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In Robertson v. Contra Costa County, No. 15-cv-02549-WHO, 2016 WL 4259135, at *6 (N.D. Cal. Aug. 12, 2016), I denied a motion to dismiss discrimination claims brought under § 504 of the Rehabilitation Act and ADA where the plaintiff stated the allegedly discriminatory action was “because of his psychiatric disability” and alleged that he specifically informed the defendant about his disability.
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Case No. 15-cv-02549-WHO
08-11-2016
RANDY DAVID RAY ROBERTSON, Plaintiff, v. CONTRA COSTA COUNTY, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Re: Dkt. No. 31
INTRODUCTION
Plaintiff Randy David Ray Robertson brings this action under 42 U.S.C. § 1983 and other federal and state laws challenging his conditions of confinement while housed as a civil detainee in the Martinez Detention Facility ("MDF") in Contra Costa County. Although Robertson names dozens of defendants, he has served only three: Contra Costa County (the "County"), Contra Costa Office of the Sherriff (the "Sherriff's Office"), and Contra Costa Health Services ("Health Services"). These defendants (collectively, "County Defendants") move to dismiss various aspects of Robertson's first amended complaint ("FAC"). County Defendants correctly point out that Robertson's first and second causes of action, brought under section 1983, may not be asserted against the Sherriff's Office or Health Services, and those causes of action are DISMISSED WITHOUT LEAVE TO AMEND with respect to those two defendants. In all other respects, County Defendants' motion to dismiss is DENIED.
BACKGROUND
I. FACTUAL BACKGROUND
On February 22, 1996, after being found not guilty by reason of insanity under California Penal Code section 1026 for violations of California Penal Code sections 12310(b), 245(a)(1), and 451(a), Robertson was committed to the California Department of State Hospitals for life or until his sanity was restored. FAC ¶ 8 (Dkt. No. 20). On February 29, 2012, Robertson filed a petition for restoration of sanity pursuant to California Penal Code section 1026.2. Id. ¶ 69. On April 17, 2012, the Superior Court of California for the County of Contra Costa set a hearing on the petition, and on June 11, 2012, Robertson was transferred to the MDF to prepare for and attend the hearing. Id. ¶ 8. Robertson remained housed at the MDF for the next three years, until May 21, 2015. Id. Throughout that time, he was detained under civil process. Id.
County Defendants state in their opening brief that Robertson's convictions arise from an incident in which he threw a Molotov cocktail into a convenience store, burning several people inside. Mot. at 2 (Dkt. No. 31).
Robertson does not allege, and the parties do not explain, why Robertson remained housed at MDF for so long. There is no indication that the scheduled hearing on his petition for restoration of sanity ever occurred.
Robertson has a history of depression going back to 1996. Id. ¶ 83. He has been diagnosed with dysthymia (which he describes as a depressed mood that lasts for at least two years, also known as Persistent Depressive Disorder) by several doctors, and has been prescribed antidepressants for over ten years. Id. ¶¶ 83-84; see also Oppo. at 1-2 (Dkt. No. 36). He states that his depression is well documented by the various institutions in which he has resided since 1996, including several institutions within the California Department of State Hospitals and the California Department of Corrections. FAC ¶ 84; see also Oppo. at 2. In addition to depression, Robertson has a history of anxiety and insomnia. FAC ¶ 84.
Upon his arrival at MDF, and throughout his time there, Robertson complained to numerous individuals, both orally and in writing, about his status as a civil detainee and about his depression, anxiety, and insomnia. See, e.g., id. ¶¶ 72-75, 82-85. Nevertheless, Robertson was placed in administrative segregation in "Section C" of "D Module" shortly after arriving at MDF. Id. ¶ 71. He remained there for approximately two-and-a-half years, until December 7, 2014, when he was transferred to administrative segregation in "M Module" and "Q Module" for the remainder of his incarceration at MDF. Id. ¶ 76. During Robertson's administrative segregation in D Module, Health Services employee and individual defendant Patricia Posada observed in her November 1, 2013 progress note that Robertson "presents upset and irritable with dysthymia." Id. ¶ 83. Another progress note, this one signed by Health Services employee and individual defendant Melovora Jackson, states that Robertson "is a candidate for psychiatric treatment." Id.
