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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

11 ROB BOUSMAN, individually and as Case No.: 3:23-cv-1648-W-JLB 12 successor-in-interest to his deceased son, 13 JAMES BOUSMAN, ORDER GRANTING IN PART 14 Plaintiffs, AND DENYING IN PART

MOTION TO DISMISS [DOC. 4]

v. 15 AND GRANTING REQUEST FOR COUNTY OF SAN DIEGO, and DOES 16 1-25, inclusive JUDICIAL NOTICE [DOC. 5-1] 17 Defendants. 18 19 Pending before the Court is the Defendant County of San Diego’s (the “County”) 20 motion to dismiss ([Doc. 4], “Motion”) Plaintiff Rob Bousman’s (“Plaintiff”) Complaint 21 ([Doc. 1], “Complaint”) in its entirety. In his opposition ([Doc. 5], “Opposition”), 22 Plaintiff requests that the Court take judicial notice of an investigative report created by 23 the County of San Diego’s Citizens’ Law Enforcement Review Board. ([Doc. 5-1], 24 “RJN”.) Defendant replied ([Doc 6], “Reply”) and opposes the RJN ([Doc. 7], “RJN 25 Opposition”). 26 27 28 1 The Court decides the matter on the papers submitted and without oral argument. 2 See Civ. R. 7.1(d)(1). For the following reasons, the Court GRANTS IN PART and 3 DENIES IN PART the Motion. The Court also GRANTS the RJN. 4 I. RELEVANT BACKGROUND 5 This case arises from the death of Plaintiff’s son, James Bousman (“Decedent”), 6 while in the custody of the San Diego County Sheriff’s Department. (Complaint at ¶ 5.) 7 As alleged, Decedent was incarcerated in the Vista Detention Facility of the San Diego 8 County Sherriff’s Department. There, on July 27, 2022, James Bousman died of “an 9 overdose of . . . dangerous narcotic drugs, including methamphetamine and fentanyl, 10 and/or some other dangerous narcotic drugs . . . .” (Id. at ¶ 24.) 11 Plaintiff now brings this case individually and as Decedent’s successor-in-interest 12 against: (1) the County; (2) Does 1–12 (whom Plaintiff alleges “are sworn peace officers 13 and/or deputy sheriffs and/or Custodial Officers and/or Special Officers and/or police 14 officers and/or supervisors and/or investigators and/or Special Officers and/or Sheriff’s 15 Aids and/or Nurses and/or Doctors and/or other health officials and/or dispatchers and/or 16 some other public officers, officials or employees of defendant COUNTY and/or some 17 other public entity”); and (3) Does 13–25 (whom Plaintiff alleges “are supervisors and 18 policy-making officials, including the Sheriff of the County of San Diego, the 19 Undersheriff of San Diego County, the Sheriff’s Assistant Sheriffs, Commanders, 20 Captains, Lieutenants, Sergeants, Detectives and/or other Supervisory personnel 21 employed by COUNTY and/or the County Executive Officer and/or Members of the 22 Board of Supervisors of San Diego County, and/or Doctors and/or Nurses and/or other 23 County Health Personnel / Officers / Officials and other County Officers / Officials”). 24 (Id. at ¶¶ 7–9.) 25 Plaintiff’s Complaint is no model of clarity. Claims 1 and 2 assert that Does 1–12 26 violated Decedent’s 8th Amendment rights (which protect post-conviction detainees from 27 cruel and unusual punishment) in contravention of 42 U.S.C. § 1983 (“Section 1983”). 28 (Id. at ¶¶ 16–44.) See Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 1 2016). The Court understands the alleged 8th Amendment violations to essentially break 2 down into two separate categories of conduct. First, Plaintiff complains that Does 1–12 3 “proximately caused” Decedent’s death because they either: (a) “sold or otherwise 4 provided” Decedent with dangerous narcotics; (b) knowingly allowed other inmates to 5 provide Decedent with dangerous narcotics; (c) were bribed by “other inmates” to permit 6 the sale or distribution of dangerous narcotics within the Vista Detention Facility; or (d) 7 were bribed by “persons who were not inmates” to allow the sale of dangerous narcotics 8 within the Vista Detention Facility (collectively, the “Provided Narcotics Theory”). 9 (Complaint at ¶¶ 18–21, 33–34.) Second, Plaintiff complains that Does 1–12 are also 10 “proximately” responsible for Decedent’s death because: after Decedent’s overdose 11 began on July 26, 2022, Does 1–12 “saw [Decedent] collapsed in his jail cell, in obvious 12 severe medical distress” during their “jail cell safety checks” and yet allowed him to 13 “grovel[] on his jail cell floor for . . . upwards of several hours” instead of immediately 14 summoning medical care (the “Failure to Summon Care Theory”). (Id. at ¶¶ 8, 36–40.) 15 Confusingly, Claims 3, 4, and 5 also assert Section 1983 claims against Does 1–12 16 for the Provided Narcotics Theory and Failure to Summon Care Theory. (Id. at ¶¶ 45– 17 89.) The only difference being that the constitutional rights allegedly violated in Claims 18 3, 4, and 5 arise under the 14th Amendment (which protects pre-trial detainees from 19 suffering injuries while in custody). See Castro, 833 F.3d 1060 at 1067–68. The 20 Complaint does not make clear Decedent’s conviction status at the time of his death or 21 why Plaintiff is asserting both post-conviction 8th Amendment claims and pre-trial 14th 22 Amendment claims over the same conduct. 23 Next, Claims 6 and 7 assert Section 1983 claims against the County and Does 13– 24 25 under Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978) 25 (“Monell”) for having a “longstanding custom and practice” of: (a) “fail[ing] to discipline 26 and/or terminate” jail staff involved in the conduct described by the Provided Narcotics 27 Theory; and (b) failing to adequately train jail staff to identify when inmates are 28 “suffering from severe medical distress” and to “immediately summon medical care” for 1 said inmates (i.e., to prevent situations like the Failure to Summon Care Theory). 2 (Complaint at ¶¶ 90–126.) Plaintiff does not specify whether the 8th or 14th Amendment 3 forms the basis of the Monell claims. 4 Despite being styled as separate claims for relief, Claims 8, 9, and 10 all 5 effectively assert state law negligence claims against the County and Does 1–25. (See id. 6 at ¶¶ 127–87.) Specifically, the claims state that: (a) the conduct of Does 1–12 (via both 7 the Provided Narcotics and the Failure to Summon Care Theories) constituted negligence 8 that “proximately caused” Decedent’s death; and (b) the County’s and Does 13–25’s 9 failure to discipline and train jail staff also constituted negligence that proximately caused 10 Decedent’s death by allowing both theories of liability to occur. (See id. at ¶¶ 127–87.) 11 Lastly, Claim 11 asserts a claim under California Civil Code § 52.1 (the “Baine 12 Act”) against the County and Does 1–25 for acting with “deliberate indifference . . . to 13 [Decedent’s] constitutional rights” regarding the same conduct and under essentially the 14 same theories as those described in the state law negligence claims. (See id. at ¶¶ 188– 15 91.) 