preventing F.R. from 28 accessing medical assistance from third parties was unreasonable 1 under the circumstances. See Rosales, 511 F. Supp. 3d at 1092 2 (“obstructing paramedics in an ambulance by attempting to 3 handcuff an unconscious arrestee suffering a cardiac arrest is 4 objectively unreasonable post-arrest care”); Ochoa v. City of San 5 Jose, No. 21-cv-02456 BLF, 2021 WL 7627630, at *11 (N.D. Cal. 6 Nov. 17, 2021) (denying motion to dismiss post-arrest medical 7 care claim where plaintiff alleged that officers delayed access 8 to medical care without a valid law enforcement purpose); Ostling 9 v. City of Bainbridge Island, 872 F. Supp. 2d 1117, 1129–30 (W.D. 10 Wash. 2012) (concluding that where plaintiff suffering from 11 gunshot wound alleged that the defendant officers prevented 12 plaintiff’s father from checking on his condition, “a reasonable 13 factfinder could conclude that [the officers’] restriction of 14 medical aid was unreasonable and led to [the plaintiff’s] 15 death”). 16 Defendants also argue that the officers had no 17 obligation to provide reasonable post-seizure care under the 18 Fourth Amendment because F.R. was not injured while being 19 apprehended. However, in Tatum, the Ninth Circuit found that the 20 officers were under such an obligation, despite the plaintiff’s 21 drug-related death not having been caused by the circumstances of 22 the arrest. See 441 F.3d at 1092–93. That F.R.’s gunshot wound 23 was unrelated to the circumstances of his seizure thus does not 24 alter the outcome here. 25 Accordingly, the court concludes that plaintiffs have 26 stated a claim for unreasonable post-seizure care and will deny 27 the motion to dismiss the third claim under the Fourth Amendment. 28 1 D. Rehabilitation Act and Americans with Disabilities Act (Fourth and Fifth Claims) 2 3 “Title II of the ADA prohibits public entities from 4 discriminating on the basis of disability. Section 504 [of the 5 Rehabilitation Act] similarly prohibits disability discrimination 6 by recipients of federal funds.” Payan v. Los Angeles Cmty. 7 Coll. Dist., 11 F.4th 729, 737 (9th Cir. 2021) (citing 42 U.S.C. 8 § 12132; 29 U.S.C. § 794). “The two laws are interpreted 9 coextensively because ‘there is no significant difference in the 10 analysis of rights and obligations created by the two Acts.’” 11 Id. (quoting K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 12 725 F.3d 1088, 1098 (9th Cir. 2013)). 13 To state a claim for disability discrimination, “the 14 plaintiff must allege four elements: (1) the plaintiff is an 15 individual with a disability; (2) the plaintiff is otherwise 16 qualified to participate in or receive the benefit of some public 17 entity’s services, programs, or activities; (3) the plaintiff was 18 either excluded from participation in or denied the benefits of 19 the public entity’s services, programs, or activities, or was 20 otherwise discriminated against by the public entity; and (4) 21 such exclusion, denial of benefits, or discrimination was by 22 reason of the plaintiff’s disability.” Thompson v. Davis, 295 23 F.3d 890, 895 (9th Cir. 2002). 24 In support of their disability discrimination claims, 25 plaintiffs allege that defendants impeded F.R.’s access to 26 medical care. However, such allegations cannot form the basis 27 for a disability discrimination claim because the ADA and Section 28 504 “prohibit[] discrimination because of disability, not 1 inadequate treatment for disability.” See Simmons v. Navajo 2 County, 609 F.3d 1011, 1022 (9th Cir. 2010), overruled on other 3 grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th 4 Cir. 2016) (en banc). See also Wilkey v. County of Orange, 295 5 F. Supp. 3d 1086, 1093 (C.D. Cal. 2017) (allegations that 6 defendants denied access to medical care cannot support claim for 7 disability discrimination); Brown v. Brown, No. 1:14-cv-01184 8 LJO, 2015 WL 2374284, at *6 (E.D. Cal. May 18, 2015) (“the 9 treatment, or lack of treatment, concerning Plaintiff’s medical 10 conditions does not provide a basis upon which to impose 11 liability under the ADA”). 12 Accordingly, the court will dismiss the fourth and 13 fifth claims for disability discrimination under Section 504 and 14 the ADA in their entirety.