Robertson alleges that he began complaining about his status as a civil detainee and his not-guilty-by-reason-of-insanity verdict upon his arrival at MDF in June 2012. See FAC ¶ 70. It is not as clear when he began complaining specifically about his mental health. The first complaint specifically about his mental health that he describes in the FAC was in June 2013. See id. ¶ 83.
Robertson describes D Module as
a restrictive, punitive environment designed to limit movement. All cells have single beds, and are equipped with microphones that can be used at any time and without notice by jail staff to monitor inmate communications. Doors operate only by computer. Toilets are controlled by timers. Harsh fluorescent lights shine on inmate bunks 24 hours per day, disorienting inmates and making sleep difficult. There are no reflective mirrors to facilitate the adequate maintenance of one's appearance. One single, solitary hour of out-of-cell time every other day is afforded to inmates in the D Module . . . Section C lacks a yard and its residents can access a yard only on the weekend, through reservation, and at most only once per week.Id. ¶ 66. He describes M and Q Modules as somewhat less restrictive, although administrative segregation in those Modules also involves a high degree of isolation and significantly limited out-of-cell time. Id. ¶¶ 67-68.
Robertson alleges that his "mental health and psychiatric functioning significantly deteriorated as a result of the punitive nature of his conditions of confinement," and that this deterioration was "magnified by defendants' failure to provide him with adequate mental health care." Id. ¶ 83. With respect to the lack of adequate mental health care, Robertson highlights (1) that MDF does not offer therapeutic programming for any inmates suffering from mental illness and that he was not provided with any individual or group therapy, despite his requests, id. ¶¶ 61, 82; and (2) that he was repeatedly denied medication for his mental illness, id. ¶ 82. He states that "other inmates without the same psychiatric disability [as him] received greater access to programming and/or appropriate medication for their mental illness." Id. ¶ 85.
According to County Defendants, Robertson voluntarily withdrew his petition for restoration of sanity in 2015. Mot. at 2. He is currently detained at Coalinga State Hospital. FAC ¶ 8.
I. PROCEDURAL BACKGROUND
Robertson filed this action pro se on June 9, 2015. Dkt. No. 1. On November 30, 2015, I dismissed his complaint with leave to amend and stayed the case pending appointment of counsel pursuant to the Federal Pro Bono Project. Dkt. Nos. 9, 10. Robertson, represented by counsel, filed the FAC on April 14, 2016. Dkt. No. 20.
The FAC names 41 defendants and brings 11 causes of action. The defendants are organized into four categories: (1) the County Defendants, (2) the "Supervisory Defendants," (3) the "Sheriff's Office Employee Defendants," and (4) the "Health Services Defendants." FAC ¶¶ 50-53. As noted above, the County Defendants are the County, the Sherriff's Office, and Health Services. Id. ¶ 50. The other categories of defendants are comprised of individual employees of the County. Id. ¶¶ 51-53.
The 11 causes of action are (1) section 1983, for "overus[ing] continuous administrative segregation for mentally ill individuals," in violation of the Eighth Amendment, id. ¶ 99; (2) section 1983, for denial of Robertson's "right to timely access to adequate mental health care," in violation of the Eighth Amendment, id. ¶ 101; (3) section 1983, for failing to provide Robertson with "more considerate treatment and conditions of confinement than sentenced inmates whose conditions of confinement are designed to punish," in violation of the Fourteenth Amendment, id. ¶ 103; (4) violation of article 1, section 17 of the California Constitution, for "overus[ing] continuous administrative segregation for mentally ill individuals," id. ¶ 105; (5) violation of article I, section 17 of the California Constitution, for denial of Robertson's "right to timely access to adequate mental health care," id. ¶ 107; (6) violation of article I, section 7 of the California Constitution, for failing to provide Robertson with "more considerate treatment and conditions of confinement than sentenced inmates whose conditions of confinement are designed to punish," id. ¶ 109; (7) violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, id. ¶¶ 110-17; (8) violation of the ADA, 42 U.S.C. § 12188, id. ¶¶ 118-21; (9) violation of the Rehabilitation Act, 29 U.S.C. § 794, id. ¶¶ 122-26; (10) violation of California Civil Code section 11135, id. ¶¶ 127-30; and (11) violation of California Civil Code section 52.1, id. ¶¶ 131-40.
