1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 13 ENGELBRECHT, B. No. 2:23-cv-00286-JAM-CKD 14 Plaintiff, 15 v. ORDER GRANTING DEFENDANTS’

COUNTY OF PLACER AND PLACER

16 COUNTY OF PLACER; PLACER COUNTY SHERIFF’S DEPARTMENT’S COUNTY SHERIFF’S DEPARTMENT; 12(b)6 MOTION TO DISMISS 17 WAYNE WOO, PLACER COUNTY JAIL PLAINTIFF’S AMENDED COMPLAINT

SUPERVISOR JEFF SWEARINGEN, WITH PREJUDICE

18 N.P., PLACER COUNTY PRE-TRIAL

PROBATION SUPERVISOR DAVID

19 KEENAN, WELLPATH, and TYLER

SOGA, NURSE PRACTIONER,

20 PLACER COUNTY JAIL INFIRMARY, only in their official 21 capacities, and DOES 1 through 100, in their 22 individual and official capacities, 23 Defendants. 24 25 This matter is before the Court on Defendants County of 26 Placer and Placer County Sheriff’s Department’s (collectively, 27 “Defendants”) motion to dismiss Plaintiff B Engelbrecht’s 28 (“Plaintiff”) Amended Complaint (“Amended Complaint”). Mot. to 1 Dismiss (“Mot.”), ECF No. 22. Plaintiff’s Amended Complaint 2 alleges three claims under 42 U.S.C. section 1983 against 3 Defendants for unconstitutional medical care provided to 4 Plaintiff. See Am. Compl., ECF No. 18. For the reasons set forth 5 below, the Court GRANTS Defendants’ motion to dismiss with 6 prejudice.1 7 8 I. FACTUAL ALLEGATIONS 9 Since 2000, Plaintiff has had a variety of health 10 complications and rare diseases for which she received bi-weekly 11 intravenous infusions. Am. Compl. ¶¶ 7, 9, 11, 37. In 2017, 12 Plaintiff relocated to Texas where she continued to receive bi- 13 weekly infusions. Id. at ¶ 37. 14 Plaintiff was criminally charged in Placer County, 15 California and extradited from Texas to California on January 17, 16 2022. Id. at ¶¶ 3, 40. Plaintiff exhibited health concerns when 17 she arrived at Placer County Jail and was re-routed to a nearby 18 emergency room before being placed in custody. Id. ¶¶ 41, 42. 19 An ankle monitor was placed on Plaintiff that evening. Id. ¶ 43. 20 The following day, Defendant Tyler Soga (“Soga”), a nurse 21 practitioner for the Auburn Jail, examined Plaintiff and provided 22 medical care. Id. at ¶¶ 33, 51. Plaintiff informed Defendant 23 Soga of her unique medical condition and requirements for 24 infusion treatments at that time. Id. at ¶ 33. 25 /// 26

