Opinion
No. 2:20-cv-00577-KJM-DMC
10-30-2020
Estate of LINDA MILLER, et al., Plaintiffs, v. COUNTY OF SUTTER, et al., Defendants.
ORDER
Linda Miller committed suicide in the Sutter County Jail while she was awaiting trial. During the five days between her incarceration and death, she showed clear signs of deteriorating mental health, depression and opioid withdrawal. Her family claims her death was the needless result of indifference by county officers, cost-cutting by the private companies hired to care for inmates and discrimination, among other wrongs. Several of the defendants move to dismiss. See ECF Nos. 46, 50.
The court held a hearing by videoconference on October 16, 2020. Theresa Zhen and EmilyRose Johns appeared for the plaintiffs. Wendy Motooka appeared for Nevada County and the individual defendants affiliated with the county. Ellen Robbins and Evelina Gentry appeared for HIG Capital, LLC and Michael Kuritzky. Temitayo Peters, who represents Sutter County and several individual Sutter County defendants, monitored the hearing. For the reasons explained in this order, the court denies the motions in part and grants them in part with leave to amend.
I. ALLEGATIONS
At this stage, the court assumes the following allegations are true and views those allegations in the light most favorable to the plaintiffs' case. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Miller was born in Paradise, California, and she grew up nearby. First Am. Compl. ¶ 73, ECF No. 40. She began to show signs of depression and anxiety when she was a teenager. Id. ¶ 76. She also abused drugs. Id. During her high school years, she was diagnosed with post-traumatic stress disorder and severe depression. Id. ¶ 77. Her mental health varied. Sometimes she was well, but often she was agitated, unstable, anxious and aggressive. Id. ¶ 79. She battled addiction for many years, and her substance use led to arrests and incarceration. Id. ¶¶ 79-80. Her life took a turn for the better when her son was born: she went to drug abuse and recovery classes, saw a counselor and went back to college. Id. ¶ 80. Once sober, she became an ambassador for her rehabilitation program and worked full time, even achieving financial independence. Id.
But in the summer of 2018, Miller was in a head-on car crash that killed two people and left her in a coma. Id. ¶ 82. She broke her legs and back and was confined to a wheelchair. Id. She developed chronic pain, which she managed with a prescription for opioids, but soon she began to self-medicate, first with prescription opioids she bought on the street, then with heroin. Id. ¶¶ 82, 84. A few months later, the Camp Fire ignited in the mountains above Paradise. Id. ¶ 83. Miller's apartment and her belongings were destroyed in the flames. Id. She had no insurance. Id. Finally, in early 2019, Miller was charged with manslaughter for her role in the car crash. Id. ¶ 85. She was still recovering from follow-up surgeries and was in a wheelchair when she was arraigned. Id. She was remanded to custody with bail set at one million dollars. Id. ¶ 86.
When Miller arrived in the Sutter County Jail, she told staff about her injuries from the car crash and her prescription drug use. Id. ¶ 89. Miller's partner also called the jail to warn about Miller's drug addiction and her suicide risk, but somehow that information never made it to her file, and she was assigned to an ordinary cell in the general jail population. Id. ¶¶ 88, 90. After reviewing her condition, a sergeant became concerned that the jail "would have a hard time" taking care of Miller "due to her medical issues." Id. ¶ 92. She told her commander, and the commander called other nearby jails to see if one could help. Id. Nevada County agreed to house Miller as a courtesy. Id.
When Miller arrived in the Nevada County Jail that night, she told staff she had a history of seizures, was in pain and was taking medication. Id. ¶ 93. Despite a written policy to refer people in Miller's situation to medical care "immediately," the Nevada County Jail did not refer her or review her medical records. Id. Miller did speak to a nurse, who made notes about her accident, seizure medications, surgeries, chronic opioid use and severe pain. Id. ¶ 94. Miller's intake paperwork also shows she told officers she was using heroin and had night sweats, a cough, fever, weight loss and a loss of appetite, and was spitting up. Id. ¶ 95. Her condition worsened. See id. ¶ 94. Nevada County jail staff would have seen this had they consulted the Sutter County jail records. See id. ¶¶ 93-94. Like Sutter County, Nevada County assigned her to an ordinary cell, not a cell where she would be observed and treated. See id. ¶ 96.
Later that night, after suffering from violent withdrawal symptoms, Miller nearly died in an apparent suicide attempt. See id. ¶¶ 99, 103. She called for help and became increasingly catatonic, but it was hours before she was treated, and the jail did not call paramedics until she was unresponsive. Id. ¶ 99. Her diagnosis was both opioid overdose and opioid withdrawal. See id. ¶ 100.
After Miller was hospitalized, the deputy officer of the jail in Nevada County, Sergeant Jeannette Mullenax, decided that Miller should return to Sutter County. Sutter County also agreed to accept her, even though neither party believed the Sutter County Jail could give Miller the care she needed. Id. ¶¶ 101, 106. Mullenax also withheld information from Sutter County about Miller's condition and her hospitalization. See id. ¶ 101.
When Miller arrived back in the Sutter County Jail, she was in so much pain she could not even sit up or sign a form; she lay on the floor during her intake interview. Id. ¶ 107. Despite her obvious pain, a nurse wrote that Miller's pain was zero on a scale of one to ten. Id. Later that day, jail records show Miller was agitated, lying on the floor, kicking her legs and "sick as a dog." Id. ¶ 108. She told staff she was in chronic pain, had seizures and was addicted to pain medications. Id.
Two more days went by before a therapist evaluated Miller's mental health. Id. ¶ 109. The records of this evaluation paint a worrisome picture. According to the therapist's file:
• Miller had been diagnosed with depression and bipolar disorder;See id. ¶¶ 110-11.
• She had been hospitalized for psychiatric treatment in the past;
• She had been taking an antidepressant before entering the jail;
• She had also taken several psychiatric medications in the past;
• She had been on suicide watch during previous incarcerations;
• She had two previous suicide attempts;
• She had a family history of suicide attempts;
• She was currently showing signs of depression;
• She couldn't eat or sleep and was hallucinating;
• She felt guilty and worthless; and
• She was helpless, hopeless, disheveled and blunted.
Still the jail did not place Miller on suicide watch, assign her to an overnight observation unit or urgently refer her for mental health treatment. Id. ¶¶ 111, 119. Instead, it left her in an ordinary cell with an ordinary metal bedframe and an ordinary bedsheet. See id. ¶ 116. She did not receive treatment. See id. ¶ 119. The next day, her bail was increased to $2 million, which was too much for her family to afford. Id. ¶¶ 113. She committed suicide that night. Id. ¶ 115. An investigation determined she had asphyxiated from the bedsheet she had tied around her neck. Id. ¶¶ 115, 118. Only five days had passed since she first came to the Sutter County Jail. See id. ¶ 118.
Miller's death is one of many suicides in Sutter and Nevada county jails over the last several years. Many of the victims suffered from mental health and substance use problems, and many of these deaths have led to lawsuits. See id. ¶¶ 121-22, 133-35. A grand jury investigation has also documented, among other problems, inadequate mental-health staffing, inadequate training on suicide prevention and out-of-date healthcare policies in the Sutter County Jail. See id. ¶¶ 125-29. The complaint here mentions only one other death in the Nevada County jail where Miller was briefly housed. Id. ¶ 135.
Miller's mother and son, the latter acting through his uncle and guardian ad litem, filed this lawsuit against Sutter and Nevada counties, the two county sheriffs, several officers with responsibilities over the two county jails and several people affiliated with a group of private contractors providing healthcare at both jails. See id. ¶¶ 18-64. These contractors' names and ownership structures have changed over the years, but according to the complaint, after the corporate obfuscation is stripped away, only two companies remain: (1) HIG Capital, a private equity firm that invests in and manages businesses that provide healthcare in jails and prisons, including 65 facilities in 27 California counties; and (2) Wellpath, a collection of companies managed by HIG that provides healthcare in the Sutter and Nevada county jails. See id. ¶¶ 28-64. HIG oversees the management, training, retention and supervision of the Wellpath employees who work in the two jails where Miller was housed before she died. See id. ¶ 34. HIG writes policies, establishes practices and standards and manages Wellpath's finances. See id. It also routinely appoints its own employees and officers to the boards of the companies it manages, including Wellpath, and HIG officers are involved in Wellpath's day-to-day management of healthcare in county jails. See id. ¶ 37. In short, HIG's goal is to increase the value of its investment, and it does this by carefully controlling Wellpath's operations. Id. ¶ 38.