16 The County moves to dismiss the Complaint, arguing that: (1) the identities of 17 Does 1–25 are not pled with the requisite specificity; (2) it fails to meet the pleading 18 standards of Federal Rules of Civil Procedure 8 and 12(b)(6); (3) Monell claims cannot be 19 asserted against individual defendants and the Complaint fails to allege sufficient facts to 20 establish a Monell claim against the County; (4) Plaintiff’s federal law claims are 21 precluded by qualified immunity; (5) the Complaint fails to state a valid claim of 22 negligence under California law or, alternatively, the County is immune under California 23 law; and (6) Plaintiff’s Bane Act claim fails because the Complaint does not allege any 24 affirmative interference with Decedent’s constitutional rights or, alternatively, the County 25 is immune under California law. 26 II. LEGAL STANDARD 27 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion 28 to dismiss for failing “to state a claim upon which relief can be granted.” FED. R. 1 CIV. P. 12(b)(6) (“Rule 12”). A motion to dismiss under Rule 12(b)(6) tests the 2 complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 3 581 (9th Cir. 1983). A complaint may be dismissed as a matter of law either for 4 lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 5 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 6 Additionally, in evaluating the motion, the Court must assume the truth of all 7 factual allegations and must “construe them in light most favorable to the 8 nonmoving party.” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). 9 To survive a motion to dismiss, a complaint must contain “a short and plain 10 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. 11 P. 8(a)(2) (“Rule 8”). The Supreme Court has interpreted this rule to mean that 12 “[f]actual allegations must be enough to raise a right to relief above the speculative 13 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). The allegations in 14 the complaint must “contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 16 (2009) (quoting Twombly, 550 U.S. at 570). While well-pled allegations in the 17 complaint are assumed true, a court is not required to accept legal conclusions 18 couched as facts, unwarranted deductions, or unreasonable inferences. Papasan v. 19 Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State Warriors, 266 F.3d 20 979, 988 (9th Cir. 2001). 21 Lastly, under Federal Rule of Evidence 201(b), courts may take judicial 22 notice of undisputed facts that are either (1) “generally known within the trial 23 court’s territorial jurisdiction” or (2) “can be accurately and readily determined 24 from sources whose accuracy cannot reasonably be questioned.” See Khoja v. 25 Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). “[P]ublic records 26 and government documents available from reliable sources on the internet such as 27 websites run by government agencies” count as “sources whose accuracy cannot be 28 [reasonably] questioned.” Dunsmore v. San Diego Cnty. Sheriff's Dep't, 2022 WL 1 3362279, at *2 (S.D. Cal. Aug. 15, 2022) (quoting U.S. ex rel. Modglin v. DJO 2 Global Inc., 48 F. Supp. 3d 1362, 1381 (C.D. Cal. 2014)); see Lee v. City of Los 3 Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting Mack v. S. Bay Beer 4 Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other 5 grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)) (“a 6 court may take judicial notice of ‘matters of public record.’”). However, whether a 7 source’s accuracy “cannot reasonably be questioned,” is “only part of the inquiry.” 8 Khoja, 899 F.3d at 999. The Court must also assess whether the facts at issue “can 9 be accurately and readily determined” from the source. Id. Thus, “[i]t is improper 10 to judicially notice a [document] when the substance of the [document] ‘is subject 11 to varying interpretations, and there is a reasonable dispute as to what the 12 [document] establishes.’” Id. at 1000. 13 III. DISCUSSION 14 A. Request for Judicial Notice 15 Plaintiff asks the Court to take judicial notice of an investigative report created by 16 the County of San Diego’s Citizens’ Law Enforcement Review Board (“CLERB”), which 17 details certain findings made by the CLERB regarding Decedent’s death (the “CLERB 18 Report”). (Opposition at 31–33; RJN at 16.) Specifically, Plaintiff asks the Court to take 19 notice of the CLERB Report’s findings that Decedent’s death was “preventable” insofar 20 as the County “failed to prevent” the “fentanyl [that] contributed to [Decedent’s] death” 21 from entering the Vista Detention Facility. (RJN at 1–2, 16–17.) In turn, the County 22 argues that the Court should not take judicial notice of the CLERB Report because: (1) 23 the CLERB reports are “not generally known within the trial court’s territorial 24 jurisdiction”; and (2) courts can only take judicial notice of “the fact that the [public] 25 records exist, not the facts stated within the [public] records.” (RJN Opposition at 2–3.) 26 First, the County is incorrect that the Court cannot take judicial notice of the 27 CLERB Report on the grounds that it is “not generally known within the trial court’s 28 territorial jurisdiction.” As cases cited by the County show, CLERB reports are judicially 1 noticeable under the “can be accurately and readily determined from sources whose 2 accuracy cannot reasonably be questioned” prong of Federal Rule of Evidence 201(b). 3 Dunsmore, 2022 WL 3362279, at *2 (finding that a CLERB report is a source whose 4 accuracy cannot reasonable be questioned). Indeed, the CLERB Report is a public record 5 available on a government website—specifically the County’s own website1—and 6 therefore qualifies as a source whose “accuracy cannot reasonably be questioned.” See, 7 e.g., U.S. ex rel. Modglin, 48 F. Supp. 3d at 1381 (collecting cases), aff'd sub nom. United 8 States v. DJO Glob., Inc., 678 F. App'x 594 (9th Cir. 2017) (“Under Rule 201, the court 9 can take judicial notice of ‘[p]ublic records and government documents available from 10 reliable sources on the Internet,” such as websites run by governmental agencies.’”). 11 Second, the County’s argument that courts categorically may never take judicial 12 notice of facts contained within public records (only that the public records “exist”) 13 overstates Ninth Circuit precedent. As the Ninth Circuit has made clear, courts may take 14 judicial notice of facts contained within public records if said facts “can be accurately and 15 readily determined” from the source. Khoja, 899 F.3d at 999. Unlike the documents at 16 issue Khoja, the CLERB Report unambiguously concluded that fentanyl “contributed to 17 [Decedent’s] death” inside the Vista Detention Facility and that the County “failed to 18 prevent” said fentanyl from entering Vista Detention Facility. (RJN at 16–17.) Such 19 findings are not “subject to varying interpretations” and at no point does the County point 20 to which of these findings, if any, it actually disputes. (See id. at 2–3.) At the same time, 21 it is of little consequence whether the Court takes judicial notice of these findings in that 22 they are entirely duplicative of the factual allegations in the Complaint (which the Court 23 must assume as true for a motion to dismiss). (Compare id. with Complaint at ¶ 24. [“As 24 a result of the distribution of dangerous narcotic drugs, including . . . fentanyl . . . 