27 1This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for August 1, 2023. 1 After several court appearances and having contracted COVID- 2 19, Plaintiff was ultimately released from custody on 3 February 17, 2022, provided she: (1) remain in the Sacramento- 4 Roseville area pending her criminal matter; and (2) wear an ankle 5 monitor. Id. at ¶¶ 45-46. Plaintiff requested she be provided 6 the bi-weekly infusion treatment while in custody and at each 7 court appearance before her conditional release. Id. at ¶ 46. 8 Plaintiff was allowed to return to Texas following a bail 9 review on March 8, 2022, on the condition she remain subject to 10 ankle monitoring. Id. at ¶¶ 47-48. On April 19, 2022, Placer 11 County Probation removed Plaintiff’s ankle monitor, and she 12 resumed her bi-weekly infusion treatments in Texas. Id. at 13 ¶¶ 48, 59, 71, 74. 14 Plaintiff asserts the bi-weekly infusion treatments she 15 received in McKinney, Texas could not be replicated in a timely 16 manner in another location without putting her life at risk. Id. 17 at ¶ 42. Accordingly, Plaintiff claims Defendants’ failure to 18 secure her release from custody and prompt return to Texas was 19 unconstitutional. Id. at ¶¶ 42, 49, 52, 59, 71. Plaintiff 20 alleges Defendants’ actions and omissions caused her harm that 21 amounted to an intentional deprivation and deliberate 22 indifference towards Plaintiff’s constitutional right to medical 23 care. Id. 24 Defendants, collectively, now move to dismiss Plaintiff’s 25 Amended Complaint. See Mot. Plaintiff opposes the motion, 26 Opp’n, ECF No. 26, and Defendants replied. Reply, ECF No. 27. 27 /// 28 /// 1 II. OPINION 2 A. Legal Standard 3 Dismissal is appropriate under Rule 12(b)(6) of the Federal 4 Rules of Civil Procedure when a plaintiff’s allegations fail “to 5 state a claim upon which relief can be granted.” Fed. R. Civ. 6 P. 12(b)(6). “To survive a motion to dismiss [under 12(b)(6)], 7 a complaint must contain sufficient factual matter, accepted as 8 true, to state a claim for relief that is plausible on its 9 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 10 quotation marks and citation omitted). While “detailed factual 11 allegations” are unnecessary, the complaint must allege more 12 than “[t]hreadbare recitals of the elements of a cause of 13 action, supported by mere conclusory statements.” Id. In 14 considering a motion to dismiss for failure to state a claim, 15 the court generally accepts as true the allegations in the 16 complaint, construes the pleading in the light most favorable to 17 the party opposing the motion, and resolves all doubts in the 18 pleader’s favor. Lazy Y Ranch LTD. v. Behrens, 546 F.3d 580, 19 588 (9th Cir. 2008). “In sum, for a complaint to survive a 20 motion to dismiss, the non-conclusory ‘factual content,’ and 21 reasonable inferences from that content, must be plausibly 22 suggestive of a claim entitling the plaintiff to relief.” Moss 23 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 24 B. Analysis 25 1. Plaintiff Fails to Adequately Plead Monell Claims 26 Plaintiff asserts three claims under 42 U.S.C. section 1983 27 against Defendants. See Am. Compl. The first two claims arise 28 from alleged violations of the Eighth Amendment of the U.S. 1 Constitution, while the third claim is for intentional and 2 malicious infliction of emotional distress based on the harm 3 Plaintiff allegedly suffered as alleged in the first two claims. 4 Id. Defendants move to dismiss all three claims on the ground 5 that Plaintiff fails to state a claim for relief under 42 U.S.C. 6 section 1983 because Plaintiff has not alleged, and cannot 7 allege, that there was a custom, policy, or practice which was a 8 moving force behind the alleged constitutional violations under 9 Monell. Mot. at 4. 10 Municipalities and local governments may be held liable 11 under section 1983 for constitutional injuries inflicted through 12 a policy or custom. Monell v. Dep’t of Soc. Servs. of City of 13 New York, 436 U.S. 658, 694 (1978). “A policy is a deliberate 14 choice to follow a course of action made from among various 15 alternatives by the official or officials responsible for 16 establishing final policy with respect to the subject matter in 17 question.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 18 (9th Cir. 2012) (internal quotation marks and citation omitted). 19 “In addition, a local governmental entity may be liable if it 20 has a policy of inaction and such inaction amounts to a failure 21 to protect constitutional rights.” Lee v. City of Los Angeles, 22 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 23 F.2d 1470, 1474 (9th Cir. 1992) (internal quotation marks and 24 citation omitted). To assert a Monell claim, a plaintiff must 25 show: (1) they were deprived of a constitutional right; (2) the 26 defendant had a policy or custom; (3) the policy or custom 27 amounted to deliberate indifference to the plaintiff’s 28 constitutional right; and (4) the policy or custom was the 1 moving force behind the constitutional violation. Dougherty v. 2 City of Covina, 654 F.3d 892, 900 (9th Cir. 2011); Mabe v. San 3 Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). 4 While Monell claims are not subject to the heightened 5 pleading standard under Rule 9(b) of the Federal Rules of Civil 6 Procedure, Leatherman v. Tarrant Cnty. Narcotics Intel. & 7 Coordination Unit, 507 U.S. 163, 168 (1993), they “may not 8 simply recite the elements of a cause of action, but must 9 contain sufficient allegations of underlying facts to give fair 10 notice and to enable the opposing party to defend itself 11 effectively.” AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 12 631, 637 (9th Cir. 2012) (internal quotation marks and citation 13 omitted). “[T]he factual allegations [. . .] taken as true must 14 plausibly suggest an entitlement to relief, such that it is not 15 unfair to require the opposing part to be subject to the expense 16 of discovery and continued litigation.” Id. 17 Here, Plaintiff does not adequately allege a custom or 18 policy that was the moving force behind Plaintiff’s alleged 19 constitutional violations. Aside from an alleged single 20 incident of unconstitutional activity, Plaintiff does not 21 identify another instance where Defendants failed to treat her 22 rare disease. The absence of these necessary allegations causes 23 her claims to fail. Gillette v. Delmore, 979 F.2d 1342, 1347 24 (9th Cir. 1992); see also Trevino v. Gates, 99 F.3d 911, 918 25 (9th Cir. 1996) (“Liability for improper custom may not be 26 predicated on isolated or sporadic incidents; it must be founded 27 upon practices of sufficient duration, frequency and consistency 28 that the conduct has become a traditional method of carrying out 1 policy.”). 2 Although Plaintiff uses Monell buzzwords in her Amended 3 Complaint, she does not provide the necessary factual support as 4 to the policies, practices, customs, or usages to which she is 5 referring. Plaintiff also fails to provide any additional 6 information in her opposition as to how she could possibly cure 7 the deficiencies in her Amended Complaint. See Am. Compl. ¶¶ 4, 8 13, 17; Opp’n at 5, 9. (Generally, conclusory allegations 9 without any underlying facts to support them are insufficient. 10 See Starr, 652 F.3d at 1216.) In fact, Plaintiff concedes she 11 is unaware of whether Defendants’ actions or omissions were 12 attributable to any custom or policy, or to some other reason. 13 See Opp’n at 9 (“It is not known at this early stage if [actors 14 within the scope and ambit of Placer County activities were 15 deliberately indifferent] because they were intimidated by 16 Superior Court Judge Gazzaniga’s constant minimization, if not 17 disdain, for providing the appropriate care of the Plaintiff, or 18 for some other reason. That is the purpose of formal 19 discovery.”). 20 Plaintiff relies on McGuckin v. Smith, 974 F.2d 1050 (9th 21 Cir. 1992)2 and Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006) to 22 support her position that her Monell claims are sufficiently 23 pleaded. Opp’n at 10. Both cases are inapposite here: McGuckin 24 and Jett do not address a municipality’s liability under section 25 1983, and those cases do not relieve Plaintiff of her obligation 26 to Identify in her Amended Complaint the policy or custom which 27 2McGuckin was overruled by WMX Techs., Inc. v. Miller, 104 F.3d 28 1133 (9th Cir. 1997) on grounds not relevant here. 1 caused the violation of her constitutional rights. 2 Because Plaintiff has failed to allege sufficient facts 3 demonstrating a pattern, practice, or custom under Monell, 4 Defendants’ motion to dismiss Plaintiff’s claims is GRANTED.3 5 2. Defendants’ Motion to Dismiss is Granted With 6 Prejudice As Leave to Amend Would Be Futile 7 Granting or denying a request for leave to amend is within 8 the discretion of the District Courts. Foman v. Davis, 371 U.S. 9 178, 182 (1962). While leave to amend a complaint should be 10 freely given, id., “[l]eave need not be granted where the 11 amendment of the complaint . . . constitutes an exercise in 12 futility. . . .” (Ascon Properties, Inc. v. Mobil Oil Co., 866 13 F.2d 1149, 1160 (9th Cir. 1989). Dismissal without leave to 14 amend is proper if it is clear that the complaint could not be 15 saved by any amendment. Intri-Plex Techs., Inc. v. Crest Grp., 16 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007). 17 Based on the allegations in the Amended Complaint and 18 Plaintiff’s opposition, it does not appear that Plaintiff can 19 support—with specific facts and allegations—that Defendants had 20 a custom or policy which caused a constitutional violation in 21 this case. As Defendants note, Plaintiff acknowledges she is 22 3The Court makes this ruling without considering the propriety of 23 Plaintiff’s third claim brought under section 1983, entitled “COUNT THREE—42 U.S.C. § 1983 Intentional and Malicious 24 Infliction of Emotional Distress.” Am. Compl. at 21. Regardless of whether this claim can properly be brought under section 1983, 25 Plaintiff has nevertheless failed to allege that a custom or policy was the moving force behind the alleged constitutional 26 violations. Therefore, this claim fails as a matter of law for 27 the reason identified in Defendants’ motion and is resolved without further addressing the viability of this claim as 28 alleged. 1 unaware whether Defendants operated according to a custom or 2 policy that was the moving force behind constitutional 3 violations. See Opp’n at 9 (“At this time, it is not known