Robertson seeks declaratory judgment, an injunction prohibiting defendants from "continuing the unlawful acts, conditions, and practices described in [the FAC]," compensatory and punitive damages, and reasonable attorney's fees and costs. FAC at Prayer for Relief.
Robertson served County Defendants with the FAC on April 20 and 21, 2016. Dkt. No. 29. He has not yet served the FAC on any of the individual defendants. Dkt. No. 40. County Defendants filed their motion to dismiss on May 26, 2016. Dkt. No. 31 ("Mot."). They do not dispute that Robertson's third cause of action states a claim but move to dismiss each of his other causes of action under Federal Rule of Civil Procedure 12(b)(6). Mot. at 1-2. They also argue that Robertson lacks standing to seek injunctive relief (given that he is no longer incarcerated at MDF), and that the Sheriff's Office and Health Services should be dismissed from the first and second causes of action as improper entity defendants under section 1983. Id. at 9-10. I heard argument from the parties on July 19, 2016. Dkt. No. 43.
The parties have stipulated to an extension of Robertson's deadline to serve the FAC on the individual defendants until October 11, 2016. Dkt. No. 40.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and alterations omitted).
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a complaint "need not contain detailed factual allegations" to survive a Rule 12(b)(6) motion, "it must plead enough facts to state a claim to relief that is plausible on its face." Cousins v. Lockyer, 568 F.3d 1063, 1067-68 (9th Cir. 2009) (internal quotation marks and citations omitted). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
In considering whether a claim satisfies this standard, the court must "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marines Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, "conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal." Cousins, 568 F.3d at 1067 (internal quotation marks omitted). A court may "reject, as implausible, allegations that are too speculative to warrant further factual development." Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013).
DISCUSSION
I. IMPROPER ENTITY DEFENDANTS UNDER SECTION 1983
County Defendants move to dismiss the Sheriff's Office and Health Services from the first and second causes of action as improper entity defendants under section 1983. Mot. at 10; see also Oppo. at 21-23; Reply at 10-11 (Dkt. No. 38). This portion of the County Defendants' motion is GRANTED. The Ninth Circuit has observed that "municipal police departments and bureaus are generally not considered 'persons' within the meaning of [section] 1983," United States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005), and numerous district courts have dismissed from section 1983 actions entity defendants analogous (or identical) to the Sheriff's Office and Health Services, see, e.g., Drouin v. Contra Costa Cty. Sheriff's Dep't, No. 15-cv-03694-KAW, 2015 WL 7258146, at *2-3 (N.D. Cal. Nov. 17, 2015) (dismissing section 1983 claims against the "Contra Costa County Sheriff's Department" on the ground that "[s]heriff's departments and police departments are not usually considered legal entities subject to suit") (internal quotation marks omitted); Roy v. Contra Costa Cty., No. 15-cv-02672-TEH, 2015 WL 5698743, at *3 (N.D. Cal. Sept. 29, 2015) (same, with respect to section 1983 claims against the "Contra Costa County Sheriff's Office"); Castro v. City of Union City, No. 14-cv-00272-MEJ, 2014 WL 4063006, at *5 (N.D. Cal. Aug. 14, 2014) (same, with respect to section 1983 claims against the Union City Police Department). In line with these decisions, the first and second causes of action are DISMISSED WITHOUT LEAVE TO AMEND with respect to the Sherriff's Office and Health Services.