15 E. Interference With Familial Association Under First and Fourteenth Amendments (Sixth and Seventh Claims) 16 17 Defendants request that the familial association claims 18 be dismissed, yet fail to present any argument aside from a 19 restatement of their Monell arguments. (See Mot. at 12.) The 20 Ninth Circuit has long recognized parental claims for 21 interference with familial association under both the First and 22 Fourteenth Amendments. See Wilkinson v. Torres, 610 F.3d 546, 23 554 (9th Cir. 2010); Lee v. City of Los Angeles, 250 F.3d 668, 24 685–86 (9th Cir. 2001).2 Accordingly, the court will deny the

25 2 See also Mann v. City of Sacramento, No. 21-15440, 2022 WL 2128906, at *1 (9th Cir. June 14, 2022) (quoting Bd. of 26 Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 27 (1987)) (in determining whether a familial association claim exists, courts look to multiple aspects of the relationship, 28 including (1) the size of the group, (2) purpose of the group, 1 motion dismiss the sixth and seventh claims for interference with 2 familial association against the Doe defendants.

3 F. Unreasonable Post-Seizure Care Under Article I, Section 13 of the California Constitution (Eighth Claim) 4 5 The California Supreme Court has not decided whether 6 there is a private cause of action for damages under Article I, 7 Section 13, which protects against unreasonable searches and 8 seizures. See Julian v. Mission Cmty. Hosp., 11 Cal. App. 5th 9 360, 393 (2d. Dist. 2017). To determine whether the California 10 Constitution provides for a private right of action, the court 11 must engage in the analysis set forth by the California Supreme 12 Court in Katzberg v. Regents of the University of California, 29 13 Cal. 4th 300, 317 (2002). 14 The Katzberg analysis employs a two-step approach. 15 First, the court must “inquire whether there is evidence from 16 which we may find or infer, within the constitutional provision 17 at issue, an affirmative intent either to authorize or to 18 withhold a damages action to remedy a violation.” See Katzberg, 19 29 Cal. 4th at 317. In undertaking this inquiry, the court 20 “shall consider the language and history of the constitutional 21 provision at issue, including whether it contains guidelines, 22 mechanisms, or procedures implying a monetary remedy, as well as 23 any pertinent common law history.” See id. If the court finds 24 any such intent, it shall give it effect. See id. 25 Second, “if no affirmative intent either to authorize 26 or to withhold a damages remedy is found, the court shall 27 (3) its selectivity, and (4) “whether others are excluded from 28 critical aspects of the relationship”). 1 undertake the ‘constitutional tort’ analysis adopted in Bivens v. 2 Six Unknown Federal Narcotics Agents, 403 U.S. 388–398 (1971), 3 and its progeny.” See id. “Among the relevant factors in this 4 analysis are whether an adequate remedy exists, the extent to 5 which a constitutional tort action would change established tort 6 law, and the nature and significance of the constitutional 7 provision.” See id. If the court finds that the factors 8 militate against recognizing the constitutional tort, the inquiry 9 ends. See id. If the factors favor recognizing a constitutional 10 tort, the court shall also consider the existence of any special 11 factors counseling hesitation in recognizing a damages action, 12 including “deference to legislative judgment, avoidance of 13 adverse policy consequences, considerations of government fiscal 14 policy, practical issues of proof, and the competence of courts 15 to assess particular types of damages.” Id. 16 “Section 13 does not mention damages,” and the court is 17 not aware of “any drafting history, ballot materials, historical 