4 whether the policy or custom and usage failure to act and care 5 for the Plaintiff with respect to this clearly rare and 6 dangerous disease, occurred within Wellpath, or within the 7 Sheriff’s Office, or both.”) d. at 5. ; i 8 Even though Plaintiff states that she has discovered “new 9 facts inferring constitutional violations within the ambit of 10 Placer County,” Opp’n at 11, she does not reveal what she has 11 discovered, let alone the basis for the inference. More 12 importantly, Plaintiff claims these undisclosed new facts and 13 “revelations” would support the potential liability of those 14 individuals involved in Plaintiff’s alleged harm. Notably, 15 Plaintiff does not contend that such facts would also reveal the 16 existence of a longstanding custom or policy of Defendants which 17 was the moving force behind her alleged constitutional 18 violations. Opp’n at 6-7, 11. Plaintiff has twice demonstrated 19 the inability to sufficiently plead a Monell claim. She is not 20 entitled to a third attempt.4 21 /// 22 /// 23 24 4The Court does not construe Plaintiff’s opposition to the motion to dismiss as a request for leave to file a Second Amended 25 Complaint, given Plaintiff’s stated intention to file a separate motion for leave in the future. Opp’n at 11. To the extent 26 Plaintiff does seek leave to amend the Amended Complaint within 27 her opposition, the Court will not consider the request because it is improperly made. Local Rule 137(c). 28 ee IEEE EIDE III III DE IRISH EINE OO OIE EN eee

1 The Court finds that further amendment would be an exercise 2 in futility, Ascon Properties, Inc., 866 F.2d at 1160, and 3 therefore GRANTS Defendants’ motion to dismiss all three claims 4 WITH PREJUDICE. 5 6 Til. ORDER 7 For the reasons set forth above, Defendants’ County of 8 Placer and Placer County Sheriff’s Department’s motion to dismiss 9 is GRANTED WITH PREJUDICE. 10 IT IS SO ORDERED. 11 Dated: September 20, 2023 12 A as

JOHN A. MENDEZ

14 SENIOR UNITED*STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10