County Defendants do not object to the Sheriff's Office and Health Services being named as defendants under the third cause of action, which is also brought under section 1983.
II. ROBERTSON'S CRUEL AND UNUSUAL PUNISHMENT CLAIMS
Robertson's first, second, fourth, and fifth causes of action allege violations of the Eighth Amendment's prohibition of cruel and unusual punishment, and of the analogous provision of the California Constitution (article I, section 17). County Defendants initially moved to dismiss these causes of action on the ground that "[c]laims brought by an inmate held based on a civil commitment are analyzed under the Fourteenth Amendment, not the Eighth Amendment." Mot. at 3; see also Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004). Robertson responded by conceding that the causes of action were improperly pleaded as cruel and unusual punishment claims but "invit[ing] County Defendants to stipulate that [his] Eighth Amendment claims be treated as Fourteenth Amendment claims and that his claims for violations of article I, section 17 of the California Constitution be considered as violations of article I, section 7." Oppo. at 5. County Defendants have agreed to this modification of the claims. Reply at 2. They argue, however, that Robertson's first, second, fourth, and fifth causes of action still fail because he has not adequately alleged that MDF officials failed to exercise professional judgment in their care of him. Id. at 2-6.
That section provides that "[c]ruel or unusual punishment may not be inflicted or excessive fines imposed." Cal. Const. art. I, § 17.
The parties appear to agree that, under the due process guarantees of the Fourteenth Amendment and article I, section 7 of the California Constitution, a decision regarding the medical care of a civil detainee made by a professional is "presumptively valid," and may support liability "only when the decision . . . is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg v. Romeo, 457 U.S. 307, 323 (1982); see also Oppo. at 6; Reply at 4. The Ninth Circuit has held that this "Youngberg professional judgment standard" requires that, "in the face of known threats to patient safety, state officials may not act (or fail to act) with conscious indifference, but must take adequate steps in accordance with professional standards to prevent harm from occurring." Ammons v. Washington Dep't of Soc. & Health Servs., 648 F.3d 1020, 1027, 1030 (9th Cir. 2011) (internal quotation marks omitted). The standard "differs from the 'deliberate indifference' standard used in Eighth Amendment cruel and unusual punishment cases, in that persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016) (internal quotation marks, alterations, and emphasis omitted). Nevertheless, "the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." Youngberg, 457 U.S. at 321 (internal quotation marks omitted).
Robertson argues that he has adequately pleaded that County Defendants' decisions regarding his mental health care substantially departed from accepted professional judgment, based on his allegations that he informed County Defendants of his not-guilty-by-reason-of-insanity verdict and his worsening mental health problems, yet they continued to house him in administrative segregation and refused to provide him with therapy or medication. Oppo. at 7. County Defendants respond that Robertson's allegations establish that Robertson "complained to county jail officials that he was suffering from depression, and that those officials considered his complaints, evaluated him, reviewed his medical records . . . , and concluded that he was not suffering from a major mental disorder and did not require any medication." Reply at 6. According to County Defendants, this fact pattern, without more, cannot support liability under the Youngberg professional judgment standard. Id.