The complaint includes twelve claims:
1. Deliberate indifference to medical and mental health needs in violation of the Fourteenth Amendment (against all defendants), id. ¶¶ 155-62;
2. Failure to protect from harm in violation of the Fourteenth Amendment (against all defendants), id. ¶¶ 163-70;
3. Municipal liability for violations of the Fourteenth Amendment (against the two counties, HIG and Wellpath), id. ¶¶ 171-76;
4. Supervisory liability under 42 U.S.C. § 1983 (against the county sheriffs, several officers with responsibilities over the two jails, as well as three members of HIG and Wellpath management), id. ¶¶ 177-85;
5. Deprivation of substantive due process in violation of the First and Fourteenth amendments (against all defendants), id. ¶¶ 186-89;
6. Failure to provide or summon medical care in violation of California Government Code sections 844.6 and 845.6 (against the two counties and a Sutter County correctional officer), id. ¶¶ 190-96;
7. Negligent supervision, training, hiring and retention (against the two counties, their sheriffs, two officers with responsibility over the Sutter County Jail, and two members of HIG and Wellpath management), id. ¶¶ 197-201;
8. Wrongful death under California Code of Civil Procedure section 377.60 (against all defendants), id. ¶¶ 202-13;
9. Negligence (against all defendants), id. ¶¶ 214-22;
10. Violation of the Bane Act, California Civil Code section 52.1 (against all defendants), id. ¶¶ 223-30;
11. Violation of the Americans with Disabilities Act and the Rehabilitation Act (against the two counties, HIG and Wellpath), id. ¶¶ 231-40; and
12. Violation of the California Unruh Act, California Civil Code section 51 (against HIG and Wellpath), id. ¶¶ 241-45.
HIG, Wellpath, Nevada County and several individual defendants affiliated with these entities move to dismiss the claims against them under Rule 12(b)(6), see ECF Nos. 46, 50, and these motions are fully briefed, see Opp'ns, ECF Nos. 54, 56; Replies, ECF Nos. 63, 64.
Sutter County, the individual Sutter County officers and several individuals affiliated with the jail contractors answered the complaint without moving to dismiss. See ECF Nos. 41, 45, 47. References to "defendants" below thus exclude those individuals and entities.
HIG's reply brief includes several paragraphs of single-spaced text that, if properly double-spaced, would likely have caused that brief to exceed the page limits defined in this court's standing order. See HIG Reply at 3-6, ECF No. 64; Standing Order at 3-4, ECF No. 3-1. Briefs that do not comply with the court's standing order may be stricken.
II. LEGAL STANDARD
A party may move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks a "cognizable legal theory" or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes these factual allegations are true and draws reasonable inferences from them. Iqbal, 556 U.S. at 678. If the complaint's allegations do not "plausibly give rise to an entitlement to relief," the motion must be granted. Id. at 679.
A complaint need contain only a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), not "detailed factual allegations," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned accusations; "sufficient factual matter" must make the claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations of elements do not alone suffice. Id. This evaluation of plausibility is a context-specific task drawing on "judicial experience and common sense." Id. at 679.
III. ANALYSIS
A. Standing
Nevada County first argues plaintiffs lack standing to pursue a survival action on Miller's behalf because they have not complied with California laws governing survival actions. A plaintiff may pursue a survival action on behalf of a deceased person in federal court. See Hayes v. Cty. of San Diego, 736 F.3d 1223, 1228-29 (9th Cir. 2013). "The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action." Id. (quoting Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998)). California's requirements for survival actions are found in California Code of Civil Procedure section 377.30. Under that section and others that follow, the personal representative of a deceased person must execute and file a specific declaration before filing a survival action. See Cal. Civ. Proc. Code § 377.32(a). But a plaintiff's failure to file the required declaration does not mean the case must be dismissed; noncompliance may be cured. See Frary v. Cty. of Marin, 81 F. Supp. 3d 811, 846 (N.D. Cal. 2015).
Here, the plaintiffs claim they have complied with California law governing survival actions, including the declaration requirements of section 377.32. They point to a declaration by Richard Hyde, see ECF No. 44.1, but according to the operative complaint, the estate is administered by Christina Hyde, see FAC at 1, ECF No. 40. The plaintiffs are directed to correct or clarify this apparent inconsistency, assuming they can, and to comply with all applicable provisions of California law governing survival actions. See, e.g., Alejandre v. Cty. of San Joaquin, No. 19-233, 2019 WL 2355596, at *2 (E.D. Cal. June 4, 2019).
B. Broader Defenses by HIG and Wellpath
Before addressing the allegations and claims against them, HIG and Wellpath also advance three broader arguments: (1) the complaint is too vague to give them notice of who did what; (2) the companies and their employees cannot be held liable as alter egos or as agents and principles, and (3) they are not liable under § 1983 because they did not act under color of state law.
1. Rule 8 and "Shotgun Pleading"
HIG argues first that the complaint unfairly lumps HIG together with the other defendants and does not explain what it did wrong. See HIG Mot. at 6-7. It describes the complaint here as a "shotgun pleading." See HIG Mot. at 6. Courts have used that term to describe several different pleading problems. Sometimes it is used to describe a complaint that does not differentiate defendants. See, e.g., Bonnette v. Dick, No. 18-0046, 2020 WL 3412733, at *3 (E.D. Cal. June 22, 2020) ("[I]t is not clear which claims Plaintiffs intend to assert against each of the respective Defendants."). Sometimes it is used to describe a complaint that violates Rule 10(b), which requires a plaintiff to "state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances," and which encourages plaintiffs to separate their claims by "transaction or occurrence." Fed. R. Civ. P. 10(b); see also, e.g., Almont Ambulatory Surgery Ctr., LLC v. UnitedHealth Grp., Inc., No. 14-03053, 2015 WL 12777092, at *4 (C.D. Cal. Oct. 23, 2015). Sometimes "shotgun pleading" has been used to describe a complaint that impermissibly "incorporate[s] each preceding paragraph, regardless of relevancy." Destfino v. Kennedy, No. 08-1269, 2009 WL 63566, at *4 (E.D. Cal. Jan. 8, 2009), aff'd, 630 F.3d 952 (9th Cir. 2011).
The complaint here is not a shotgun pleading within any of these categories. It is long, but it is clear and logically organized, and it gives the defendants enough information to understand the legal claims against them and the allegations supporting those claims:
• It introduces the action, see id. ¶¶ 1-9;To be sure, the complaint here could be clearer, shorter and more incisive. Cf. Fed. R. Civ. P. Forms 10-29; McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). But it meets the standards of Rule 8(a) and 10(b).
• It establishes the court's jurisdiction and venue, see id. ¶¶ 10-14;
• It explains who the parties are, with separate subsections for Sutter County, Nevada County and the private contractors that operate in the two county jails, see id. ¶¶ 15-70, including allegations about why HIG and Wellpath are one and the same entity, see id. ¶¶ 28-70;
• It alleges compliance with exhaustion requirements, see id. ¶¶ 71-72;
• It alleges who did what and when, id. ¶¶ 73-154;
• It claims the defendants violated the law and explains why, using separate subsections for each of the twelve claims, and each subsection includes a heading describing the legal basis for the claim and a list of the defendants against whom that claim is asserted, see id. ¶¶ 155-245;
• It requests relief, see id. at 61; and
• It demands a jury trial, see id. at 62.
2. Alter Ego Liability
HIG and Wellpath next argue the complaint does not make out a plausible case that they and one of their executives, Michael Kuritzky, are liable for the others' alleged wrongs. See HIG Mot. at 7-9. The parties appear to agree that California law governs this determination, see id.; Opp'n HIG Mot. at 9-14, and the court assumes for purposes of this order that it does.
The contractors first argue that the complaint's factual allegations do not support the plaintiffs' claim that HIG, Wellpath and Kuritzky are "alter egos." A corporation ordinarily enjoys the "statutory privilege" of a "separate personality" from its shareholders and other corporations. Mesler v. Bragg Mgmt. Co., 39 Cal. 3d 290, 300 (1985) (quoting Comment, "Corporations: Disregarding Corporate Entity: One Man Company," 13 Cal. L. Rev. 235, 237 (1925)). But this separate personality "must be used for legitimate business purposes and must not be perverted." Id. (quoting Comment, supra, 13 Cal. L. Rev. at 237). A court may therefore disregard a corporation's separate status and hold individual shareholders or another entity liable for the corporation's actions if necessary to prevent abuses and injustice. See id. Here, for example, if the plaintiffs proved it would be correct to do so, the court could disregard that HIG, its owners and its portfolio companies are different corporate entities and hold each responsible for what the others have done. See id. at 300-01.