18 records, or common law decisions suggesting section 13 was 19 adopted with an intent to make damages available.” Rios v. 20 County of Sacramento, 562 F. Supp. 3d 999, 1022-23 (E.D. Cal. 21 2021) (Mueller, J.); see also Wigfall v. City & County of San 22 Francisco, No. 06-cv-4968 VRW, 2007 WL 174434, at *5 (N.D. Cal. 23 Jan. 22, 2007) (analyzing plain language and legislative history 24 and finding an “absence of dispositive evidence concerning 25 intent” to create a damages remedy under § 13); Manning v. City 26 of Rohnert Park, No. 06-cv-03435 SBA, 2007 WL 1140434, at *1 27 (N.D. Cal. 2007) (“Neither the plain language of [] article I, 28 section 13, nor the available legislative history indicate an 1 intent on behalf of the California Legislature to permit the 2 recovery of monetary damages for its violation.”); Leon v. City 3 Of Merced, No. 1:14-cv-01129 GEB, 2015 WL 135904, at *4 (E.D. 4 Cal. Jan. 9, 2015); Brown v. County of Kern, No. 1:06-CV-00121 5 OWW TAG, 2008 WL 544565, at *17 (E.D. Cal. Feb. 26, 2008). 6 Some courts have recognized a cause of action under § 7 13 based solely on dicta in Katzberg explaining that English 8 common law “‘provided a damage remedy for the victims of unlawful 9 searches at common law.’” See, e.g., Brewster v. City of Los 10 Angeles, No. 14-cv-2257 JGB SP, 2020 WL 5991621, at *15 (C.D. 11 Cal. July 14, 2020) (quoting Katzberg, 29 Cal. 4th at 322). The 12 court does not find this general common law history to be 13 sufficient evidence of “affirmative intent” to create a private 14 cause of action, and therefore resort to the second step of the 15 Katzberg analysis is appropriate. See Katzberg, 29 Cal. 4th at 16 317. 17 The second step of the analysis -- which incorporates 18 “Bivens and its progeny,” see Katzberg, 29 Cal. 4th at 314 -- is 19 significantly simplified by the Supreme Court’s recent decision 20 in Egbert v. Boule, 142 S. Ct. 1793 (2022). The Egbert court 21 explained that since Bivens, Davis v. Passman, 442 U.S. 228 22 (1979), and Carlson v. Green, 446 U.S. 14 (1980), it has not 23 implied any additional causes of action under the Constitution, 24 despite multiple opportunities to do so, noting (1) the tension 25 between judicially created causes of action and the separation of 26 powers under the Constitution and (2) Congress’ superior position 27 to consider the policy considerations of creating a cause of 28 action. Given these concerns, “if there are sound reasons to 1 think [the legislative branch] might doubt the efficacy or 2 necessity of a damages remedy, the courts must refrain from 3 creating it.” Id. at 1802-03. “‘Even a single sound reason to 4 defer to [the legislature] is enough to require a court to 5 refrain from creating such a remedy,’ and ‘if there is a rational 6 reason to think that’ the legislature should decide whether to 7 provide for a damages remedy, ‘no Bivens action may lie.’” 8 Sheikh v. U.S. Dep’t of Homeland Sec., No. 2:22-cv-00409 WBS AC, 9 2022 WL 16964105, at *3 (E.D. Cal. Nov. 16, 2022) (quoting 10 Egbert, 142 S. Ct. at 1802-03) (alterations adopted). 11 Here, there are clear reasons to defer creation of a 12 private cause of action under § 13 to the California Legislature. 13 In particular, the Legislature has already undertaken to provide 14 an alternative remedy for constitutional violations, including 15 violations of § 13 -– specifically, the Tom Bane Civil Rights 16 Act. See Egbert, 142 S. Ct. at 1806 (existence of an alternative 17 legislatively-created remedy “foreclose[s]” the availability of a 18 judicially-created cause of action); Rios, 562 F. Supp. 3d at 19 1022-23 (availability of remedy under Tom Bane Act counsels 20 against recognizing cause of action under § 13); Brown, 2008 WL 21 544565, at *17 (same); Manning, 2007 WL 1140434, at *1 (same); 22 Astorga v. County of Los Angeles, No. 2:20-cv-09805 ABA GR, 2022 23 WL 3449810, at *4 (C.D. Cal. Feb. 9, 2022) (same); Rivera v. 24 County of San Diego, No. 16-cv-795 PSG KS, 2016 WL 10587937, at 25 *9 (C.D. Cal. Dec. 5, 2016) (same); Weimer v. County of Kern, No. 26 1:06-cv-00735 OWW DLB, 2006 WL 3834237, at *8 (E.D. Cal. Dec. 28, 27 2006) (same). 