25 26 1COUNTY OF SAN DIEGO LAW ENFORCEMENT REVIEW BOARD, CASES FOR SUMMARY HEARING 27 FOR OCTOBER 17, 2023 at 10 (last visited Apr. 3, 2024), https://www.sandiegocounty.gov/content/dam/sdc/clerb/docs/agendas/101723%20Regular%20M 28 1 [Decedent,] while he was incarcerated as an inmate at the Vista Detention Facility . . . 2 suffered an overdose . . . .”].) 3 Accordingly, the Court grants Plaintiff’s request and takes judicial notice of the 4 CLERB Report’s findings that Decedent acquired and consumed the fentanyl that 5 contributed to his death while in the Vista Detention Facility. 6 B. Motion to Dismiss 7 1. The Propriety of Doe Defendants in Federal Court 8 The County argues, in a somewhat conclusory manner, that Does 1–25 must 9 be dismissed because the Complaint does not allege sufficient facts regarding the 10 identity of the Does 1–25 or how each Doe was personally involved in violating 11 Decedent’s constitutional rights. (Motion at 10.) Plaintiff in turn argues that the 12 County has “no standing to seek dismissal of the action as to the nonmoving 13 defendants.” (Opposition at 15, 25.) 14 As a preliminary matter, the Court disagrees with Plaintiff’s contention that 15 the County lacks standing to move to dismiss Does 1–25. First, the case Plaintiff 16 cites for the proposition that “moving defendants, obviously, [have] no standing to 17 seek dismissal of the action as to the nonmoving defendants” is distinguishable. 18 (Id. at 15.) In Mantin v. Broad. Music, Inc., the Ninth Circuit held that six of 19 thirty-four named defendants did not have standing to seek the dismissal of all 20 thirty-four named defendants for failure to state a claim under Rule 12(b)(6). 248 21 F.2d 530, 531 (9th Cir. 1957). Mantin made no reference to Doe or unnamed 22 defendants. Second, a number more recent federal court decisions have made clear 23 that named defendants may properly seek the dismissal of Doe defendants. See, 24 e.g., Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (reaching the 25 merits of named defendant’s motion to dismiss Doe defendants); Hernandez v. San 26 Bernardino Cnty., 2023 WL 3432206, at *3 (C.D. Cal. Jan. 26, 2023) (same); 27 Mendoza v. Cnty. of San Bernardino, 2020 WL 2066142, at *3 (C.D. Cal. Feb. 21, 28 1 2020) (same); Lak v. California Dep't of Child Support Servs., 2017 WL 6541922, 2 at *1 n.1 (C.D. Cal. Dec. 21, 2017) (same); see also Vuz v. Dcss III, Inc., 2020 WL 3 4366023, at *18 (S.D. Cal. July 30, 2020) (“Courts have dismissed complaints as 4 to all defendants, even where only a few defendants move to dismiss, where 5 defendants were similarly situated and plaintiff had ample notice and opportunity 6 to oppose the motion to dismiss or where the non-moving defendant was only sued 7 because it was alleged to have controlled the defendant whose dismissal motion 8 was granted.”) (emphasis added). 9 While the Federal Rules of Civil Procedure do not explicitly allow the 10 naming of fictious or anonymous parties, “where the identity of the alleged 11 defendant is not known prior to the filing of a complaint, the plaintiff should be 12 given an opportunity through discovery to identify the unknown defendants, unless 13 it is clear that discovery would not uncover the identities, or that the complaint 14 would be dismissed on other grounds.” Hernandez, 2023 WL 3432206, at *3 15 (quoting Wakefield, 177 F.3d at 1163). 16 Still, a “Section 1983 action must allege how each individual defendant 17 directly participated in the violation of the plaintiff’s rights.” Hernandez, 2023 18 WL 3432206, at *3. Thus, while a plaintiff “may refer to unknown defendants as 19 Defendant John Doe 1, John Doe 2, John Doe 3 and so on . . . he must allege 20 specific facts showing how each particular doe defendant violated his rights.” 21 Keavney v. Cnty. of San Diego, 2020 WL 4192286, at *4 (S.D. Cal. July 21, 2020). 22 The reason behind these requirements is to give named defendants like the County 23 “crucial notice of the nature of the claims” at issue. Mendoza, 2020 WL 2066142, 24 at *4 (holding that the pleadings must be “sufficient to describe the involvement” 25 of Doe defendants and to put “the County on notice of the nature of the claim 26 against it.”). 27 28 1 a) Does 1–12 2 Here, the Complaint alleges that Does 1–12 are “sworn peace officers and/or 3 deputy sheriffs and/or Custodial Officers and/or Special Officers and/or police 4 officers and/or supervisors and/or investigators and/or Special Officers and/or 5 Sheriff’s Aids and/or Nurses and/or Doctors and/or other health officials and/or 6 dispatchers and/or some other public officers, officials or employees of defendant 7 COUNTY and/or some other public entity.” (Complaint at ¶ 8.) 8 First, according to the Plaintiff’s Failure to Summon Care Theory, these 9 individuals were working at the Vista Detention Facility on July 26, 2022, “saw” 10 Decedent “collapsed in his jail cell” and yet left him “grovel[ing]” on the floor in 11 “serious and obvious medical” distress for “upwards of several hours” instead of 12 immediately summoning medical care. (Id. at ¶¶ 36–37.) 13 Second, according to Plaintiff’s Provided Narcotics Theory, these same 14 individuals are also the ones who “sold or otherwise provided” Decedent with the 15 dangerous narcotics, or alternatively “kn[ew]” of and allowed other inmates to 16 provide Decedent with the dangerous narcotics—possibly because they were being 17 bribed. (Id. at ¶¶ 18–21.) 18 As in Mendoza, these allegations are sufficient to describe the involvement 19 of Does 1–12 and to put the County on notice of the nature of the claims at issue. 20 2020 WL 2066142, at *4. While the County insists that Plaintiff must plead even 21 more specific facts regarding Does 1–12, requiring Plaintiff to do so here would be 22 unreasonable, especially considering Plaintiff’s contention that the County has not 23 provided its investigative report regarding Decedent’s death to Plaintiff (an 24 assertion that County does not dispute in its Reply). (Opposition at 24.) 25 The Complaint makes it clear enough that Does 1–12 are the Vista Detention 26 Facility staff who were responsible for conducting “jail cell safety checks” at 27 Decedent’s cell on July 26 and 27, 2022 (staff whose true identities are 28 undoubtedly known to the County). (Complaint at ¶ 36.) Assuming the above 1 allegations to be true, as the Court must, it is not clear what additional facts 2 Plaintiff would be required to allege in order to sufficiently identify the actors. 3 Plaintiff “should be given an opportunity through discovery to identify the 4 unknown defendants.” Wakefield, 177 F.3d at 1163; Hernandez, 2023 WL 5 3432206, at *3. To deny Plaintiff this opportunity would effectively grant the 6 County’s jail staff immunity from all wrongful death suits, in that almost no 7 successor in interest would ever be able to allege sufficient facts against Doe 8 defendants in such cases because the decedents cannot identify the allegedly 9 responsible jail staff and the County apparently refuses to do so. 10 b) Does 13–25 11 The Complaint alleges that Does 13–25 are “supervisors and policy-making 12 officials, including the Sheriff of San Diego County, the Undersheriff of San Diego 13 County, the Sheriff’s Assistant Sheriffs, Commanders, Captains, Lieutenants, 14 Sergeants, Detectives and/or other Supervisory personnel employed by COUNTY 15 and/or the County Executive Officer and/or Members of the Board of Supervisors 16 of San Diego County.” (Complaint at ¶ 9.) 