California courts have described two broad requirements for plaintiffs who invoke this so-called corporate "alter ego" or "veil-piercing" doctrine: "(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual"—or of two entities—"no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow." Automotriz Del Golfo De Cal. S. A. De C. V. v. Resnick, 47 Cal. 2d 792, 796 (1957). This is no "litmus test." Mesler, 39 Cal. 3d at 300. "[T]he result will depend on the circumstances of each particular case." Id. It is "normally a question of fact." Zoran Corp. v. Chen, 185 Cal. App. 4th 799, 811 (2010). There are many factors to consider. Id. Does the corporation issue stock and have stockholders, for example, or does it appear to be an empty shell designed to serve "the interests of another corporation or an individual"? Automotriz, 47 Cal. 2d at 796. Or is the corporation operating with so little capital that it would probably not be able to "meet its debts"? Id. at 796-97 (citation omitted). Do two entities mix their funds or other assets? See Assoc. Vendors, Inc. v. Oakland Meat Co., 210 Cal. App. 2d 825, 838-40 (1962). Do they have the same address, employees and management? See id. Does a company actually observe corporate formalities, such as holding meetings keeping minutes and other records? See id. Do parents, affiliates and subsidiaries conceal or confuse their identities so as to unfairly insulate owners and their assets from liability? See id.
The complaint here includes several pages of allegations illustrating how the plaintiffs intend to prove that the companies under the "Wellpath" umbrella are not really separate from HIG, but rather instruments that HIG wields to artificially divorce its profits from its liabilities. For example, the complaint alleges the names of these entities and their relationships have converged as a result of rebranding efforts and the consolidation of control in HIG. See, e.g., FAC ¶¶ 34, 40. It alleges HIG controls the companies that actually provide healthcare in county jails and directs day-to-day operations by creating policies, setting strategic goals, installing executives and board members, and choosing who will work in jails as supervisors, doctors and nurses. See, e.g., id. ¶¶ 34-36. It alleges HIG and its owners have attempted to increase the value of their investment by collecting profits and gains while saddling subsidiaries with liabilities and losses, entities HIG creates specifically for that purpose. See, e.g., id. ¶¶ 38, 40, 44. It also alleges that if HIG and Wellpath are not treated as the same entity, HIG will continue depriving inmates of healthcare and preventing improvements to California jails, even after successful civil rights lawsuits. Id. ¶¶ 44-45. These are allegations only and HIG may well disprove them. But they are factual allegations, and at this stage, the court must assume they are true. Doing so, the court infers a plausible theory of alter-ego liability.
Many of these allegations also meet no resistance in HIG's motion to dismiss. For example, HIG does not contest the allegation that the organizational defendants under the "Wellpath" umbrella are not actually separate entities. HIG argues instead the complaint is too conclusory in its allegation that Wellpath is the alter ego of HIG. See id. at 7 (arguing plaintiffs' attempt "to make HIG liable for CMFG's actions" rests on "conclusory" claims). HIG is correct that the court does not blindly accept conclusions, "labels," "unadorned" accusations and "naked assertion[s]" when evaluating a motion to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 678 (alteration in original, citation omitted). HIG is also correct that a plaintiff cannot defeat a motion to dismiss by making the unelaborated assertion that a company is a "shell," see Wine Bottle Recycling, LLC v. Niagara Sys. LLC, No. 12-1924, 2013 WL 1120962, at *9 (N.D. Cal. Mar. 18, 2013), or that it would be "inequitable" not to treat defendants as alter egos, Neilson v. Union Bank of California, N.A., 290 F. Supp. 2d 1101, 1117 (C.D. Cal. 2003).
But the complaint here includes more than labels, conclusions and naked assertions. See supra at 11. The section of the complaint that describes HIG and Wellpath is several pages and dozens of paragraphs long. See FAC at 11-19. Similar allegations, and even much more modest allegations, have sufficed to support a claim that one entity is the alter ego of another in California federal district courts. In a case against a publisher and its affiliates, for example, the plaintiff survived a motion to dismiss despite alleging only that defendants had used the same or very similar names, a parent controlled its subsidiaries, and the companies had commingled funds. See Stewart v. Screen Gems-EMI Music, Inc., 81 F. Supp. 3d 938, 961-62 (N.D. Cal. 2015). In a case of allegedly unpaid invoices, the court held the plaintiff had "properly alleged a unity of interests" among defendants—i.e., that its complaint satisfied the first part of the alter-ego test—by alleging simply that one entity "directed and controlled" the other, which was allegedly a "mere instrumentality, agency, conduit, or adjunct." Daewoo Electronics Am., Inc. v. Opta Corp., No. 13-1247, 2013 WL 3877596, at *5 (N.D. Cal. July 25, 2013). In another case about reimbursement for healthcare services, the plaintiffs survived a motion to dismiss by alleging that some of the defendants had commingled assets and operations, ignored corporate formalities and exercised control over others. See In re Out of Network Substance Use Disorder Claims, No. 19-2075, 2020 WL 2114934, *11-12 (C.D. Cal. Feb. 21, 2020). And in Pacific Maritime Freight, Inc. v. Foster, the Southern District court concluded it was enough for the plaintiff to plead that a person was the sole owner of the alleged alter ego and the two commingled funds. See No. 10-0578, 2010 WL 3339432, at *6-7 (S.D. Cal. Aug. 24, 2010). California courts have sometimes required even less. See, e.g., Paul v. Palm Springs Homes Inc., 192 Cal. App. 2d 858, 863 (1961) (enough for plaintiff to allege sole ownership alone).
As HIG points out, however, another California district court has held that HIG, specifically, is not the alter ego of its portfolio companies. In January 2019, an inmate in the Ventura County Jail committed suicide, and his family sued the county, HIG, an executive and others. See Estate of Ricardez v. County of Ventura, No. 20-00079 (C.D. Cal. filed Jan. 3, 2020). HIG moved for judgment on the pleadings, arguing among other things the complaint could not support any alter ego claims against it. See generally Mot., No. 20-00079 (C.D. Cal. May 8, 2020), ECF No. 89. The court granted HIG's motion, finding the plaintiffs' allegations were too "general" and "conclusory" to support their claims of "a unity of interest" or that it would be "inequitable to recognize the corporate form." 2020 WL 3891460 at *3-4 (C.D. Cal. June 24, 2020).
The court takes judicial notice of this document and others filed in that case. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) ("We may take judicial notice of court filings and other matters of public record").
In reaching this conclusion, the Central District court did not cite or distinguish any of the decisions summarized above. See id. at *4-5. It relied instead on five older decisions addressing complaints without factual allegations. In two of these cases, the plaintiffs had not even bothered to name the elements of the alter ego test. See Wady v. Provident Life & Accident Insurance Co. of America, 216 F. Supp. 2d 1060, 1067 (C.D. Cal. 2002) (complaint had not even included "allegations regarding the relationship between" the two companies that were supposedly alter egos); Hokama v. E.F. Hutton & Co., 566 F. Supp. 636, 647 (C.D. Cal. 1983) ("If plaintiffs wish to pursue such a theory of liability, they must allege the elements of the doctrine."). In another, the plaintiff had relied on just one conclusory assertion: one defendant had "exercised such dominion and control over its subsidiaries" that it should be liable. In re Currency Conversion Fee Antitrust Litig., 265 F. Supp. 2d 385, 426 (S.D.N.Y. 2003). In the fourth cited case, the complaint offered even less: only the allegation "upon information and belief" that two companies "controlled" a third. Kingdom 5-KR-41, Ltd. v. Star Cruises PLC, No. 01-2946, 2002 WL 432390, at *12 (S.D.N.Y. Mar. 20, 2002). In the fifth case, the defendants did not dispute the complaint included allegations showing they had a unity of interests. See Neilson, 290 F. Supp. 2d at 1116-17. The court dismissed the complaint instead because the plaintiff had relied on the conclusory claim that it would be difficult to collect a judgment, which California courts had squarely rejected as a justification for treating corporations as alter egos. See id. at 1117-18 (citing, among other cases, Virtualmagic Asia, Inc. v. Fil-Cartoons, Inc., 99 Cal. App. 4th 228, 245 (2002)). This court therefore declines to follow the Central District court's decision in Estate of Ricardez v. County of Ventura. The factual allegations here suffice at this stage to support the plaintiffs' claim that HIG and Wellpath should be treated as alter egos.
HIG also urges the court to dismiss under a stricter pleading standard imposed in Gerritsen v. Warner Brothers Entertainment Inc. See Reply at 6 (citing 116 F. Supp. 3d 1104 (C.D. Cal. 2015)). This court declines to adopt the reasoning of Gerritsen for three reasons, as explained below.