28 The court therefore concludes that no private cause of 1 action is available under Article I, Section 13. Accordingly, 2 the court will grant the motion to dismiss the eighth claim under 3 the California Constitution. 4 G. Tom Bane Act Civil Rights (Ninth Claim) 5 Defendants argue that plaintiffs have failed to allege 6 a specific intent to violate the plaintiff’s rights, as required 7 to state a claim under the Tom Bane Act. See Reese v. County of 8 Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell 9 v. City & County of S.F., 17 Cal. App. 5th 766, 801 (1st Dist. 10 2017)). However, “specific intent” may be shown by demonstrating 11 that the officer “acted . . . ‘in reckless disregard of 12 constitutional or statutory prohibitions or guarantees.’” See 13 Cornell, 17 Cal. App. 5th at 803-04 (citation omitted); Reese, 14 888 F.3d at 1045 (“[A] reckless disregard for a person’s 15 constitutional rights is evidence of a specific intent to deprive 16 that person of those rights.”). 17 Here, plaintiffs’ allegations that defendants impeded 18 access to urgent medical care are sufficient to establish 19 reckless disregard for purposes of a Tom Bane Act claim. See 20 Galley v. County of Sacramento, No. 2:23-cv-00325 WBS AC, 2023 WL 21 4534205, at *5 (E.D. Cal. July 13, 2023) (allegations that 22 defendants deprived access to medical care are sufficient to 23 establish specific intent required for a Tom Bane Act claim). 24 Accordingly, the court will deny the motion to dismiss the ninth 25 claim under the Tom Bane Act. 26 IV. Municipal Liability 27 Plaintiffs’ first, second, third, sixth, and seventh 28 claims are § 1983 claims also brought against the County of Yuba 1 and the Yuba County Sheriff’s Office. In addition to the 2 arguments addressed above, defendants argue broadly that 3 plaintiffs have failed to state sufficient allegations to support 4 municipal liability under § 1983 against these defendants. 5 As § 1983 does not provide for vicarious liability, 6 local governments “may not be sued under § 1983 for an injury 7 inflicted solely by its employees or agents.” Monell v. Dep’t of 8 Soc. Servs. of N.Y., 436 U.S. 658, 693 (1978). “Instead, it is 9 when execution of a government’s policy or custom, whether made 10 by its lawmakers or by those whose edicts or acts may fairly be 11 said to represent official policy, inflicts the injury that the 12 government as an entity is responsible under § 1983.” Id. 13 To state a Monell claim, “a plaintiff must allege 14 either that (1) a particular municipal action itself violates 15 federal law, or directs an employee to do so; or (2) the 16 municipality, through inaction, failed to implement adequate 17 policies or procedures to safeguard its community members’ 18 federally protected rights.” Hyun Ju Park v. City & County of 19 Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020) (internal quotation 20 marks omitted). 21 Plaintiffs advance two theories of Monell liability: 22 first, that defendants’ official written transport policy led to 23 the alleged constitutional violations; and second, that 24 defendants’ failure to provide adequate policies and training led 25 to the alleged constitutional violations. 