17 According to Plaintiff, these individuals are “supervisors and policy-making 18 officials” who have implemented a “longstanding custom and practice” of: (a) not 19 disciplining jail staff whom they “know[]” to be selling or allowing the sale of 20 dangerous narcotics within Vista Detention Facility; and (b) failing to adequately 21 train Vista Detention Facility staff on how to “recognize when jail inmates are 22 suffering form severe medical distress” and then “immediately summon medical 23 care.” (Id. at ¶¶ 100–04, 123–24 .) The Court later addresses whether each 24 individual claim against Does 13–25 is proper (including whether the conduct 25 complained of constitutes constitutional rights violations). For now, the 26 allegations against Does 13–25 are sufficient to describe their alleged involvement 27 and to put the County on notice of the nature of the claims at issue. That is, Does 28 13–25 are the Sheriff of San Diego County, the Undersheriff of San Diego County, 1 and the other policy-makers within the County of San Diego and the San Diego 2 County Sheriff’s Department responsible for the two “longstanding custom[s] and 3 practice[s]” alleged. 4 2. Section 1983 Claims (Claims 1–5) 5 The County next argues that Claims 1–5 (Section 1983 claims2 against Does 6 1–12) fail because they violate Rule 8’s “short and plain statement” requirement 7 and fail to state a claim upon which relief can be granted under Rule 12—in that 8 they assert contradictory pre-trial 14th Amendment and post-conviction 8th 9 Amendment claims. (Motion at 8–10.) The County also argues Claims 1–5 must 10 be dismissed, with respect to the Provided Narcotics Theory, for being conclusory 11 and failing to meet the “plausibility standard” set forth in Iqbal and Twombly. (Id. 12 at 8–10.) 13 First, the County is correct that Claims 1–5 are contradictory, in that— 14 without explanation—Claims 1 and 2 allege violations of Decedent’s 8th 15 Amendment rights (which protect post-conviction detainees from cruel and 16 unusual punishment) while Claims 3, 4, and 5 allege violations of Decedent’s 14th 17 Amendment rights (which protect pretrial detainees from injury while in custody) 18 regarding the same conduct. See Castro, 833 F.3d at 1067–68; Sanchez v. Cnty. of 19 Los Angeles, 2020 WL 9074714, at *3 (C.D. Cal. Apr. 28, 2020). However, as the 20 County acknowledges in its Motion, “it is permissible to plead in the alternative.” 21 (Motion at 9.) Indeed, Rule 8(d) explicitly permits Plaintiff’s contradictory 22 theories. FED. R. CIV. P. 8(d) (“A party may set out two or more statements of a 23 claim . . . alternatively or hypothetically . . . . If a party makes alternative 24

25 26 2 “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person 27 within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, 28 1 statements, the pleading is sufficient if any one of them is sufficient. . . . A party 2 may state as many separate claims or defenses as it has, regardless of 3 consistency.”) (emphasis added). Accordingly, the Complaint does not fail for 4 alleging contradictory 8th and 14th Amendment claims. 5 Second, the County’s assertion that Claims 1–5 must be dismissed with 6 respect to the Provided Narcotics Theory for failing to “articulate a single fact to 7 show how any of the [four alternative Provided Narcotics Theories]” are plausible 8 is without merit. (Motion at 9.) To be clear, Rule 8 “does not require ‘detailed 9 factual allegations.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 10 Instead, it demands that complaints merely “contain sufficient factual matter, [that 11 if] accepted as true . . . ‘state a claim for relief that is plausible on its face.’” Id. at 12 663 (quoting Twombly, 550 U.S. at 570). 13 As the County’s Motion acknowledges, the Complaint alleges “(1) that jail 14 staff sold or provided drugs to Decedent; (2) that inmates provided drugs to 15 Decedent while jail staff failed to stop them; (3) that inmates provided drugs to 16 Decedent while jail staff were paid by inmates to allow it to happen; or (4) that 17 inmates provided drugs to Decedent while jail staff were paid by non-inmates to 18 permit it to happen.” (Motion at 9 [citing Complaint at ¶¶ 18–21].) Yet, the 19 County fails to articulate what exactly about these allegations are insufficient to 20 meet the plausibility standard of Iqbal and Twombly. Is it the County’s assertion 21 that it is simply not an 8th or 14th Amendment violation for jail staff to sell or to 22 knowingly allow the sale of dangerous narcotics to inmates (possibly because of 23 bribery)? If so, the County does not explicitly make that argument in its Motion 24 and fails to provide the Court with the authority to reach such conclusion. See 25 FED. R. CIV. P. 7(b)(1) (“A request for a court order must be made by motion. The 26 motion must . . . state with particularity the grounds for seeking the order . . . .”); 27 Levi Strauss & Co. v. Connolly, 2023 WL 2347433, at *8 (N.D. Cal. Mar. 2, 2023) 28 (“[Defendant] has not identified any pleading deficiency in [plaintiffs] claims and 1 therefore has not met his burden to show that no claim has been stated.”); Carlson 2 v. Colorado Ctr. for Reproductive Med., LLC, 2021 WL 5494273, at *3 (N.D. Cal. 3 Nov. 23, 2021) (finding that defendants’ conclusory arguments that plaintiffs’ 4 allegations did “not amount to any viable cause of action” were insufficient to 5 satisfy their burden to show that no claim had been stated). 6 With this in mind, the four above alternative theories are factual allegations 7 that state a plausible claim for relief. If it is true that jail staff selling or knowingly 8 allowing the sale of dangerous narcotics to inmates is unconstitutional (an issue 9 this Order does not decide one way or the other), then allegations such as 10 “[Decedent] was sold or otherwise provided dangerous narcotic drugs by DOES 1 11 through 12” or “DOES 1 through 12 . . . were being paid by said other inmates . . . 12 to permit them to sell and distribute said dangerous narcotic drugs at the jail” are 13 factual allegations that state a plausible claim for relief. (See Complaint at ¶¶ 18– 14 21.) Assuming these factual allegations are true, as it must, the Court is unsure 15 what additional facts Plaintiff could be expected to plead that fall short of holding 16 Plaintiff to the inapplicable, heightened “who, what, when, and where” pleading 17 requirements of Federal Rule of Civil Procedure 9. Accordingly, Claims 1–5 18 survive the County’s Motion. 