1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 LARRY RICHARDS, Case No. 22-cv-04652-LB

12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 13 v. DISMISS

14 MARK ESSICK, et al., Re: ECF No. 23

15 Defendants. 16 17 INTRODUCTION 18 The plaintiff, who is representing himself and proceeding in forma pauperis, sued Sonoma 19 County jail staff (among others) on the grounds that while he was in custody, they denied him 20 phone calls required by California Penal Code § 851.5 and denied him access to his medications, 21 in violation of federal civil-rights laws allowing him the calls, accommodation for his disabilities, 22 and constitutionally adequate medical care. He also claims that the defendants’ conduct was 23 intentional infliction of emotional distress (IIED).1 Sonoma County and Sherriff Mark Essick 24 moved to dismiss the IIED claim under Federal Rule of Civil Procedure 12(b)(6), arguing that the 25 County is immune and there are no factual allegations against Sherriff Essick.2 The court can 26 27 1 Compl. – ECF No. 1 at 1–3. Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 decide the matter without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The court denies the motion 2 as to the County and grants the motion without prejudice as to Sherriff Essick. 3 4 STATEMENT 5 On August 8, 2022, while the plaintiff was assisting his caregiver with legal matters, the two 6 “began arguing over their situation and being late.” The plaintiff became “loud and so persons in 7 the area called the police.”3 He was arrested and detained in the Sonoma County Regional Adult 8 Detention Center for eight hours before being released on his own recognizance. His caregiver 9 “dropped the charges instantly, while [he] was being transported” from the place of arrest.4 10 During the detention, the plaintiff — who is “medically fragile” and takes more than twenty 11 “life essential medications” — repeatedly asked jail staff for his medications because his heart was 12 palpitating and he had a migraine headache. The staff denied him access to medications, and he 13 eventually vomited due to the migraine. Less than twenty minutes before his release, staff 14 conducted a medical evaluation, but they did so only because they “needed the paperwork in their 15 files to give the appearance of proper process.” This timeline means that he was denied essential 16 medications for over ten hours in total (including eight hours in custody).5 17 The plaintiff also repeatedly asked for access to a phone to try to get access to his medications. 18 Staff denied his requests.6 In his “seventh hour of incarceration,” someone gave him “an alleged 19 code that would operate his phone,” but the code did not work.7 After the code failed, the plaintiff 20 “vociferously complained of still being denied phone calls[,] and nothing was done — in fact [the] 21 defendants laughed.”8 22 23 3 Compl. – ECF No. 1 at 2. 4 Id. at 2–3. 24 5 Id. at 3. 25 6 Id. 26 7 Mot. for TRO – ECF No. 4 at 3; Telephone Instructions, Ex. 1 to id. – ECF No. 4 at 5. Some of the filings may not be subject to judicial notice or consideration under the incorporation-by-reference 27 doctrine. Knievel v. ESPN,

(9th Cir. 2005); Lee v. City of Los Angeles,

, 689–90 (9th Cir. 2001). To the extent that the court references those filings, it is for context. 1 Also during the detention, staff members refused to give the plaintiff a wheelchair and cracked 2 his cell window by repeated pounding.9 In addition, custodial staff “us[ed] extreme force upon 3 [the] plaintiff and lock[ed] him alone into maximum security.”10 And when the detention-center 4 staff converted the plaintiff’s cash into a credit card, they effectively prevented him from taking a 5 bus back to where he lives after his release.11 6 The defendants named in the complaint are (1) Sonoma County Sheriff Mark Essick, (2) the 7 people of Sonoma County, (3) Sonoma County, (4) the Sonoma County Regional Adult Detention 8 Center, (5) all staff at the detention center, and (6) 5,000 Doe defendants.12 Additional defendants 9 identified in the caption of a later motion for a hearing are (7) Brandon Cutting, Professional 10 Standards Lieutenant, (8) James Naugle, Assistant Sheriff, Law Enforcement Division, (9) Eddie 11 Engram, Assistant Sheriff, Detention Division, and (10) Heidi Keith, Chief of Financial and 12 Administrative Services.13 The plaintiff sues the defendants in their individual and official 13 capacities.14 14 Liberally construed, the plaintiff’s claims are as follows: (1) disability discrimination under 15 Title II of the Americans with Disabilities Act (ADA),

, (2) a violation of the 16 Fourteenth Amendment for denial of adequate medical care, (3) a violation of the Fourteenth 17 Amendment for denial of state-mandated phone calls under California Penal Code § 851.5, and (4) 18 intentional infliction of emotional distress.15 19 The court has federal-question jurisdiction under

and supplemental 20 jurisdiction over the state claim under

. All parties consented to magistrate-judge 21 jurisdiction.16 22 23 9 Exs. to Mot. for TRO – ECF No. 7 at 6. 10

. 24 11

. 25 12 Compl. – ECF No. 1 at 1; Order – ECF No. 26. 26 13 Mot. for Hr’g – ECF No. 10 at 2. 14 Compl. – ECF No. 1 at 1; Mot. for Hr’g – ECF No. 10 at 1–2. 27 15 Compl. – ECF No. 1 at 2–3. 1 STANDARD OF REVIEW 2 A complaint must contain a “short and plain statement of the claim showing that the pleader is 3 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 4 which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly,