26 A. Written Policy 27 Plaintiffs point to Yuba County Sheriff’s Office Policy 28 430.4 concerning the transport of ill and injured persons. The 1 policy provides that officers “should not transport persons who 2 are unconscious, who have serious injuries or who may be 3 seriously ill,” and instead “EMS personnel should be called to 4 handle patient transportation.” (Compl. ¶ 46.) The policy also 5 provides that “members should not provide emergency escort for 6 medical transport or civilian vehicles.” (Id.) 7 Plaintiffs argue that because the officers’ actions 8 were consistent with this policy, the policy is responsible for 9 their allegedly unconstitutional conduct. However, plaintiffs’ 10 claims are not premised on the officers’ refusal to transport 11 F.R. or provide an escort for a civilian vehicle; rather, 12 plaintiffs take issue with the officers’ refusal to allow F.R. to 13 be taken to the hospital in a civilian vehicle. This scenario 14 falls outside the scope of the transport policy. It makes little 15 sense to argue that the policy -- which does not apply to the 16 events at issue -- is directly responsible for the alleged 17 constitutional violations. Plaintiffs have therefore failed to 18 state Monell claims premised on the written transport policy. 19 B. Failure to Train 20 In order to state a claim for failure to train under 21 Monell, a plaintiff must allege that: (1) the existing training 22 program is inadequate in relation to the tasks the particular 23 officers must perform; (2) the officials have been deliberately 24 indifferent to the rights of the persons with whom the police 25 come into contact; and (3) the inadequacy of the training 26 “actually caused the deprivation of the alleged constitutional 27 right.” See Merritt v. County of Los Angeles, 875 F.2d 765, 770 28 (9th Cir. 1989). The deliberate indifference standard is met 1 when “the need for more or different training is so obvious, and 2 the inadequacy so likely to result in the violation of 3 constitutional rights, that the policymakers of the city can 4 reasonably be said to have been deliberately indifferent to the 5 need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989). 6 “A pattern of similar constitutional violations by 7 untrained employees is ‘ordinarily necessary’ to demonstrate 8 deliberate indifference for purposes of failure to train.” 9 Connick v. Thompson, 563 U.S. 51, 62 (2011) (internal citations 10 omitted). However, “[a] plaintiff . . . might succeed in proving 11 a failure-to-train claim without showing a pattern of 12 constitutional violations where ‘a violation of federal rights 13 may be a highly predictable consequence of a failure to equip law 14 enforcement officers with specific tools to handle recurring 15 situations.’” Long v. County of Los Angeles, 442 F.3d 1178, 1186 16 (9th Cir. 2006) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 17 397, 409 (1997)). 18 Here, plaintiffs have not alleged any pattern of 19 similar constitutional violations, nor have they provided any 20 other factual allegations suggesting deliberate indifference. 21 The complaint generically states that the municipal defendants 22 “were or should have been on notice” regarding the inadequacy of 23 their policies or training “because the inadequacies of the 24 policies, procedures, and training constituted life-threatening 25 decisions and were so obvious and likely to result in the 26 violation of rights of persons coming into contact with 27 officials.” (Compl. ¶ 52.) There are no underlying factual 28 allegations that support this conclusion. As a result, 1 plaintiffs have failed to state a Monell claim based on failure 2 to train. See Via v. City of Fairfield, 833 F. Supp. 2d 1189, 3 1196 (E.D. Cal. 2011) (Shubb, J.) (“Since Iqbal, courts have 4 repeatedly rejected . . . conclusory allegations that lack 5 factual content from which one could plausibly infer Monell 6 liability.”) (collecting cases). 