19 3. Monell Claims (Claims 6 and 7) 20 Next, the County moves to dismiss Claims 6 and 7—Monell claims against 21 the County and Does 13–25 for failing to discipline and/or terminate jail staff 22 involved in conduct described by the Provided Narcotics Theory and for failing to 23 train jail staff to spot medical emergencies and summon medical care—on the 24 grounds that: (a) Monell claims cannot be pursued against individual defendants; 25 (b) Plaintiff has not alleged sufficient facts to show inadequate training of jail staff 26 regarding identifying medical emergencies and summoning medical care; (c) 27 Plaintiff has not alleged sufficient facts to show a Monell failure to discipline 28 1 and/or terminate claim regarding the Vista Detention Facility’s staff’s alleged 2 involvement in the Provided Narcotics Theory. (Motion at 12–14.) 3 Under Monell v. Dep't of Soc. Servs. of City of New York, municipalities 4 such as the County cannot be held vicariously liable under Section 1983 for the 5 actions of their employees. 436 U.S. at 692. Instead, “a municipality can be found 6 liable under § 1983 only where the municipality itself causes the constitutional 7 violation at issue.” City of Canton, Ohio v. Harris, 489 U.S. 378, 38 (1989) 8 (emphasis in original). 9 Thus, to be liable under Section 1983 for a Monell claim, Plaintiff must 10 show that either: (1) “a [municipal] employee committed the alleged constitutional 11 violation pursuant to a formal governmental policy or a longstanding practice or 12 custom which constitutes the standard operating procedure of the local 13 governmental entity”; (2) “the individual who committed the constitutional tort 14 was an official with final policy-making authority and that the challenged action 15 itself thus constated an act of official governmental policy”; or (3) “an official with 16 final policy-making authority ratified a subordinate’s unconstitutional decision or 17 action and the basis for it.” Mendoza, 2020 WL 2066142, at *6 (quoting Gillette v. 18 Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). 19 a) Application of Monell Claims to Individual 20 Defendants 21 Next, the Court addresses whether a Monell claim can be stated against 22 individual defendants, Does 13–25. “A Monell claim is, by definition, one brought 23 against a public entity alone.” Hernandez, 2023 WL 3432206, at *5 (citing 24 Monell, 436 U.S. at 689 n.55); see Patino v. Cnty. of Monterey, 2023 WL 375349, 25 at *4 (N.D. Cal. Jan. 24, 2023) (“Monell claims cannot be asserted against Moving 26 Parties in their individual capacities. Any Monell claims against Moving Parties in 27 their official capacities are duplicative of [plaintiff’s] Monell claims against [the 28 jail]. Accordingly, any Monell claims asserted against Moving Parties will be 1 dismissed without leave to amend.”); see also Sanchez, 2020 WL 9074714, at *4 2 (“a ‘suit against Sheriff Villanueva in his official capacity is equivalent to a suit 3 against County.’”). 4 Because Monell liability applies solely to entities and parties cannot be sued 5 for Monell claims in their individual capacities, the Court dismisses Claims 6 and 7 6 as to Does 13–25 with prejudice.3 7 b) Inadequate Training Regarding the Failure to 8 Summon Care Theory 9 The Complaint alleges that Does 13–25 “have known for many years now 10 that inmates at the Vista Detention Facility . . . have been overdosing on illicit 11 dangerous drugs . . . . [that inmate overdoses] have become frequent and recurring . 12 . . . [and yet still] failed to adequately train Vista Detention Facility . . . jail 13 personnel . . . on how to [1] recognize when jail inmates are suffering from severe 14 medical distress that requires immediate medical attention and care . . . [and] [2] to 15 immediately summon medical care for inmates who are suffering from severe 16 medical distress.” (Complaint at ¶¶ 122–23.) 17 Courts permit Monell claims to proceed against municipalities under failure 18 to adequately train theories “[i]n limited circumstances, [where] a local 19 government's decision not to train certain employees about their legal duty to avoid 20 violating citizens' rights may rise to the level of an official government policy for 21 purposes of § 1983.” Keith v. City of San Diego, 2023 WL 2347070, at *3 (S.D. 22 Cal. Mar. 3, 2023) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). In 23 such cases, plaintiffs are required to show that the municipality’s allegedly 24 inadequate training amounts to “deliberate indifference”—which is “a stringent 25 standard of fault, requiring proof that a municipal actor disregarded a known or 26

27 3 But see Hernandez, 2023 WL 3432206, at *4–5 (citing Starr v. Baca, 652 F.3d 1202, 1205–06 28 1 obvious consequence of his action.” Id. Because there is no vicarious or 2 respondeat superior liability for municipalities under Section 1983, a Monell claim 3 will only lie where policymakers were “on actual or constructive notice that a 4 particular omission in their training program causes employees to violate citizens’ 5 constitutional rights.” Id. Thus, “ [a] pattern of similar constitutional violations 6 by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate 7 indifference for purposes of failure to train.” Id. (emphasis added). 8 However, in some “narrow” circumstances, “the unconstitutional 9 consequences of failing to train could be so patently obvious that a [municipality] 10 could be liable under § 1983 without proof of a pre-existing pattern of violations.” 11 Connick, 563 U.S. at 64. Such “narrow” circumstances exist when, “in light of the 12 duties assigned to specific officers or employees, the need for more or different 13 training is so obvious, and the inadequacy so likely to result in the violation of 14 constitutional rights, that the policymakers of the city can reasonably be said to 15 have been deliberately indifferent to the need.” City of Canton, Ohio, 489 U.S. at 16 390. Yet, courts are understandably hesitant to find such “narrow” circumstances, 17 because such theories often “collapse[] into respondeat superior liability”—which 18 plainly does not exist under Section 1983. Horton by Horton v. Cty. of Santa 19 Maria, 915 F.3d 592, 603 (9th Cir. 2019). 20 Here, the only factual allegation showing a pattern of conduct similar to the 21 Failure to Summon Care Theory is the allegation that “failing to train jail officers . 22 . . [has] been happening ‘for many years now’ . . . .” (Opposition at 17 [quoting 23 Complaint at ¶ 123].) Such conclusory allegations that fail to point to any specific 24 similar prior incidents does not a “pattern” make. As such, the Complaint fails to 25 sufficiently allege a pattern of similar constitutional violations. 26 Plaintiff also asserts that the Failure to Summon Care Theory fits within the 27 “narrow” exception hypothesized in Connick. (Opposition at 16.) Except, the 28 Opposition does not apply this rule beyond quote the language of Connick. (Id.) 1 Plaintiff points to no specific factual allegations and makes no argument to 2 demonstrate how or why “the need for more or different training [regarding 3 spotting medical emergencies and summoning medical care was] so obvious, and 4 the inadequacy so likely to result in the violation of constitutional rights, that the 5 policymakers of the [County] can reasonably be said to have been deliberately 6 indifferent to the need.” (Id.) Allowing this Monell claim to proceed against the 7 County would amount to nothing more than holding the County vicariously liable 8 under Section 1983 for the alleged wrongdoings of its employees—which 9 controlling law precludes. Accordingly, the Complaint fails to state a failure to 10 train claim against the County. 