I agree with Robertson. The fact of his not-guilty-by-reason-of-insanity verdict and extended civil commitment (of which MDF officials were allegedly aware), combined with his allegations that he made numerous complaints regarding his worsening mental health problems, and that at least two Health Services employees noted his mental health problems yet made no changes in his conditions of confinement, are sufficient to plausibly establish that the decisions regarding his mental health care substantially departed from accepted professional judgment. See Brinkley v. Ahlin, No. 09-cv-01858, 2012 WL 1067159, at *4 (E.D. Cal. Mar. 28, 2012) (plaintiff civil detainee stated claim for deficient medical care under the Youngberg professional judgment standard where plaintiff alleged that defendant was "aware that plaintiff needed some immediate treatment, and that [the treatment] had been ordered by plaintiff's surgeon," yet refused to provide the treatment); Huskey v. Ahlin, No. 09-cv-01576, 2011 WL 5838121, at *2-4 (E.D. Cal. Nov. 21, 2011) (same, where plaintiff alleged that he informed defendant "of the need for immediate dental care [but defendant] delayed [plaintiff's] treatment by . . . over a month [and] denied plaintiff's request to seek immediate treatment from an outside dental care provider at plaintiff's own expense"); Endsley v. Luna, No. 06-cv-06961, 2009 WL 789902, at *5 (C.D. Cal. Mar. 23, 2009) (same, where plaintiff alleged that "defendants [implemented a particular psychiatric treatment] knowing that this interfered with plaintiff's prescribed treatment, would exacerbate plaintiff's psychiatric distress, and would cause plaintiff's regression").
County Defendants may ultimately be able to establish, as a matter of law, that the decisions regarding Robertson's mental health care were within the scope of "professionally acceptable choices." Youngberg, 457 U.S. at 323. But they will have to do so after the parties have had more of an opportunity to develop the factual record. This portion of County Defendants' motion is DENIED.
III. ROBERTSON'S DISABILITY DISCRIMINATION CLAIMS
Robertson's seven, eighth, ninth, and tenth causes of action allege violations of the ADA, the Rehabilitation Act, and California Government Code section 11135 for discriminating against him on the basis of his disability. The parties treat each of these causes of action as requiring a showing of the same four elements: "(1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); see also Oppo. at 11-16; Reply at 6-7. The Ninth Circuit has recognized that the ADA and Rehabilitation Act were designed "to protect disabled persons from discrimination arising out of both discriminatory animus and thoughtlessness, indifference, or benign neglect." Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996) (internal quotation marks omitted). Accordingly, the statues "cover both intentional discrimination and discrimination as a result of facially neutral laws." Id. Even if facially neutral, a policy, practice, or procedure that denies disabled persons meaningful access to state services, programs, or activities by reason of their disability constitutes disability discrimination in violation of the ADA and Rehabilitation Act. Id. at 1485; see also United States Am. v. Cty. of Los Angeles, No. 15-cv-05903, 2016 WL 2885855, at *5 (C.D. Cal. May 17, 2016).
California Government Code section 11135 provides, in relevant part:
(a) No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state . . .Cal. Govt. Code § 11135(a), (b).
(b) With respect to discrimination on the basis of disability, programs and activities subject to subdivision (a) shall meet the protections and prohibitions contained in Section 202 of the federal Americans with Disabilities Act of 1990 (42 U.S.C. § 12132), and the federal rules and regulations adopted in implementation thereof, except that if the laws of this state prescribe stronger protections and prohibitions, the programs and activities subject to subdivision (a) shall be subject to the stronger protections and prohibitions.
County Defendants argue that Robertson's disability discrimination claims should be dismissed because Robertson has not adequately alleged that he was placed in administrative segregation because of his disability. Mot. at 7-8. I disagree. Robertson specifically alleges that he was placed in administrative segregation "because of his psychiatric disability." Id. ¶¶ 89, 117, 121, 130. He also alleges that upon his arrival at MDF he immediately informed multiple individual defendants that he had been civilly committed for more than fifteen years pursuant to a not-guilty-by-reason-of-insanity verdict, and that his mental health problems were well documented by the institutions in which he had previously resided. Id. ¶¶ 84-85. These allegations, while thin, are sufficient to raise a plausible inference that Robertson was placed in administrative segregation by reason of his psychiatric disability. I recognize that there is some tension between Robertson's assertion that he was placed in administrative segregation because of his psychiatric disability, and his allegations that he was told that he was placed in administrative segregation because he "ha[d] open criminal charges," id. ¶¶ 73, 79, 84, and that Health Services employee and individual defendant David Ezra examined him and concluded that there was "no evidence of any major me[n]tal disorder" and "[n]o indication for medication referral," id. ¶ 83 (internal quotation marks and alterations omitted). However, I do not think that this tension is so great as to make Robertson's disability discrimination claims implausible. See S. Coast Properties, LLC v. T-Mobile W., LLC, No. 15-cv-03888, 2015 WL 4554368, at *8-9 (C.D. Cal. July 28, 2015) (finding plaintiff's allegations "somewhat inconsistent" but nevertheless sufficient to survived a Rule 12(b)(6) motion).