(2007). A 5 complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the 6 ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic 7 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 8 raise a right to relief above the speculative level.” Twombly,

(cleaned up). 9 Put another way, a complaint must contain sufficient factual allegations that, when accepted as 10 true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

, 678 11 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc.,

, 12 234 (9th Cir. 2020). “[O]nly the claim needs to be plausible, and not the facts themselves.” 13 NorthBay, 838 F. App’x at 234 (citing Iqbal,

); see Interpipe Contracting, Inc. v. 14 Becerra,

, 886–87 (9th Cir. 2018) (a court must accept the fact allegations “as true 15 and construe them in the light most favorable to the plaintiff”) (cleaned up). “A claim has facial 16 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 17 inference that the defendant is liable for the misconduct alleged.” Iqbal,

. “The 18 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 19 possibility that a defendant has acted unlawfully.”

“Where a complaint pleads facts that are 20 merely consistent with a defendant’s liability, it stops short of the line between possibility and 21 plausibility of ‘entitlement to relief.’”

(cleaned up). Still, “a formulaic recitation of the 22 elements of a cause of action will not do.” Twombly,

. 23 A court should construe pro se complaints liberally, “particularly in civil rights cases.” Hebbe v. 24 Pliler,

(9th Cir. 2010). Thus, a pro se plaintiff need only provide defendants with 25 fair notice of his claims and the grounds upon which they rest. Hearns v. Terhune,

, 26 1043 (9th Cir. 2005). But a court “may not supply essential elements of the claim that were not 27 initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska,

(9th Cir. 1982). 1 If a court dismisses a complaint, it should give leave to amend unless the “pleading could not 2 possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 3

(9th Cir. 2016) (cleaned up). 4 5 ANALYSIS 6 First, Sonoma County argues that as a public entity, it is immune from the IIED claim under 7 Cal. Gov’t Code § 844.6.17 That statute provides that unless an enumerated exception applies, “a 8 public entity is not liable for . . . [a]n injury to any prisoner.” Cal. Gov’t Code § 844.6(a)(2). One 9 exception is set forth in Cal. Gov’t Code § 845.6: 10 Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a 11 prisoner in his custody; but . . . a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee 12 knows or has reason to know that the prisoner is in need of immediate medical care 13 and he fails to take reasonable action to summon such medical care. 14 This exception “is not written in terms of causes of action like . . . IIED,” and instead applies to 15 “injuries ‘proximately caused by the failure of the employee to furnish or obtain medical care for a 16 prisoner.’” Steel v. Alameda Cnty. Sheriff’s Off.,

, 244 (N.D. Cal. 2019). 17 The court denies the County’s motion to dismiss. Especially when liberally construed, the 18 allegations underlying the IIED claim plausibly establish that County jail staff knew of a need for 19 immediate medical care, they failed to summon that care, and the plaintiff suffered an injury 20 proximately caused by that failure. (Indeed, the complaint can be construed to assert an 21 independent claim under § 845.6.18 See, e.g., Gillespie v. Cnty. of Alameda, No. 20-cv-03735- 22 DMR,

, at *1 (N.D. Cal. Aug. 31, 2020) (claims can be brought under 23 § 845.6).) That jail stuff conducted a medical evaluation after seven hours of detainment does not 24 change the outcome. Pajas v. Cnty. of Monterey, No. 16-cv-00945-LHK,

, at 25 *14 (N.D. Cal. July 8, 2016) (denying motion to dismiss § 845.6 claim where the defendant “did 26

27 17 Mot. – ECF No. 23 at 4–5. ] not summon medical care for four hours’). It also does not change the outcome that the plaintiff 2 || does not mention § 845.6 in his complaint and instead asserts an IIED claim. See Resendiz v. Cnty. 3 || of Monterey, No. 14-cv-05495-LHK,

, at *8 (N.D. Cal. June 30, 2015) (§ 845.6 4 || was a viable statutory basis for public-entity liability for negligent-supervision and wrongful-death 5 claims even though § 845.6 was not cited in the complaint). 6 Second, as Sherriff Essick argues, there are no allegations against him to support the ITED 7 || claim.’ ITED claims can be brought only against “those defendants who were personally involved 8 in the alleged wrongs.” Johnson v. Davis, No. 20-cv-04023-LHK,

, at *3 (N.D. 9 || Cal. Dec. 3, 2021). The court thus dismisses the IED claim against Sherriff Essick without 10 || prejudice. 11 CONCLUSION 12 The court denies Sonoma County’s motion to dismiss the ITED claim and grants without 13 || prejudice Sherriff Essick’s motion to dismiss that claim. The plaintiff may file an amended 14 || complaint by February 3, 2023. 15 IT IS SO ORDERED. 2 16 Dated: January 6, 2023 BC LAUREL BEELER 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 □□ Mot. — ECF No. 23 at 5-6.