7 Having concluded that plaintiffs have failed to state 8 claims for Monell liability premised on either the transport 9 policy or a failure to train, the court will grant the motion to 10 dismiss the first, second, third, sixth, and seventh claims only 11 as against the municipal defendants. 12 V. Remaining State Law Claims 13 A. IIED (Tenth Claim) 14 To state a claim for intentional inflection of emotion 15 distress (“IIED”), a plaintiff must allege: “(1) extreme and 16 outrageous conduct by the defendant with the intention of 17 causing, or reckless disregard of the probability of causing, 18 emotional distress; (2) the plaintiff’s suffering severe or 19 extreme emotional distress; and (3) actual and proximate 20 causation of the emotional distress by the defendant's outrageous 21 conduct.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 22 1001 (1993); Avila v. Willits Env’t Remediation Tr., 633 F.3d 23 828, 844 (9th Cir. 2011) (same). “Conduct is ‘extreme and 24 outrageous’ when it is ‘so extreme as to exceed all bounds of 25 that usually tolerated in a civilized community.” Robles v. 26 Agreserves, Inc., 158 F. Supp. 3d 952, 978 (E.D. Cal. 2016) 27 (Ishii, J.) (quoting Hughes v. Pair, 46 Cal. 4th 1035, 1050 28 (2009); Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1 1001 (1993)). See also Crouch v. Trinity Christian Cent. of 2 Santa Ana, Inc., 39 Cal. App. 5th 995, 1007 (4th Dist. 2019) 3 (“Generally, the case is one in which the recitation of the facts 4 to an average member of the community would arouse his resentment 5 against the actor, and lead him to exclaim, ‘Outrageous!’”). 6 Defendants argue that plaintiffs fail to allege 7 sufficiently extreme and outrageous conduct, yet cite no 8 authority suggesting that preventing a parent from rendering aid 9 to her child who is suffering from a gunshot wound is, as a 10 matter of law, not “outrageous.” Whether defendants’ conduct was 11 sufficiently “outrageous” to support a claim for IIED is a 12 question of fact, and therefore inappropriate for resolution at 13 the motion to dismiss stage. See Gonero v. Union Pac. R. Co., 14 No. 2:09-cv-2009 WBS JFM, 2009 WL 3378987, at *10 (E.D. Cal. Oct. 15 19, 2009). Accordingly, the court will deny the motion to 16 dismiss plaintiff’s tenth claim for IIED. 17 B. Negligence (Eleventh Claim) 18 “The elements of a negligence cause of action are: (1) 19 a legal duty to use due care; (2) a breach of such legal duty; 20 (3) the breach was the proximate or legal cause of the resulting 21 injury; and (4) actual loss or damage resulting from the breach 22 of the duty of care.” Megargee v. Wittman, 550 F. Supp. 2d 1190, 23 1209 (E.D. Cal. 2008) (O’Neill, J.). 24 1. F.R. 25 Defendants argue that no duty was owed to F.R. While 26 the California Supreme Court has not opined on the matter, the 27 Ninth Circuit has concluded that California law likely imposes a 28 duty of care upon a law enforcement officer with respect to an 1 individual “in his custody in need of immediate medical 2 attention.” See Frausto v. Dep’t of Cal. Highway Patrol, 53 Cal. 3 App. 5th 973, 993 (1st Dist. 2020) (citing Winger v. City of 4 Garden Grove, 806 F. App’x 544, 546 (9th Cir. 2020)). Plaintiffs 5 allege that the F.R. was in custody and in need of urgent medical 6 attention. (See Compl. ¶¶ 17, 28, 31.) The court therefore 7 concludes that plaintiffs have sufficiently alleged that 8 defendants owed F.R. a duty of care. 9 2. Lori Rosiles 10 Ms. Rosiles relies on the “bystander” theory of 11 negligent infliction of emotional distress. To state such a 12 claim, Ms. Rosiles must allege, inter alia, that she “‘was 13 present at the scene of the injury producing event at the time it 14 occurred and was then aware that it was causing injury to the 15 victim.” See Martin v. Cal. Dep’t of Veterans Affs., 560 F.3d 16 1042, 1051 (9th Cir. 2009) (quoting Thing v. La Chusa, 48 Cal.3d 17 644, 257 (1989)) (alterations adopted). See also Mandel v. 18 Hafermann, 503 F. Supp. 3d 946, 983 (N.D. Cal. 2020) (“Under 19 California law, [negligent infliction of emotional distress] ‘is 20 not an independent tort,’ but an articulation of a general 21 negligence claim.”) (quoting Christensen v. Superior Ct., 54 Cal. 22 3d 868, 894 (1991)). 