11 c) Failure to Discipline or Terminate Staff Involved in 12 the Provided Narcotics Theory 13 The Complaint also alleges a Monell claim against the County on the 14 grounds that Does 13–25 have “known for many years now that . . . jail personnel 15 at the Vista Detention Facility, have been selling and/or distributing, and/or 16 otherwise facilitating the sale and/or distribution of, and/or have otherwise 17 condoning and/or permitting inmates to sell and/or distribute, dangerous illicit and 18 narcotic drugs, including methamphetamine, heroin and fentanyl, to inmates at the 19 Vista Detention Facility in San Diego County, State of California, and that many 20 inmates have died from the ingestion of such dangerous illicit and narcotic drugs” 21 yet have failed to “disciplin[e],” “terminat[e],” and/or prosecut[e]” them. 22 (Complaint at ¶ 103.) Additionally, the Complaint alleges that these officials 23 “covered-up the role of Vista Detention Facility personnel” in said deaths. (Id.) 24 Monell claims based on a municipalities’ alleged failure to discipline its 25 employees are “best understood as a claim of ratification.” Keith, 2023 WL 26 2347070, at *4 (citing Rabinovitz v. City of L.A., 287 F. Supp. 3d 933, 967 (C.D. 27 Cal. 2018) and Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003)). “To state 28 a cognizable claim based upon ratification, a plaintiff must allege an [that] official 1 with final policymaking authority approved a subordinate's action, as well as the 2 basis for the action.” Id. (citing Sheehan v. City & Cty. of San Francisco, 743 F.3d 3 1211, 1231 (9th Cir. 2014), rev'd in part on other grounds by City & Cnty. of San 4 Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015), and Paulos v. FCH1, LLC, 685 5 F. App'x 581, 582 (9th Cir. 2017)). In other words, “[t]he policymaker must have 6 knowledge of the constitutional violation and actually approve of it,” but a “mere 7 failure to discipline [a subordinate] does not amount to ratification of [the 8 subordinate’s] allegedly unconstitutional actions.” Id. (citing Lytle v. Carl, 382 9 F.3d 978, 987 (9th Cir. 2004) and Sheehan, 743 F.3d at 1231). The policymaker 10 must make “a deliberate choice to endorse” the subordinate’s actions. Sheehan, 11 743 F.3d at 1231. 12 Here, the Complaint’s conclusory allegation that Does 13–25 had “known 13 for many years” about the conduct of jail staff as described in the Provided 14 Narcotics Theory is not a factual allegation that a County policymaker was aware 15 of and approved of such conduct. Even if the Court were to accept this conclusory 16 allegation as true, it would still only show a “mere failure to discipline” jail staff, 17 not “a deliberate choice to endorse” the conduct. 18 Accordingly, the Court dismisses Claims 6 and 7 against the County. The 19 dismissal is with prejudice because amendment would be futile. 20 4. Qualified Immunity as to Federal Claims (Claims 1– 21 7) 22 The doctrine of “qualified immunity protects government officials ‘from 23 civil damages [resulting from federal law claims] insofar as their conduct does not 24 violate clearly established statutory or constitutional rights of which a reasonable 25 person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) 26 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see Venegas v. Cnty. of 27 Los Angeles, 153 Cal. App. 4th 1230, 1243 (2007) (“The doctrine of qualified 28 governmental immunity is a federal doctrine that does not extend to state tort 1 claims against government employees.”); Reese v. Cnty. of Sacramento, 888 F.3d 2 1030, 1040–41 (9th Cir. 2018) (holding that “qualified immunity is not available 3 for those [California state law] claims.”). Thus, when evaluating claims of 4 qualified immunity, courts consider: “(1) whether there has been a violation of a 5 constitutional right; and (2) whether that right was clearly established at the time of 6 the officer's alleged misconduct.” Reese, 888 F.3d at 1037. 7 Here, the County argues that the Complaint’s federal law claims (Claims 8 1–7) must be dismissed under the doctrine of qualified immunity because: “[t]he 9 Complaint fails to present a cognizable constitutional violation, fails to describe 10 how County employees violated such a right, and fails to show that such a right 11 was clearly established at the time.” (Motion at 14–15.) This quotation is the full 12 extent of the County’s argument regarding qualified immunity. 13 As explained previously, conclusory assertions—that fail to articulate the 14 specific argument the County is making or fail to provide the Court with any 15 relevant authority to assess such arguments—leave the Court with little choice but 16 to deny the Motion. Accordingly, Claims 1–7 survive the Motion on grounds of 17 qualified immunity. 18 5. State Law Negligence Claims and State Law 19 Immunity (Claims 8–10) 20 The Complaint pleads Claims 8, 9, and 10 as distinct state law claims. 21 Claim 8 is styled as a wrongful death claim under California Code of Civil 22 Procedure section 377.60. Claim 9 is styled as a negligence claim under California 23 Civil Code section 1714. Claim 10 is styled as a failure to provide medical care 24 claim under California Government Code section 845.6 claim. (Complaint at ¶¶ 25 127–87.) However, all of these claims assert negligence against the County and 26 Does 1–25 for all of the same conduct outlined above. (See Complaint at ¶¶ 144– 27 46, 164–66, 182–84.) As such, the Court addresses these claims together. 28 1 The County moves to dismiss the Complaint’s state law negligence claims 2 against it on the grounds that: (1) “a public entity is not liable for injury arising 3 from an act or omission except as provided by statute” (Cal. Gov’t Code § 815); 4 and (2) “[a] public entity is not liable for an injury to any prisoner” (Cal. Gov’t 5 Code § 844.6). (Motion at 15–16; Reply 11.) The County requests dismissal of the 6 state law negligence claims against Does 1–25. (See id.) 7 Section 377.60 of the California Code of Civil Procedure provides that 8 certain surviving persons (including parents) may file a civil suit against those 9 responsible for a decedent’s “wrongful or negligent” death. Patino, 2023 WL 10 375349, at *6 (citing Quiroz v. Seventh Ave. Ctr., 140 Cal. App. 4th 1256, 1263 11 (2006)). Section 1714 of the California Civil Code is the “general tort provision[]” 12 in California setting forth that each person has “a legal duty to act reasonably and 13 with due care under the circumstances with respect to their own actions”—i.e., to 14 not act negligently. Summerfield v. City of Inglewood, 96 Cal. App. 5th 983, 999 15 (2023); Shalghoun v. N. Los Angeles Cnty. Reg'l Ctr., Inc., 317 Cal. Rptr. 3d 641, 16 650 (2024), as modified on denial of reh'g (Feb. 22, 2024), review filed (Mar. 5, 17 2024). Section 820 of the California Government Code clarifies that this general 18 duty of care extends to public employees “to the same extent as a private person.” 