First, in Gerritsen, the court appears to have relied on an incorrect conception of California and Ninth Circuit law. It required the plaintiff to plead that one company had "dictate[d]" every "facet" of the other's business, id. at 1142, citing a line of cases leading back to the Ninth Circuit's decision in Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir. 2001). In Unocal, the court introduced the doctrine of alter ego liability by offering examples of corporate relationships that satisfy the test. See id. at 926-27. The second of three examples it offered was Rollins Burdick Hunter of Southern California, Inc. v. Alexander & Alexander Services, Inc., a case in which one company had not only exercised abnormally extensive control over the other, but had dictated "every facet" of the business. See id. (quoting 206 Cal. App. 3d 1, 11 (1988)). Doe and Rollins thus illustrate a sufficient condition of alter-ego liability, not a necessary condition. A plaintiff can state a claim by explaining in detail how one company dictated every facet of the other's business, but doing so is not necessary. "The conditions under which a corporate entity may be disregarded vary according to the circumstances in each case." Paul, 192 Cal. App. 2d at 862.
As the Ninth Circuit has since recognized, some holdings in Unocal have been abrogated, see Williams v. Yamaha Motor Co., 851 F.3d 1015, 1021 (9th Cir. 2017), but not the holdings described here.
For the same reasons, the court declines to follow Bible-Marshall v. Montgomery County, No. 20-0028, slip op. at 7 (S.D. Tex. Sept. 27, 2020), ECF No. 47 (dismissing alter-ego claims against HIG because the complaint did not "create a reasonable inference that [HIG] exercised complete domination and control").
Second, the allegations here permit a reasonable inference of "manipulative control," which the Central District court found lacking in Gerritsen. See 116 F. Supp. 3d at 1142. According to the complaint in this case, HIG has attempted to insulate itself from the legal and financial consequences of cost-cutting by foisting liabilities onto its portfolio companies, while saving their revenues for itself. See, e.g., FAC ¶¶ 38, 40, 44-45. It carries out these cost-cutting measures by controlling Wellpath's day-to-day healthcare operations within county jails. See, e.g., id. ¶¶ 34-36. The result, according to the complaint, is a fifty percent higher mortality rate in the facilities served by HIG and Wellpath. See id. ¶ 142.
Third, the pleading standard imposed in Gerritsen is stricter than that required by the Supreme Court and Ninth Circuit. The court in that case dismissed the plaintiff's alter-ego claim despite detailed and extensive allegations: one company was the sole owner of the others; they shared an office, website, telephone and several board members and employees; one of the companies referred to the others as its own "divisions" or "units"; the companies had commingled their funds; and one company had decided how many movies the others could produce, even down to particular genres. See 116 F. Supp. 3d at 1138-43. The standard at this stage is not so strict. A plaintiff's allegations need not "be true or even probable." Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011). They "need only 'plausibly suggest an entitlement to relief.'" (quoting Iqbal, 556 U.S. at 679). That is so even if the defendant advances a plausible explanation of its own. See id. at 1217. The court draws inferences in the plaintiff's favor, as it must. See Iqbal, 556 U.S. at 678. Lengthy and detailed factual allegations are thus unnecessary if the complaint makes out a plausible case without them, as is the case here. See, e.g., Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) ("[I]n many straightforward cases, it will not be any more difficult today for a plaintiff to meet [her] burden than it was before the [Supreme] Court's recent decisions [in Iqbal and Twombly]." (alterations in original) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010)).
HIG also cites many cases decided in very different procedural circumstances, namely when a defendant asserts a lack of personal jurisdiction. See, e.g., Reply at 5, ECF No. 64 (citing Ranza v. Nike, Inc., 793 F.3d 1059 (9th Cir. 2015); Kramer Motors, Inc. v. British Leyland, Ltd., 628 F.2d 1175 (9th Cir. 1980) (per curiam); and Barantsevich v. VTB Bank 954 F. Supp. 2d 972 (C.D. Cal. 2013)). When a court ascertains its personal jurisdiction, it consults the plaintiff's evidence. See, e.g., Ranza, 793 F.3d at 1068. Here, by contrast, the court must decide whether the plaintiffs' allegations, if true, could support a plausible claim of alter-ego liability. Iqbal, 556 U.S. at 678-79. The court does not assess evidence.
In addition to alleging a plausible claim of vicarious alter-ego liability, the complaint's allegations also allow a plausible inference that Wellpath is an agent of HIG. FAC ¶ 57. Under California law, an agency relationship has three "essential characteristics":
1. The agent "holds a power to alter the legal relations between the principal and third persons and between the principal and himself."Garlock Sealing Techs., LLC v. NAK Sealing Techs. Corp., 148 Cal. App. 4th 937, 964 (2007) (Cantil-Sakauye, J.) (quoting Alvarez v. Felker Mfg. Co., 230 Cal. App. 2d 987, 999 (1964)).
2. The agent is a "fiduciary with respect to matters within the scope of the agency."
3. The principal "has the right to control the conduct of the agent with respect to matters entrusted to him."
"A corporation may be held vicariously liable as a principal for the torts of its agents." Secci v. United Independent Taxi Drivers, Inc., 8 Cal. App. 5th 846, 855 (2017). "Control is the key characteristic . . . ." Sonora Diamond Corp. v. Superior Court, 83 Cal. App. 4th 523, 541 (2000). The alleged principal's control must be "over and above that to be expected as an incident of [its] ownership." Cohen v. TNP 2008 Participating Notes Program, LLC, 31 Cal. App. 5th 840, 862, (2019) (citation omitted). It must show a "purposeful disregard" of "independent corporate existence." Id. (citation omitted). "As a practical matter," this occurs when one entity has "moved beyond the establishment of general policy and direction" and has in effect taken over the other's "day-to-day operations in carrying out that policy." Sonora, 83 Cal. App. 4th at 542 (emphasis omitted).
Although the principal-agent theory of liability is similar to the alter-ego theory of liability, the two are distinct. As discussed above, a defendant's liability as an alter ego arises from its abuse of its separate personality and the resulting injustice, whereas agency is primarily a question of control, authority and power. See, e.g., Sonora, 83 Cal. App. 4th at 541 & n.9. That said, "many courts have failed to distinguish, accurately or at all, between an agency analysis and an alter ego analysis." Id. at 540 (discussing these rules as they apply to a state court's jurisdiction over an out-of-state corporation).
Indeed many of the allegations that support the plaintiffs' claims of an alter-ego relationship here also support their claims of a principal-agent relationship. They allege, for example, that HIG controls the day-to-day operations of the companies that provide healthcare in county jails by creating policies and strategies and by choosing who will work in prisons as supervisors, doctors and nurses. See, e.g., id. ¶¶ 34-36. They allege HIG has installed its own personnel as Wellpath's officers and directors and HIG uses Wellpath as an instrument to cut costs and insulate itself from liabilities. See, e.g., id. ¶¶ 34-36, 38, 40, 44. These allegations allow plausible inferences that HIG vested authority in Wellpath to act on its behalf and in its interest within county jails and that HIG's control went well beyond the ordinary control an investor might exercise over a portfolio company. The complaint here goes beyond the sort of legal recitations courts have dismissed under Rule 12(b)(6). See, e.g., Ruhnke v. SkinMedica, Inc., No. 14-0420, 2014 WL 12577172, at *11 (C.D. Cal. Sept. 5, 2014); Imageline, Inc. v. CafePress.com, Inc., No. 10-9794, 2011 WL 1322525, at *4 (C.D. Cal. Apr. 6, 2011). Its allegations are similar to those that have survived motions to dismiss. See, e.g., In re Out of Network Substance Use Disorder Claims, 2020 WL 2114934, at *12. More "precise details" are not necessary at this early point in the litigation. Pascal v. Argentra, No. 19-2418, 2019 WL 5212961, *3 (N.D. Cal. Oct. 16, 2019) (quoting Kristensen v. Credit Payment Servs., 12 F. Supp. 3d 1292, 1301 (D. Nev. 2014)). The specifics are better reserved for summary judgment. See Banks v. N. Tr. Corp., 929 F.3d 1046, 1054 (9th Cir. 2019), cert. denied, 140 S. Ct. 1243 (2020) ("[C]ourts generally determine the existence of an agency relationship at the summary judgment stage, not in determining a motion to dismiss.").
What the complaint does not allege, however, is that HIG or Wellpath is an alter ego of Kuritzky or that he is liable as a principal. No factual allegations describe, for example, how Kuritzky abused HIG's or Wellpath's separate status or how he endowed anyone else with authority to act on his behalf. The court grants HIG's motion to that extent. On these allegations, the plaintiffs may not pursue claims against Kuritzky based on alter-ego or principal-agent theories of liability, but they are granted leave to amend their complaint with the necessary factual allegations, if they are able to amend. See, e.g., Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) ("[W]hen a viable case may be pled, a district court should freely grant leave to amend.").