In their opening brief, County Defendants also argued that Robertson had not adequately alleged that he had a disability. Mot. at 7. County Defendants do not reassert this argument in their reply brief and appear to have abandoned it. See Reply at 6-8.
Accordingly, this portion of County Defendants' motion is DENIED. The seventh through tenth causes of action may proceed. Cf. Biselli v. County of Ventura, 2012 U.S. Dist. LEXIS 79326, *43-45 (C.D. Cal. June 4, 2012) (finding a genuine issue of material fact on an ADA claim based on a pretrial detainee's incarceration in administrative segregation, where the plaintiffs "adduced evidence reflecting that [the pretrial detainee] was classified by the jail to be housed in [administrative segregation], the most restrictive area of the jail, based on conduct that was specifically linked to his mental illness").
IV. COMPLIANCE WITH THE CALIFORNIA TORT CLAIMS ACT
Robertson's fourth, fifth, sixth, tenth, and eleventh causes of action all bring claims under California state law. County Defendants move to dismiss these claims on the ground that Robertson has not alleged that he complied with the claim presentation requirements of the California Tort Claims Act ("CTCA"). Mot. at 8-9. Robertson admits that he did not comply with the CTCA but argues that his California state law claims may still proceed because they are for equitable relief, not money damages. Oppo. at 17-18; see also Snipes v. City of Bakersfield, 145 Cal. App. 3d 861, 870 (1983) (noting that the CTCA "exempts actions seeking specific relief other than money or damages, such as injunctive or declaratory relief"). County Defendants respond that Robertson's request for equitable relief is "merely incidental" to his request for money damages, and that the claims are therefore still subject to the CTCA. Reply at 8-9; see also Loehr v. Ventura Cty. Cmty. Coll. Dist., 147 Cal. App. 3d 1071, 1081 (1983) (holding that the general rule that the CTCA does not apply to claims for equitable relief "has no application . . . where a petition for extraordinary relief is merely incidental or ancillary to a prayer for damages," and the "primary purpose of [the] claims is pecuniary in nature").
The CTCA does not bar Robertson's claims under California state law. This is not a case where the request for equitable relief is merely incidental or ancillary to the request for money damages. Money damages are not even available under Robertson's fourth, fifth, sixth, and tenth causes of action. See Oppo. at 17; Reply at 8-9. Those causes of action bring claims under article I, section 7 of the California Constitution, article I, section 17 of the California Constitution, and California Government Code section 11135, none of which allows for private actions for money damages. See Katzberg v. Regents of Univ. of California, 29 Cal.4th 300, 324 (2002) (finding "no indication [of] an implied right to seek damages for a violation of the due process liberty interest" protected by of article I, section 7 of the California Constitution); Giraldo v. California Dep't of Corr. & Rehab., 168 Cal. App. 4th 231, 256 (2008) (finding "no basis to recognize a claim for damages under article I, section 17 of the California Constitution"); Donovan v. Poway Unified Sch. Dist., 167 Cal. App. 4th 567, 594-95 (2008) (noting that the private right of action available under section 11139 is limited to a "civil action for equitable relief) (internal quotation marks omitted). County Defendants assert that monetary damages are available under Robertson's eleventh cause of action, for violation of California Civil Code section 52.1. Reply at 9. But even assuming that they are, Robertson states that he is seeking only equitable relief under that cause of action, not money damages. Oppo. at 18.