23 Here, plaintiffs allege that Ms. Rosiles arrived home 24 during the incident but, like F.R.’s other relatives, was 25 prevented from rendering aid to F.R. (See Compl. ¶ 34.) Based 26 on the allegations of the complaint, it seems all but certain 27 that Ms. Rosiles was aware of F.R.’s medical situation and the 28 alleged harm being done by the officers present. (See id. ¶ 28 1 (F.R.’s relatives “pleaded with Defendants . . . to move the 2 patrol vehicles and permit [F.R.] to be transported to the 3 hospital”); id. ¶ 34 (Ms. Rosiles “was prevented by Defendants . 4 . . from coming near where [F.R.] was lying on the ground”). The 5 complaint thus sufficiently alleges that Ms. Rosiles “was present 6 at the scene of the injury producing event at the time it 7 occurred and was then aware that it was causing injury to the 8 victim.” See Martin, 560 F.3d at 1051. The court therefore 9 concludes that Lori Rosiles has stated a claim for negligence. 10 Having concluded that both plaintiffs have stated 11 negligence claims, the court will deny the motion to dismiss the 12 eleventh claim for negligence. 13 C. Wrongful Death (Twelfth Claim) 14 “‘The elements of the cause of action for wrongful 15 death [under California Code of Civil Procedure § 377.60] are the 16 tort (negligence or other wrongful act), the resulting death, and 17 the damages, consisting of the pecuniary loss suffered by the 18 heirs.’” Deloney v. County of Fresno, No. 1:17-cv-01336 LJO EPG, 19 2019 WL 1875588, at *9 (E.D. Cal. Apr. 26, 2019) (citing Quiroz 20 v. Seventh Ave. Center, 140 Cal. App. 4th 1256, 1263 (6th Dist. 21 2006)). Defendants argue only that because plaintiffs have 22 failed to state a claim for negligence, the wrongful death claim 23 -– purportedly predicated on the negligence claim –- must also 24 fail. However, as the court already found, plaintiffs have 25 stated a claim for negligence. Accordingly, the court will deny 26 the motion to dismiss the twelfth claim for wrongful death. 27 IT IS THEREFORE ORDERED that defendants’ motion to 28 dismiss (Docket No. 7) be, and the same hereby is, GRANTED IN —e—— mI II IIE IE RII EI OIE EI OSI II EO mE

1 PART as follows. The fourth claim under the Rehabilitation Act, 2 the fifth claim under the Americans with Disabilities Act, and 3 the eighth claim under the California Constitution are DISMISSED 4 in their entirety. The first claim under the state-created 5 danger rule, second claim under the special relationship 6 exception, third claim under the Fourth Amendment, sixth claim 7 for interference with familial association under the Fourteenth 8 Amendment, and seventh claim for interference with familial 9 association under the First Amendment are DISMISSED only as 10 against the County of Yuba and Yuba County Sheriff’s Office. The 11 motion is DENIED in all other respects. If plaintiffs are not 12 satisfied to move forward in this action on their nine remaining 13 claims, they are given twenty days from the date of this Order to 14 file an amended complaint, provided they can do so consistent 15 | with this Order. ak. a bean, (hi. 16 Dated: September 19, 2023 WILLIAMB.SHUBB..... 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 24