The court does not reach the plaintiffs' alternative arguments that HIG and Wellpath have created a joint venture or that HIG has ratified Wellpath's actions, which are not asserted in the operative complaint. See HIG Opp'n at 11-14. Nor has the court relied on the documents of which the plaintiffs request judicial notice. See Req. J. Not., ECF No. 55; Apple Inc. v. Allan & Assocs. Ltd., 445 F. Supp. 3d 42, 59 (N.D. Cal. 2020) ("[T]he complaint may not be amended by the briefs in opposition to a motion to dismiss." (citation omitted)). That request and HIG's related motion to strike, ECF No. 58, are thus denied as moot. The plaintiffs may amend their complaint to assert these new facts and theories of liability if they can do so while complying with Federal Rule of Civil Procedure 11.
3. Action Under Color of State Law
HIG and Wellpath next argue they cannot be liable under § 1983 because they are private companies and were not acting "under color of state law." A private defendant can, however, be liable under § 1983 for actions under color of state law. West v. Atkins, 487 U.S. 42, 54 (1988). In West, for example, the Supreme Court held "a physician employed by [a state] to provide medical services to state prison inmates[] acted under color of state law for purposes of § 1983" when he treated an inmates' injuries. Id. The Ninth Circuit has extended that rule to private entities "under contract" with a state "to provide medical services." Lopez v. Department of Health Services, 939 F.2d 881, 883 (9th Cir. 1991) (per curiam). Another judge of this court has determined that private doctors and hospitals contracting "with a public prison system to provide treatment to inmates" perform a public function and thus act under color of state law. Long v. Corizon Health, Inc., No. 17-00898, 2018 WL 5962499, at *4 (E.D. Cal. Nov. 14, 2018), report and recommendation adopted, 2018 WL 6528421 (E.D. Cal. Dec. 12, 2018); accord, e.g., Oyenik v. Corizon Health Inc., 696 F. App'x 792, 794 (9th Cir. 2017) (unpublished) (the action of "a corporation contracted by the State of Arizona to provide medical treatment to state prisoners" was "fairly attributable to the State" and could "therefore give rise to § 1983 liability"). HIG and Wellpath offer no viable distinction between the "state action" in these cases and their own provision of healthcare in county jails. The court can find none. Because the complaint permits a plausible inference of HIG's liability under an alter-ego or principle-agent theory, as discussed above, HIG may be liable under § 1983 as well.
What is left, then, are plaintiffs' allegations against Kuritzky. The complaint does not allege that Kuritzky is a doctor, has any healthcare education or training or made decisions about Miller's healthcare. He sits on company boards, holds executive positions, sets policies and takes care of budgets and finances. See FAC ¶ 48. These are not inherently public functions, and the complaint does not suggest the two counties acted in concert with Kuritzky. Cf. Single Moms, Inc. v. Montana Power Co., 331 F.3d 743, 747 (9th Cir. 2003) (describing the joint action and public function tests for action under color of state law). Nor is it possible to infer a "close nexus" between his actions and the two counties or that the state compelled him to do anything. Cf. id. (describing nexus and compulsion tests). Kuritzky may very well have clear connections to county jails, and his decisions might affect inmates' health, but such links have not qualified a private person as a government actor. See, e.g., Kirtley v. Rainey, 326 F.3d 1088, 1095 (9th Cir. 2003) (holding guardian ad litem was not state actor even though guardian was appointed by a state actor, paid by the state and subject to state regulation).
The complaint thus allows the inference that HIG and Wellpath, but not Kuritzky, were acting under color of state law. The court grants the motion to dismiss the federal constitutional claims against Kuritzky but does not reach the substance of those claims. Because the complaint could state a claim if it included allegations showing Kuritzky acted under color of state law, the plaintiffs are granted leave to amend. ///// /////
C. Substantive Claims
The court next considers the substance of the complaint's twelve claims.
1. Deliberate Indifference to Serious Medical Needs
In their first claim, the plaintiffs allege the defendants acted with deliberate indifference to Miller's serious medical needs in violation of the Fourteenth Amendment. The complaint includes claims of deliberate indifference against both individual and organizational defendants. See FAC at 41. Organizational defendants are not vicariously liable for the torts of their employees and agents under § 1983. See Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Castro v. City of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc). But entities may be liable for their unconstitutional policies and customs, see, e.g., Castro, 833 F.3d at 1073, as the plaintiffs assert separately in their third claim here. The plaintiffs agreed at hearing that because their constitutional claims of deliberate indifference could proceed against Nevada County, Sutter County, HIG and Wellpath under Monell v. Department of Social Services, 436 U.S. 658 (1978), claim one against these entities may be dismissed without leave to amend.
For the individual defendants, Sheriff Moon and Sergeant Mullenax, the plaintiffs' claim has four elements:
1. The defendant made an intentional decision about the plaintiff's medical care. See Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).
2. That decision "put the plaintiff at substantial risk of suffering serious harm." Id.
3. "[T]he defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious." Id. "[T]he defendant's conduct must be objectively unreasonable." Id. (quoting Castro, 833 F.3d at 1071).
4. "[B]y not taking such measures, the defendant caused the plaintiff's injuries," id., both actual cause and proximate cause, Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013).
Here, Sutter County transferred Miller to Nevada County Jail because Sutter County could not give her the treatment she needed. FAC ¶¶ 92-93. When Miller arrived, staff learned she suffered from seizures and chronic pain, was taking medication for both conditions and was misusing opioids. See id. ¶¶ 93-96. She was nevertheless assigned to a cell in the general population. See id. That night, staff waited for several hours while Miller suffered in pain, called for help, became catatonic and finally stopped responding before they called paramedics and sent her to the hospital. See id. ¶¶ 99-100. These allegations paint a troubling picture of mistreatment and indifference, but they do not describe any wrongdoing or inaction by the Sheriff or Sergeant Mullenax.
The complaint does, however, go on to allege that Mullenax decided to transfer Miller back to Sutter County. See id. ¶ 101. It is reasonable to infer that Mullenax knew Sutter County had transferred Miller because it could not provide necessary treatment, that she knew Miller might have just attempted to take her own life in Nevada County and that Mullenax did not explain this "critical information" to the Sutter County jail. Id. As a result, Miller was housed in the general population in Sutter County and died just a few days later. See id. ¶¶ 101, 115. At this early stage of the litigation, these allegations satisfy each of the four elements above: (1) Mullenax made a deliberate decision to transfer Miller to a facility that believed itself incapable of caring for Miller, without forwarding information about her hospitalization; (2) that decision put Miller at risk of another opioid-related medical crisis or suicide; (3) a reasonable officer in Mullenax's situation would have known the transfer placed Miller at great risk of harm; and (4) Miller's death was the result.
Nevada County objects that the complaint does not explain in enough detail what information Mullenax withheld. See, e.g., Nevada Cty. Mot at 8-9. The complaint could certainly have been more specific about what "critical information" Mullenax withheld, but at this stage, the plaintiffs are not required to advance "detailed factual allegations." Twombly, 550 U.S. at 555. It is reasonable to infer that Mullenax did not say enough, or anything at all, about Miller's hospitalization and "what appeared to be a suicide attempt." See FAC ¶¶ 101, 113. If staff at the Sutter County Jail had known what had happened the night before, it may very well have taken steps to prevent her suicide. These allegations suffice.
Nearly identical reasoning led the Ninth Circuit to vacate an order granting summary judgment in Conn v. City of Reno, 572 F.3d 1047 (9th Cir. 2010), judgment vacated, 563 U.S. 915, and opinion reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011). In Conn, a woman who had suffered from a long history of drug and alcohol abuse attempted to commit suicide in the back of a police car. See id. at 1051. The officers did not report her suicide attempt and did not take her to the hospital. Id. She was released, detained again the next day, and committed suicide in her cell the day after that. Id. at 1051-52. That was enough to support her claim that the officers who said nothing about her suicide attempt were deliberately indifferent to her serious medical needs. See id. at 1055-62. So too here. Mullenax's alleged failure to report a potential suicide attempt is enough to state a claim.
Nevada County argues Conn is not controlling here. It points out the officers' inaction in Conn deprived the victim of any mental-health screening whatsoever. And here, in contrast with Conn, the complaint alleges Miller was interviewed several times, once by a therapist. See, e.g., FAC ¶¶ 110-11. Despite that difference, the Ninth Circuit's reasoning remains instructive. As explained above, it is reasonable to infer that Nevada County representatives did not explain to Sutter County that Miller's overdose was an apparent suicide attempt. As a result, decisions about her mental health once she returned to Sutter County were "never made by someone who had all the requisite information about her psychological instability at the time." Conn, 572 F.3d at 1060 (emphasis omitted).