Given that Robertson's claims under California law seek only equitable relief, I cannot say that the "primary purpose of [those] claims is pecuniary in nature." Loehr, 147 Cal. App. 3d at 1081; see also Khan v. San Francisco Hous. Auth., No. 07-cv-06209-CW, 2008 WL 2024600, at *4 (N.D. Cal. May 8, 2008) (finding that plaintiffs' request for injunctive relief was not ancillary to their request for money damages where "th[e] case [was] primarily about plaintiffs' desire to be afforded safe housing free from discriminatory threats, intimidation, and victimization, not about recovery for a pecuniary injury"). This portion of County Defendants' motion is DENIED.
V. INJUNCTIVE RELIEF
Robertson seeks "[a]n order enjoining defendants, their agents, officials, employees, and all persons acting in concert with them under color of state law or otherwise, from continuing the unlawful acts, conditions, and practices described in this complaint." FAC at Prayer for Relief. County Defendants argue that Robertson cannot pursue this request because he is no longer housed at MDF and therefore lacks standing to seek injunctive relief. Mot. at 9-10. Robertson responds by pointing to paragraph 90 of the FAC, where he alleges that
Plaintiff ROBERTSON will continue to seek to have his sanity restored. A petition for the restoration of sanity filed by Plaintiff ROBERTSON will be heard by the Contra Costa County Superior Court. Accordingly, there is a realistic probability that Plaintiff ROBERTSON will be subjected to Defendants' unlawful acts, omissions, policies, and practices discussed herein because he is likely to be returned to MDF in connection with further proceedings related to his pursuit of the restoration of his sanity.Oppo. at 19 (quoting FAC ¶ 90). Robertson also submits a declaration in which he states that his "petition for restoration of sanity is currently pending in Contra Costa County Superior Court (Case No. 5-120327-2)." Robertson Decl. ¶ 2 (Dkt. No. 36-1). He asserts that "[w]hen [he] attends his [restoration of sanity] hearing . . . , he will be returned to MDF and placed in punitive conditions of confinement and subjected to inadequate accommodation and mental health services." Oppo. at 19.
"[W]here, as here, a plaintiff seeks prospective injunctive relief, he must demonstrate that he is realistically threatened by a repetition of the violation." Armstrong v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) (internal quotation marks, alterations, and emphasis omitted); accord Nordstrom v. Ryan, 762 F.3d 903, 911 (9th Cir. 2014). Robertson has clearly made this showing based on his allegations and declaration regarding his continuing efforts to have his sanity restored. County Defendants respond by requesting judicial notice of a minute order from People v. Randy David Robertson, Case No. 05-951996-8, stating that there are "no further court dates" in the case, Dkt. Nos. 37, 37-1, but according to Robertson's declaration, his currently pending petition for restoration of sanity is docketed as Case No. 5-120327-2, not Case No. 05-951996-8. See Robertson Decl. ¶ 2. Although it is not clear from the record, the minute order submitted by County Defendants appears to concern Robertson's original (and undisputedly withdrawn) petition for restoration of sanity, not his currently pending one. At best, that minute order raises a factual dispute, not appropriate for resolution on a motion to dismiss, regarding the status of Robertson's currently pending petition for restoration of sanity. It does not preclude Robertson from "demonstrat[ing] that he is realistically threatened by a repetition of the violation[s]" alleged in the FAC. Armstrong, 275 F.3d at 860-61.
County Defendants' request for judicial notice is GRANTED.
Robertson has established standing to seek injunctive relief for County Defendants' alleged misconduct. This portion of County Defendants' motion is DENIED.
CONCLUSION
For the foregoing reasons, County Defendants' motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND to the extent that it seeks to dismiss the Sheriff's Office and Health Services from the first and second causes of action as improper entity defendants under section 1983. In all other respects, the motion is DENIED. County Defendants shall file their answer within 14 days of the date of this Order.
IT IS SO ORDERED. Dated: August 11, 2016
/s/_________
WILLIAM H. ORRICK
United States District Judge