19 And, under California Government Code section 815.2, “a public entity is liable 20 for injury proximately caused by an act or omission of an employee of the public 21 entity within the scope of his employment if the act or omission would . . . have 22 given rise to a cause of action against that employee or his personal 23 representative.” 24 However, California Civil Code section 1714’s general duty of care and 25 California Government Code section 815.2’s subsequent vicarious liability 26 provisions are partially modified by section 844.6 of the California Government 27 Code, which states that public entities are not liable for “injury to a prisoner.” 28 California Government Code section 844.6 goes on to clarify that “[n]othing in this 1 section exonerates a public employee from liability for injury proximately caused 2 by his negligent or wrongful act or omission.” Cal. Gov’t Code § 844.6 (emphasis 3 added). This provision is partially modified by section 845.6 of the California 4 Government Code, which states that “a public entity nor a public employee is 5 liable for injury proximately caused by the failure of the employee to furnish or 6 obtain medical care for a prisoner in his custody”—but that a “public employee, 7 and the public entity where the employee is acting within the scope of his 8 employment, is liable if the employee knows or has reason to know that the 9 prisoner is in need of immediate medical care and he fails to take reasonable 10 action to summon such medical care.” Cal. Gov’t Code § 845.6 (emphasis added). 11 Taken together, this California statutory scheme stands for the proposition 12 that: (1) public entities cannot be held liable for wrongfully or negligently injuring 13 prisoners4 but public employees can be5; unless (2) the prisoner’s injury resulted 14 from a failure to furnish medical care (in which case, neither the public employee 15 or public entity are liable)6; except (3) when the public employee knew or had 16 reason to know that the injured prisoner was in need of immediate medical care 17 and failed to take reasonable action to summon such medical care (in which case, 18 both the public employee and the public entity are liable)7. 19 Accordingly, Claims 8, 9, and 10 must be dismissed with prejudice against 20 the County with respect to: (a) the Provided Narcotics Theory; (b) the related 21 failure to discipline/terminate jail staff theory; and (c) the failure to adequately 22 train jail staff theory because they attempt to hold the County liable for the 23 allegedly wrongful and/or negligent death of Decedent in violation of section 844.6 24 of the California Government Code. However, Claims 8–10 proceed against the 25 26 4 Cal. Gov. Code § 844.6. 27 5 Id.; Cal. Gov. Code § 820. 6 Cal. Gov. Code § 845.6. 28 1 County, insofar as it would be vicariously liable for Does 1–12’s alleged failure to 2 reasonably summon immediate medical care under California Government Code 3 section 845.6. The Court expresses no opinion on the state law negligence claims 4 against Does 1–25 because the County did not move to dismiss Claims 8–10 5 against those defendants. (See Motion at 15–16.) 6 6. Bane Act Claim (Claim 11) 7 Lastly, the Court addresses the County’s challenge to the sufficiency of Claim 11, 8 alleging that the conduct of the County and Does 1–25 violated the Bane Act. 9 (Complaint at ¶¶ 188–91.) 10 The Bane Act creates civil liability for anyone who “interferes by threat, 11 intimidation, or coercion . . . with the exercise or enjoyment by any individual or 12 individuals of rights secured by the Constitution or laws of the United States, or of the 13 rights secured by the Constitution or laws of this state.” Cal. Civ. Code § 52.1. As such, 14 courts typically require Bane Act plaintiffs to allege “(1) interference with or attempted 15 interference with a state or federal constitutional or legal right, and (2) [that] the 16 interference or attempted interference was by threats, intimidation, or coercion.” 17 Sanchez, 2020 WL 9074714, at *9 (quoting Allen v. City of Sacramento, 234 Cal. App. 18 4th 41, 67 (2015)) (emphasis added). 19 Here, Plaintiff alleges that the County’s and Does 1–25’s conduct amounted to 20 “deliberate indifference to the serious and obvious risk to [Decedent’s]” constitutional 21 rights. (Complaint at ¶ 189.) The County moves to dismiss this claim against it on the 22 grounds that: (a) the County is immune from Bane Act claims over prisoner injuries 23 under section 844.6; and (b) that the conduct complained of consists only of “deliberate 24 indifference” towards Decedent’s safety (i.e., “inaction and failure to protect Decedent 25 from harm”), not threats, intimidation, or coercion. (Motion at 16–18.) The Court 26 addresses each challenge in turn. 27 28 1 a) State Law Immunity 2 The same state law immunity principles that apply to Plaintiff’s negligence claims 3 also apply to Plaintiff’s Bane Act claim. See O'Toole v. Superior Ct., 140 Cal. App. 4th 4 488, 504 (2006) (“[W]e reject plaintiffs' argument that [California’s statutory immunity] 5 is inapplicable to the Bane Act as a matter of law. . . . [A]bsent ‘a clear indication of 6 legislative intent that statutory immunity is withheld or withdrawn,’ a specific statutory 7 immunity applies to shield a public employee from liability . . . . [The Bane Act] contains 8 no indicia reflecting an intent that public employees may be sued despite a statutory 9 immunity that would otherwise apply.”); Spath v. Cnty. of Santa Clara, 669 F. Supp. 3d 10 835, 848 (N.D. Cal. 2023) (“On the face of the complaint, [Plaintiff’s] Bane Act claim, 11 negligence claim, and medical negligence claim under MICRA are barred . . . by [the 12 California Tort Claims Act].”); Galley v. Cnty. of Sacramento, 2023 WL 4534205, at *3 13 (E.D. Cal. July 13, 2023) (applying Section 845.6 to a Bane Act claim). 14 Therefore, the County is also immune from suit under the Bane Act regarding: (a) 15 the Provided Narcotics Theory; (b) the related failure to discipline/terminate jail staff 16 theory; and (c) the failure to adequately train jail staff theory—because they attempt to 17 hold the County liable for the allegedly wrongful death of a prisoner in violation of 18 Section 844.6. However, the County is not immune from the Bane Act insofar as it 19 would be vicariously liable for Does 1–12’s alleged failure to reasonably summon 20 immediate medical care under California Government Code section 845.6. The Court 21 expresses no opinion on the direct liability of Does 1–25 under the Bane Act, as the 22 County has not moved to dismiss Claims 11 against those defendants. 23 b) Deliberate Indifference 24 Next, the Court addresses whether Bane Act claims may be pursued by prisoners 25 under a theory of “deliberate indifference.” Courts have reasoned that since “deliberate 26 indifference is closer to intentional conduct [than unintentional conduct],” liability exists 27 under the Bane Act where the government official “knows of and disregards a substantial 28 risk to inmate health or safety.” M.H. v. Cnty. of Alameda, 90 F. Supp. 3d 889, 899 (N.D. 1 Cal. 2013) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)); see Scalia v. Cnty. of 2 Kern, 308 F. Supp. 3d 1064, 1084 (E.D. Cal. 2018) (“[A] prison official's deliberate 3 indifference to serious medical needs is a coercive act [under the Bane Act] that rises 4 above mere negligence . . . .”); Cravotta v. Cnty. of Sacramento, 2024 WL 645705, at *13 5 (E.D. Cal. Feb. 15, 2024) (“[A] Bane Act claim may be based on deliberate indifference 6 to serious medical needs.”); Est. of Neil v. Cnty. of Colusa, 2022 WL 4291745, at *9 7 (E.D. Cal. Sept. 16, 2022) (“Courts have also found that prisoners who sufficiently allege 8 [that] officials acted with deliberate indifference to their medical needs in violation of 9 their constitutional rights also adequately allege a Bane Act violation.”). In the context of 10 deliberate indifference to the medical needs of prisoners, courts have held that a 11 prisoner’s Bane Act claim need simply allege “(a) a purposeful act or failure to respond 12 to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 13 M.H. v. Cnty. of Alameda, 90 F. Supp. 3d at 896 (quoting Jett v. Penner, 439 F.3d 1091, 14 1096 (9th Cir. 2006)); see Lapachet v. California Forensic Med. Grp., Inc., 313 F. Supp. 15 3d 1183, 1195 (E.D. Cal. 2018) (emphasis added) (“Plaintiffs bringing Bane Act claims 16 for deliberate indifference to serious medical needs must only allege prison officials 17 ‘knowingly deprived [them] of a constitutional right or protection through acts that are 18 inherently coercive and threatening,’ such as housing a prisoner in an inappropriate cell, 19 failing to provide treatment plans or adequate mental health care, and failing to provide 20 sufficient observations.”); Cornell v. City & Cnty. of San Francisco, 17 Cal. App. 5th 21 766, 802 n.31, as modified (Nov. 17, 2017) (citing with approval M.H. v. County of 22 Alameda’s holding that a Bane Act claim can stated based on allegations of “deliberate 23 indifference to prisoner's medical needs.”). While “mere negligence in diagnosing or 24 treating a medical condition” does not give rise to a Bane Act claim, “prison officials or 25 practitioners ‘deny[ing], delay[ing], or intentionally interfere[ing] with medical 26 treatment” does. M.H., 90 F. Supp. 3d at 896 (quoting Hutchinson v. United States, 838 27 F.2d 390, 394 (9th Cir.1988)). 28 1 The Complaint alleges that Does 1–12 “saw [Decedent] collapsed in his jail cell, in 2 obvious severe medical distress” during their “jail cell safety checks,” yet allowed him to 3 “grovel[] on his jail cell floor for . . . upwards of several hours” instead of immediately 4 summoning medical care. (Complaint at ¶¶ 8, 36–40.) Such allegations illustrate a 5 paradigmatic example of “know[ing] of and disregard[ing] a substantial risk to inmate 6 health or safety.” M.H., 90 F. Supp. 3d at 896 (finding plaintiffs adequately alleged a 7 Bane Act claim against defendants where decedent’s death resulted from “a purposeful 8 act or failure to respond to a prisoner's pain or possible medical need . . . .”). To the 9 extent that the County may be vicariously liable for the conduct of Does 1–12 under 10 California Government Code section 845.6, the Complaint states a valid Bane Act claim 11 against the County. 12 Accordingly, Claim 11 must be dismissed with prejudice against the County 13 regarding the Provided Narcotics Theory, the related failure to discipline/terminate jail 14 staff theory; and the failure to adequately train jail staff theory. However, Claim 11 15 remains against the County to the extent it could be vicariously liable for the Failure to 16 Summon Care Theory. Claim 11 also proceeds against Does 1–25, given that the Motion 17 does not seek their dismissal. 18 7. Leave To Amend 19 In its Opposition, Plaintiff asks the Court for leave to amend the Complaint if the 20 Motion is granted. (Opposition at 25.) Under Federal Rule of Civil Procedure 15(a)(2), 21 courts “should freely give leave [to amend] when justice so requires.” Furthermore, 22 leave to amend “should be granted with ‘extreme liberty’” and only be denied when “it is 23 clear . . . that the complaint could not be saved by any amendment.” Moss v. U.S. Secret 24 Serv., 572 F.3d 962, 972 (9th Cir. 2009). 25 Considering this circuit’s preference for permitting amendment where not 26 futile, the Court cannot conclude that Plaintiff could not possibly allege additional 27 facts to state valid Monell claims against the County. Accordingly, the Court 28 grants leave to amend the Monell claims (Claims 6 and 7) against the County. 1 However, amendment would be futile as to the Plaintiff’s negligence and Bane Act 2 claims (Claims 8–11) against the County regarding the Provided Narcotics Theory, 3 the related failure to discipline/terminate theory, and the failure to adequately train 4 jail staff theory—in that the County is immune from suits over the wrongful or 5 negligent death of prisoners under section 844.6 of the California Government 6 Code. Similarly, Plaintiff’s Monell claims (Claims 6 and 7) against Does 13–25 7 could not be saved by amendment because Monell claims cannot be brought 8 against individuals. If Plaintiff opts to amend his Complaint, the factual 9 allegations in his amended complaint must be “consistent with” and may “not 10 contradict the allegations in original complaint.” United States v. Corinthian 11 Colleges, 655 F.3d 984, 995 (9th Cir. 2011). 12 In summary, this Order holds that: 13 • Claims 1–5 (Section 1983 claims against Does 1–12) survive the County’s 14 Motion. 15 • Claims 6 and 7 (Monell claims against the County and Does 13–25) must be 16 dismissed entirely—with prejudice as to Does 13–25 and without prejudice 17 as to the County. 18 • Claims 8–11 (state law negligence claims and a Bane Act claim against the 19 County and Does 1–25) must be dismissed with prejudice against the 20 County regarding the Provided Narcotics Theory, the related failure to 21 discipline/terminate theory, and the failure to adequately train jail staff 22 theory. However, these claims remain against the County insofar as it could 23 be vicariously liable for the actions of Does 1–12 regarding the Failure to 24 Summon Care Theory. These claims also survive in full as to Does 1–25 25 directly because the County has not moved for their dismissal. 26 IV. CONCLUSION & ORDER 27 For the foregoing reasons, the Court GRANTS the RJN [Doc. 5-1] and GRANTS 28 IN PART and DENIES IN PART the Motion [Doc. 4]. Claims 6 and 7 are dismissed 1 || WITH LEAVE TO AMEND as to the County and dismissed WITHOUT LEAVE TO 2 || AMEND as to Does 13-25. Claims 8-11 are DISMISSED WITHOUT LEAVE TO 3 || AMEND against the County regarding the Provided Narcotics Theory, the related failure 4 || to discipline/terminate theory, and the failure to adequately train jail staff theory. Claims 5 || 1-5 remain in full as to all defendants, as do claims 8—11 as to Does 1-25. However, 6 ||claims 8—11 only remain against the County to the extent it could be vicariously liable for 7 || the actions of its employees regarding the Provided Narcotics Theory. 8 9 IT IS SO ORDERED. 19 Dated: April 5, 2024 \ [pe luda 2 Hn. 1 omas J. Whelan 3 United States District Judge

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