The intervening causes described in the defendants' motions do not break the chain of causation here. See Conn, 572 F.3d at 1061. For claims under § 1983, it is enough that the defendants' actions were merely "one of the causes" of the injury, a "moving force" behind the suicide, as long as the intervening cause was foreseeable. Id. at 1060-61 (quoting White v. Roper, 901 F.2d 1501, 1506 (9th Cir. 1990)). The Ninth Circuit has reaffirmed this rule several times and often has permitted plaintiffs to rely on allegations or evidence showing the defendants were only one cause among many, even causes that might arguably have been more direct. In Conn, for example, the foreseeable "intervening stressor" was a later arrest. Id. at 1061. Here, it was an unfavorable outcome at a bail hearing with continued detention. See FAC ¶¶ 113-15. Neither broke the chain of cause and effect. The complaint's allegations give Mullenax "fair notice" of the case against her, allow her to prepare a defense, and with all reasonable inferences drawn in the plaintiffs' favor, the complaint "plausibly suggest[s] an entitlement to relief." Starr, 652 F.3d at 1216.
See Castro, 833 F.3d at 1073 (permitting plaintiff to prove causation by showing officers placed him in holding cell when he was drunk and could not defend himself from violent cellmate); Lemire, 726 F.3d at 1080-81 (permitting plaintiffs to show defendants were deliberately indifferent when they left mentally ill inmate alone for three hours); White, 901 F.2d at 1505-06 (permitting plaintiff to establish deliberate indifference by proving officers tried to force him into violent inmate's cell, leading him to resist and try running, only to be injured when officers restrained him); Cabrales v. County of Los Angeles, 864 F.2d 1454, 1457 (9th Cir.1988), vacated, 490 U.S. 1087 (1989), and reinstated, 886 F.2d 235 (9th Cir.) (finding policy of inadequate care was moving force behind inmate's suicide after he was returned to general population, got in fight, and placed in isolation).
The court grants the motion in part with leave to amend and denies it in part: claim one against Sheriff Moon is dismissed with leave to amend; claim one against Mullenax is dismissed with leave to amend insofar as that claim relates to the treatment of Miller's opioid-related medical crisis; and the motion is denied with respect to the claim Mullenax acted with deliberate indifference while returning Miller to Sutter County's custody.
2. Failure to Protect from Harm
The plaintiffs claim defendants failed to protect Miller from harm in violation of the Fourteenth Amendment. The defendants argue this claim is indistinguishable from the first. Nevada Cty. Mot. at 9; HIG Mot. at 14. The plaintiffs do not argue otherwise. See Nevada Ct. Opp'n at 9; HIG Opp'n at 17-18. The Ninth Circuit has "long analyzed claims that government officials failed to address pretrial detainees' medical needs using the same standard as cases alleging that officials failed to protect pretrial detainees in some other way." Gordon v. Cty. of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018), cert. denied, 139 S. Ct. 794 (2019). The defendants' motions to dismiss this claim are thus granted in part and denied in part to the same extent as the motions to dismiss the first claim.
3. Municipal Liability
In their third claim, the plaintiffs allege the jail medical programs of Nevada County, HIG and Wellpath were deliberately indifferent to inmates' serious medical needs. "In order to establish municipal liability, a plaintiff must show that a 'policy or custom' led to the plaintiff's injury." Castro, 833 F.3d at 1073 (quoting Monell, 436 U.S. at 694). The plaintiff must demonstrate this policy or custom "reflects deliberate indifference to the rights of its inhabitants," and there must be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation." Id. at 1073, 1075 (quoting City of Canton v. Harris, 489 U.S. 378, 385, 392 (1989)). Private entities acting under color of law may also be liable under Monell. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012).
Here, the complaint alleges Nevada County's de facto policy was to deny medical and psychiatric attention to inmates, to not identify and treat newly arrived prisoners who were suffering from drug withdrawal or mental health problems, and to not train and supervise jail staff on handling suicidal inmates. See FAC ¶ 173; see also Nevada Cty. Opp'n at 8 (summarizing complaint similarly). But the complaint offers very few facts to support that conclusion. It identifies only one other overdose in Nevada County jail. See FAC ¶ 135. And contrary to the plaintiffs' argument, they have not actually alleged that Nevada County "has an extensive and tragic history of prisoners in its custody dying from drug overdoses and suicides" or a history "of failing to provide adequate medical care to prisoners." Nevada Cty. Opp'n at 8. Plaintiffs instead have alleged that investigations in other counties have uncovered problems and that many inmates have died in other jails. See FAC ¶¶ 133-37. These allegations do not support broad claims of unconstitutional policies in the Nevada County Jail. See, e.g., Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1251-52 (9th Cir. 2010), overruled in part on other grounds by Castro, 833 F.3d at 1070 (holding deceased plaintiff's estate could not support claim of unconstitutional prison mental healthcare policies without evidence of "a longstanding custom or practice" or failures that "happened so frequently that the need for corrective measures" would have been "plainly obvious" (quoting City of Canton, 489 U.S. at 390 n.10)).
The complaint does, by contrast, include specific factual allegations about HIG and Wellpath. The plaintiffs allege, for example, that HIG and Wellpath were aware their doctors and nurses were treating "more and more individuals with acute mental health diagnosis and substance use disorders." FAC ¶ 41. Plaintiffs allege more than ninety people have "died of suicide or a drug overdose while in the custody of a jail served by [Wellpath]." Id. ¶ 135. Grand juries in other counties have criticized Wellpath "for how it handles prisoner detoxification," have found "the company's procedures failed to detect people at risk for alcohol withdrawal," and have concluded drug and alcohol withdrawal "played key roles in three deaths." Id. ¶¶ 134, 143-44. Wellpath has faced repeated complaints of inadequate mental healthcare. See, e.g., id. ¶¶ 140-41, 145-52. And according to an analysis by The Sacramento Bee, mortality rates are fifty percent higher in jails managed by Wellpath than in other jails. Id. ¶ 142.
These allegations suffice to state a claim that HIG and Wellpath maintained a policy of inaction that amounted to deliberate indifference. See, e.g., Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992) (several incidents over period of several years should have alerted defendant that its policies were unconstitutional). It is reasonable to infer a direct causal link between that policy and Miller's death: if HIG and Wellpath had trained staff to properly care for inmates with substance use disorders, undergoing withdrawal and presenting high suicide risks, then the nurses and counselors who saw Miller would likely have recognized a risk of suicide and would not have assigned her to an ordinary cell in the general population. See, e.g., Pajas v. Cty. of Monterey, No. 16-00945, 2016 WL 3648686, at *9-11 (N.D. Cal. July 8, 2016) (collecting authority and holding allegations of inadequate staffing and inappropriate protocols for treating withdrawal and addiction sufficed to state claim against private contractor for deliberate indifference to inmates' serious medical needs).
The court grants Nevada County's motion to dismiss claim three with leave to amend, and denies the motion to dismiss the claims against HIG and Wellpath.
4. Supervisory Liability under § 1983
The plaintiffs claim Sheriff Moon is liable as a supervisor under § 1983. "In a § 1983 suit . . . the term 'supervisory liability' is a misnomer." Iqbal, 556 U.S. at 677. Supervisors can be liable only for their own conduct. See Peralta v. Dillard, 744 F.3d 1076, 1085 (9th Cir. 2014) (en banc). A plaintiff "may state a claim against a supervisor for deliberate indifference based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her subordinates." Baca, 652 F.3d at 1207. The complaint must show a supervisor's breach of duty "was the proximate cause of the injury." Id. (citation omitted).
The complaint here does not allege the Sheriff made any decisions about Miller's care. It does little more than recite the elements of a claim for supervisory liability. It alleges, for example, the Sheriff "knew or should have known that [Miller] had recently used powerful and addictive opioid drugs and abruptly ceased that usage due to her incarceration" but "failed to take the necessary steps to assess [her] mental health condition and to administer appropriate care." FAC ¶ 102. As explained above, contrary to plaintiffs' argument, the complaint does not identify a pattern of "drug overdose deaths and deaths by suicide" in Nevada County jails "in the previous years." Opp'n Nev. Cty. Mot. at 12. Rather, those allegations concern other jails in other counties. See id. ¶¶ 133-37.
The court grants Nevada County's motion to dismiss claim four, with leave to amend.
5. Loss of the Parent-Child Relationship
In claim five, the plaintiffs allege defendants deprived them of their familial relationship with Miller. "It is well established that a parent has a fundamental liberty interest in the companionship and society of his or her child and that the state's interference with that liberty interest without due process of law is remediable under 42 U.S.C. § 1983." Crowe v. Cty. of San Diego, 608 F.3d 406, 441 (9th Cir. 2010) (quoting Lee v. City of L.A., 250 F.3d 668, 685 (9th Cir. 2001)) (alterations omitted). "To amount to a violation of substantive due process, however, the harmful conduct must 'shock the conscience' or 'offend the community's sense of fair play and decency.'" Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (quoting Rochin v. California, 342 U.S. 165, 172-73 (1952)) (alterations omitted).
The Supreme Court has held that deliberately indifferent conduct may shock the conscience. Cty. of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998). The Ninth Circuit has applied this doctrine to a defendant's failure to prevent a detained or incarcerated person's apparent suicide. See Lemire, 726 F.3d at 1075. District judges in this circuit have held that deliberately indifferent actions shock the conscious essentially by definition. See, e.g., Estate of Prasad ex rel. Prasad v. Cnty. of Sutter, 958 F. Supp. 2d 1101, 1116 (E.D. Cal. 2013) ("A prison official's deliberate indifference to a prisoner's serious medical needs shocks the conscience and states a claim under the substantive due process clause."). Neither party here advances an independent argument on this claim. They refer instead to their arguments about deliberate indifference. See Nevada Cty. Mot. at 11; Opp'n re Nevada Cty. Mot. at 14.
The court thus dismisses claim five in part and denies it in part to the same extent as it did in resolving the motions to dismiss claim one.
6. Failure to Furnish or Summon Medical Care
The plaintiffs assert a claim against Nevada County under California Government Code section 845.6, which holds both public entities and their employees directly liable if they know or have reason to know a "prisoner is in need of immediate medical care" but do not "take reasonable action to summon such medical care." The Government Code also "allows for vicarious liability of a municipality" under section 845.6 if an employee violates the statute "when acting within the scope of employment." Horton by Horton v. City of Santa Maria, 915 F.3d 592, 605 (9th Cir. 2019) (citing Cal. Gov't Code § 815.2). But "[l]iability under section 845.6 is limited to serious and obvious medical conditions requiring immediate care." Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir. 2006) (quoting Watson v. State, 21 Cal. App. 4th 836, 841 (1993)).
Here, the plaintiffs allege Nevada County officers stood by for hours as Miller suffered in pain, called for help, deteriorated, became unresponsive and nearly died. See FAC ¶ 99. These allegations state a plausible claim for relief under the plain language of section 845.6.
Nevada County argues it is immune to these claims under Government Code section 844.6, but that section provides an express exception for liability under section 845.6. See Cal. Gov't Code § 844.6(a) ("Notwithstanding any other provision of this part, except as provided . . . in Section[] . . . 845.6 . . . , a public entity is not liable for . . . [a]n injury to any prisoner." (emphasis added)).
Nevada County also argues it is immune under Government Code section 855.8, which provides public entities are not "liable for injury resulting from diagnosing or failing to diagnose that a person is afflicted with mental illness or addiction or from failing to prescribe for mental illness or addiction." The Ninth Circuit rejected an almost identical argument in Horton, 915 F.3d at 592 ("The complaint alleges that the defendants subjected Horton to 'a delay in and/or denial of medical or mental health care,' not (or at least, not only) that they failed to diagnose or treat his mental illness—a responsibility typically entrusted to a medical professional."). Moreover, it is unreasonable to infer the county's officers were capable or qualified to make any diagnoses. See Johnson v. County of Los Angeles, 143 Cal. App. 3d 298, 316 (1983) ("We hold that as a matter of law a sheriff does not have the authority to make the final determination of diagnosing that a person is, or is not, afflicted with mental illness . . . .").
Nevada County relies similarly on Government Code section 856, but that section grants immunity only for decisions "in accordance with any applicable enactment" about whether "to confine a person for mental illness or addiction." Cal. Gov't Code § 856(a)(1). There is no allegation the county is liable for confining Miller; rather plaintiff alleges jail personnel did not summon or provide medical care. Section 856 is not applicable here. See Hall v. City of Fremont, 520 F. App'x 609, 612 (9th Cir. 2013) (unpublished) (rejecting immunity claims under section 856 in similar circumstances); see also Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 448 (1976) (interpreting scope of section 856).
The court denies the motion as to claim six.
7. Negligent Supervision and Training Under State Law
The plaintiffs claim that Nevada County, Sheriff Moon and Kuritzky are liable under the California Government Code for negligent supervision, training, hiring and retention. FAC ¶¶ 197-201 (citing Cal. Gov't Code §§ 815.2, 820(a) and 820.8).
The County argues it is immune from these claims because no statute makes public entities directly liable for negligent training and supervision. Nevada Cty. Mot. at 12-13. But "several district courts" have held otherwise. Palacios v. Cty. of San Diego, No. 20-0450, 2020 WL 4201686, at *20 (S.D. Cal. July 22, 2020) (citing Cal. Gov't Code § 845.6 and collecting authority). This court agrees with their reasoning and declines to dismiss the complaint on that basis.
The allegations in support of this claim, however, are too vague to allow a plausible inference of liability. As explained above, the allegations against Sheriff Moon do not say she made any decisions about Miller's care. See supra section III.C.4. The same is true for the allegations against Kuritzky. See FAC ¶¶ 48, 58. And the allegations against the County are only generic assertions. See id. ¶ 199. It appears from plaintiffs' opposition brief that their theory of liability is a form of the res ipsa loquitor doctrine of general tort law, i.e., that because employees did not summon or provide care to Miller, their training must necessarily have been deficient. See Nevada Cty. Opp'n at 16-17. They cite no California law to support such a theory of liability, and the court is aware of none. The federal authorities they cite hold only that the county is not immune to such a claim under Government Code section 815. See Estate of Claypole v. Cty. of San Mateo, No. 14-02730, 2014 WL 5100696, at *8 (N.D. Cal. Oct. 9, 2014); Bock v. Cty. of Sutter, No. 11-00536, 2012 W L 3778953, at *18-19 (E.D. Cal. Aug. 31, 2012). It is certainly conceivable that employees who fail to summon care were negligently trained, but a complaint must nudge a plaintiff's claims "across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
The court grants the motion to dismiss claim seven, with leave to amend.
8. Wrongful Death
The plaintiffs assert a wrongful death claim against all defendants. To state a claim for wrongful death, a plaintiff must allege facts showing the defendant's wrongful act or neglect caused the death. See Cal. Civ. Proc. Code § 377.60; Norgart v. Upjohn, 21 Cal. 4th 383, 390 (1999). A wrongful death claim may be based on a federal claim of deliberate indifference under § 1983. Villarreal v. Cty. of Monterey, 254 F. Supp. 3d 1168, 1190-91 (N.D. Cal. 2017).
Because the complaint here states claims under § 1983 against Mullenax, it also states a claim against her for wrongful death on the same basis. It is plausible to infer that Mullenax's alleged indifference was a proximate cause of Miller's later suicide in the Sutter County Jail. If Mullenax had taken greater care and more fully explained Miller's hospitalization, Sutter County could likely have prevented her death a few days later. See Conn, 572 F.3d at 1061 (foreseeable intervening causes do not break chain of causation eventually leading to pretrial detainee's death); White, 901 F.2d at 1506 (reasoning similarly).
For similar reasons, the complaint states a claim for wrongful death against HIG and Wellpath. As discussed above, the complaint states a claim for entity liability against them under § 1983, and the complaint's allegations draw a clear line of cause and effect between Miller's suicide and HIG's and Wellpath's policies for treating inmates with mental health problems and substance use disorders. See supra section III.C.3.
By contrast, the claims against Nevada County, the Sheriff and Kuritzky fall short. First, as to the County, although a claim for wrongful death may be based on violations of Government Code section 845.6, see Villareal, 254 F. Supp. 3d at 1190-91, the complaint offers no explanation for why Nevada County's failure to summon medical care caused Miller's later suicide in the Sutter County Jail. This claim is dismissed with leave to amend. Second, as explained elsewhere in this order, the complaint does not state a claim against the Sheriff or Kuritzky under § 1983, Government Code section 845.6, common law negligence or the Bane Act, so the court dismisses the wrongful death claim against them with leave to amend.
9. Negligence
The plaintiffs assert a claim of general negligence against all defendants. To plead a claim of negligence, a complaint must allege the defendant breached a duty of care to the plaintiff and caused an injury. See Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 629 (2013). Unless the law provides otherwise, public employees are liable to the same extent as private persons, and "public entities are generally liable for injuries caused by the negligence of their employees acting in the scope of their employment." Id.
The claims against Nevada County meet this standard because the complaint states a claim against it under Government Code section 845.6. Its employees did not summon or give medical care to Miller, and as a result, she suffered for hours in her cell, became unresponsive and was hospitalized. See Pajas, 2016 WL 3648686, at *17. The County enjoys no immunity from these claims because Government Code section 845.6 makes it expressly liable for injuries caused by failures to summon medical care. See id.
The allegations against the Sheriff, Mullenax and Kuritzky, by contrast, do not state a claim for negligence. As explained above, the complaint includes only broad assertions of the Sheriff's and Kuritzky's liability, not factual allegations. See supra sections III.C.1 and III.C.4. The negligence claim against the Sheriff is thus dismissed with leave to amend. The only allegations that might support a negligence claim against Sergeant Mullenax are the allegations that she did not explain enough about Miller's suicide attempt to Sutter County. The other claims are too vague. See supra section III.C.1. But Government Code section 845.6 grants Mullenax immunity from state law claims based on an alleged "failure . . . to furnish or obtain medical care for a prisoner."
The plaintiffs do not argue that their allegations against Mullenax state a claim for negligence. See Nevada Cty. Opp'n at 18. Nor do they explain the basis for their negligence claim against HIG and Wellpath. See HIG Opp'n at 19. Arguments advanced without explanation or development cannot prevail. See Lexington Ins. Co. v. Silva Trucking, Inc., No. 14-0015, 2014 WL 1839076, at *3 (E.D. Cal. May 7, 2014).
The motion is granted in part, again with leave to amend.
10. Bane Act
The plaintiffs assert a claim under the Bane Act against all defendants. FAC ¶¶ 223-30. The Bane Act "protects individuals from conduct aimed at interfering with rights that are secured by federal or state law, where the interference is carried out 'by threats, intimidation or coercion.'" Reese v. Cty. of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018) (quoting Venegas v. Cty. of Los Angeles, 153 Cal. App. 4th 1230 (2007)). When a Bane Act claim is based on an alleged federal constitutional violation, as here, plaintiffs may rely on the same allegations to prove both that the defendant deprived them of a constitutional right and threatened, intimidated or coerced them under the Bane Act. See id. at 1043 ("[T]he Bane Act does not require the 'threat, intimidation or coercion' element of the claim to be transactionally independent from the constitutional violation alleged."). But the claim must also rest on factual allegations that would allow an inference the defendant had a "specific intent" to violate the plaintiff's rights. See id. (quoting Cornell v. City & Cty. of San Francisco, 17 Cal. App. 5th 766, 801 (2017)). These rules are applicable to claims of deliberate indifference to serious medical needs. See Lapachet v. California Forensic Med. Grp., Inc., 313 F. Supp. 3d 1183, 1196 (E.D. Cal. 2018).
The plaintiffs' allegations that Mullenax, HIG and Wellpath were deliberately indifferent support their claims against those defendants under the Bane Act. "[A] prison official's deliberate indifference to serious medical needs is a coercive act that rises above mere negligence . . . . [P]leading 'reckless disregard of the right at issue is all that is necessary.'" Scalia v. Cty. of Kern, 308 F. Supp. 3d 1064, 1084 (E.D. Cal. 2018) (other alterations omitted) (quoting Cornell, 17 Cal. App. 5th at 803). Beyond these allegations, the officials' subjective "intent" is a question for the factfinder and another day. See Cornell, 17 Cal. App. 5th at 803 ("[T]he jury must make the second, factual, determination[:] Did the defendant commit the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that right?" (other alterations omitted) (quoting People v. Lashley, 1 Cal. App. 4th 938, 949 (1991)).
The plaintiffs identify no other basis for their Bane Act claims beyond their federal constitutional allegations. See Nevada Cty. Opp'n at 19-20; HIG Opp'n at 19-20. For that reason, and because the complaint does not state constitutional claims against any defendants other than Mullenax, HIG and Wellpath, the court dismisses the Bane Act claims against the other defendants, with leave to amend.
11. Americans with Disabilities Act and Rehabilitation Act
Plaintiffs assert claims under the Americans with Disabilities Act and the Rehabilitation Act against the two Counties, HIG and Wellpath.
Title II of the ADA applies to state and local governments. See Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 985 (9th Cir. 2014); Pierce v. Cty. of Orange, 526 F.3d 1190, 1214-15 (9th Cir. 2008). It broadly forbids discrimination on the basis of disability. See 42 U.S.C. § 12132. To state a claim under Title II of the ADA, plaintiffs must allege they (1) have a disability; (2) are "otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities;" (3) were "either excluded from participation in or denied the benefits of the public entity's services, programs, or activities" or were "otherwise discriminated against by the public entity"; and (4) the exclusion, denial of benefits, or discrimination "was by reason of [the] disability." Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (quoting McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)), overruled in part on other grounds by Castro, 833 F.3d 1060.
Section 504 of the Rehabilitation Act similarly prohibits discrimination "under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a). Plaintiffs must show they (1) have a disability; (2) are "'otherwise qualified' to receive the benefit"; (3) were "denied the benefits of the program solely by reason of . . . disability"; and [also that] (4) the program receives federal financial assistance." Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis, footnote, and citations omitted).
Here, the plaintiffs allege that Nevada County, HIG and Wellpath discriminated against Miller because they did not provide the services she needed and did not accommodate her mental health condition. See FAC ¶¶ 232-39. In other words, they allege Miller received inadequate treatment for her mental health condition. The ADA does not prohibit "inadequate treatment for disability." Simmons, 609 F.3d at 1022. It does not "create a remedy for medical malpractice." Id. (quoting Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)). And because "[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act," Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999), the court concludes the same is true for section 504 of the Rehabilitation Act.
This claim is dismissed, but with leave to amend if possible.
12. Unruh Act
The plaintiffs assert a claim under the California Unruh Civil Rights Act against HIG and Wellpath. The Unruh Act "guarantees every person in California 'full and equal' access to 'all business establishments of every kind whatsoever.'" Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal. 3d 72, 75 (1985) (quoting Cal. Civ. Code § 51). It prohibits discrimination on the basis of several characteristics, including "disability," which includes "any mental or physical disability." Cal. Civ. Code § 51(b) & (e)(1). Plaintiffs must plead intentional discrimination to obtain relief under the Unruh Act. Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1149 (1991), superseded by statute on other grounds as stated in Munson v. Del Taco, Inc., 46 Cal. 4th 661, 665 (2009). Plaintiffs pursuing Unruh Act claims in federal courts may not rely on a conclusory allegation of intentional discrimination. Grier v. Brown, 230 F. Supp. 2d 1108, 1120 (N.D. Cal. 2002).
Here, the complaint asserts conclusions rather than alleging facts to claim HIG and Wellpath discriminated intentionally. For example, the complaint states that HIG and Wellpath denied Miller access to unspecified "programs and services" and gave her "quality of care and service that [was] different, separate, and worse than the service provided to other individuals with the same disabilities." FAC ¶ 244.
This claim is thus dismissed, with leave to amend.
IV. CONCLUSION
The request for judicial notice, ECF No. 55, and the motion to strike, ECF No. 58, are denied as moot. The motions to dismiss, ECF Nos. 46 and 50, are granted in part and denied in part:
• Claims one, two, four and five against Kuritzky are dismissed with leave to amend.///// /////
• Claim one against Nevada County, Sutter County, HIG and Wellpath is dismissed without leave to amend.
• Claim one against Sheriff Moon is dismissed with leave to amend.
• Claim one against Sergeant Mullenax is dismissed with leave to amend insofar as that claim relates to the treatment of Miller's opioid-related medical crisis. The motion is denied for the claim that Mullenax acted with deliberate indifference when returning Miller to Sutter County's custody.
• The motions to dismiss claim two are granted in part and denied in part to the same extent as the motions to dismiss claim one.
• Nevada County's motion to dismiss claim three is granted with leave to amend, and the motion to dismiss claim three against HIG and Wellpath is denied.
• Nevada County's motion to dismiss claim four is granted with leave to amend.
• The motions to dismiss claim five are granted in part and denied in part to the same extent as the motions to dismiss claim one.
• Nevada County's motion to dismiss claim six is denied.
• The motion to dismiss claim seven is granted with leave to amend.
• The motions to dismiss claim eight are denied with respect to the claims against Mullenax, HIG and Wellpath. Claim eight against Nevada County, Sheriff Moon and Kuritzky is dismissed with leave to amend.
• The motion to dismiss claim nine against Nevada County is denied. Claim nine is otherwise dismissed with leave to amend.
• The motions to dismiss claim ten against Mullenax, HIG and Wellpath are denied. Claim ten against the other defendants is dismissed with leave to amend.
• Claim eleven is dismissed with leave to amend.
• Claim twelve is dismissed with leave to amend.
Plaintiffs are directed to file any second amended complaint within twenty-one days. The complaint must correctly identify Miller's estate and its administrator and must be supported by a declaration that complies with California Code of Civil Procedure section 377.32. The ///// plaintiffs may amend their claims and allegations as permitted in this order if possible within the confines of Rule 11.
IT IS SO ORDERED. DATED: October 30, 2020.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE