Brown v. County of Mariposa

2

3 UNITED STATES DISTRICT COURT

4 FOR THE EASTERN DISTRICT OF CALIFORNIA

5

6 JEFFREY BROWN, 1:18-cv-01541-LJO-SAB

7 Plaintiff, MEMORANDUM DECISION AND ORDER RE DEFENDANT JOHN C. 8 v. FREMONT HEALTHCARE’S MOTION TO DISMISS SECOND AMENDED 9 COUNTY OF MARIPOSA; DOUG COMPLAINT (ECF No. 32) BINNEWIES; CODY HART; SEAN LAND; 10 JOHN C. FREMONT HEALTHCARE DISTRICT; and DOES 1-30, 11 Defendants. 12

13 I. INTRODUCTION

14 Plaintiff Jeffrey Brown (“Plaintiff”) was injured during the course of his arrest and was taken to

15 the Mariposa County Jail, where he alleges that he was denied necessary medical care for more than five

16 months. Plaintiff brings this case against the County of Mariposa; County employees Cody Hart, Sean

17 Land, and Doug Binnewies; John C. Fremont Healthcare District (“Fremont”); and Does 1-30, alleging

18 deliberate indifference under 42 U.S.C. § 1983, a related municipal liability claim premised upon Monell

19 v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), and a state law cause of

20 action under California’s Bane Act, Cal. Civ. Code § 52.1, et seq.

21 Before the Court for decision is Defendant Fremont’s motion to dismiss the Monell claim and the

22 punitive damages prayer from the Second Amended Complaint. ECF No. 32. Plaintiff opposed. ECF

23 No. 35. Defendant replied. ECF No. 36. This matter is suitable for disposition without oral argument.

24 See Local Rule 230(g).

25 2 On July 2, 2017, Plaintiff was injured while being arrested and was taken to the Mariposa

3 County Jail. ECF No. 31, Second Amended Complaint (“SAC”) 1, 16. He suffered injuries to his face

4 that broke and splintered the bones around his right eye and cheek creating “deformity, swelling[,] and

5 pain.” Id. at 17. He also suffered injuries to his jaw. Id. In addition, his right shoulder was injured,

6 including a broken bone and tearing to his cartilage, tendons, and ligaments, resulting in “swelling,

7 deformity, limitation of movement[,] and pain.” Id.

8 Defendants Hart and Land were at all relevant times correctional lieutenants/commanders of the

9 Mariposa County Jail. Id. 7-8. Mariposa County contracted with Defendant Fremont to provide on-

10 site medical services to the Mariposa County Jail. Id. 11. The orthopedist who evaluated Plaintiff’s

11 shoulder injury and the “multiple doctors or surgeons” who examined Plaintiff’s facial injuries informed

12 Fremont, Hart, Land, Does 1-20, and Mariposa County that Plaintiff needed immediate surgeries and

13 that delay would result in additional medical procedures, more complicated medical procedures, or both,

14 which would likely result in worse outcomes than if medical care were rendered sooner. Id. 20.

15 Despite being aware of the doctors’ recommendations, these Defendants refused to allow Plaintiff to

16 have the surgeries. Id. 21.

17 Plaintiff remained in the Mariposa County Jail until he was tried and acquitted of all felony

18 charges arising from the arrest. Id. 28. He was released on November 14, 2017. Id. Plaintiff had the

19 first set of surgical procedures to address his facial fractures on December 15, 2017, and he underwent

20 shoulder surgery on May 5, 2018. Id. 29, 30. The shoulder surgery was “only a partial success” due to

21 improper healing resulting from Defendants’ delay, and the facial surgery likewise was more

22 complicated and less successful than it would have been had it taken place in a timely manner. Id. As a

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24 1 Unless otherwise noted, the facts are taken from the SAC, ECF No. 31. For purposes of Defendant’s motion to dism iss, all alleged material facts are construed in the light most favorable to the Plaintiff. 25 2 and shoulder. Id. 31.

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4 III. LEGAL STANDARD

5 Dismissal is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure when a

6 plaintiff’s allegations fail “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A

7 dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence of

8 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d

9 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court

10 generally accepts as true the allegations in the complaint, construes the pleading in the light most

11 favorable to the party opposing the motion, and resolves all doubts in the pleader’s favor. Lazy Y Ranch

12 LTD. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

13 Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is

14 entitled to relief’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon

15 which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355

16 U.S. 41, 47 (1957)). To overcome a Rule 12(b)(6) challenge, the complaint must allege “enough facts to

17 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim is plausible on its

18 face when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that

19 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A

20 plausible claim is one which provides more than “a sheer possibility that a defendant has acted

21 unlawfully.” Id. A claim which is possible, but which is not supported by enough facts to “nudge [it]

22 across the line from conceivable to plausible . . . must be dismissed.” Twombly, 550 U.S. at 570.

23 A complaint facing a Rule 12(b)(6) challenge “does not need detailed factual allegations [but] a

24 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

25 conclusions, and a formulaic recitation of the element of a cause of action will not do.” Id. at 555 2 allegations respecting all the material elements necessary to sustain recovery under some viable legal

3 theory.” Id. at 562. To the extent that any defect in the pleadings can be cured by the allegation of

4 additional facts, the plaintiff should be afforded leave to amend, unless the pleading “could not possibly

5 be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc.,

6 911 F.2d 242, 247 (9th Cir. 1990).

7 IV. DISCUSSION

8 Fremont moves to dismiss the Monell claim, the only claim leveled against Fremont. The Monell

9 claim was previously dismissed with leave to amend. In a May 6, 2019 Order, this Court set forth the

10 applicable standards:

11 . . . Monell, [] 436 U.S. 658 [], [] provides that municipalities may be liable for unconstitutional acts under § 1983. Monell is clear, however,

12 that “a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor—or, in other words, a municipality cannot be held

13 liable under § 1983 on a respondeat superior theory.” 436 U.S. at 691. Instead, a municipality can only be held liable for injuries caused by the

14 execution of its policy or custom or by those whose edicts or acts may fairly be said to represent official policy. Id. at 694. A “policy” is a

15 “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing

16 final policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). “In addition, a local

17 governmental entity may be liable if it has a ‘policy of inaction and such inaction amounts to a failure to protect constitutional rights.’” Lee v. City

18 of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). More generally, a plaintiff

19 must show the following: (1) the plaintiff was deprived of a constitutional right; (2) the defendant had a policy or custom; (3) the policy or custom

20 amounted to deliberate indifference to the plaintiff’s constitutional right; and (4) the policy or custom was the moving force behind the

21 constitutional violation. Mabe v. San Bernardino County, 237 F.3d 1101, 1110-11 (9th Cir. 2001).

22 A policy or custom may be shown under Monell by establishing the

23 existence of: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a longstanding practice or custom which constitutes the

24 “standard operating procedure” of the local government entity; (3) the decision of a decision-making official who was, as a matter of state law, a

25 final policymaking authority and whose edicts or acts may fairly be said to final policymaking authority either delegated that authority to, or ratified 2 the decision of, a subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014); Price v. Sery, 513 F.3d 962, 966 (9th Cir.

3 2008). A policy is “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for

4 establishing final policy with respect to the subject matter in question.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see

5 also Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) (same). “In addition, a local governmental entity may be liable if it has a ‘policy of

6 inaction and such inaction amounts to a failure to protect constitutional rights.’” Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001)

7 (quoting Oviatt, 954 F.2d at 1474). A custom is “a widespread practice that, although not authorized by written law or express municipal policy,

8 is so permanent and well-settled as to constitute a custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los

9 Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). An unwritten policy or custom must be so “persistent and

10 widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (internal quotation marks omitted). “Liability for

11 improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and

12 consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). However,

13 “contemporaneous or subsequent conduct cannot establish a pattern of violations that would provide ‘notice to the [municipality] and the

14 opportunity to conform to constitutional dictates.’” Connick v. Thompson, 563 U.S. 51, 63 n.7 (2011).

15 Additionally, a municipal defendant is liable only where the

16 municipality’s policies or customs “evince a ‘deliberate indifference’ to the constitutional right and are the ‘moving force’ behind the

17 constitutional violation.” Edgerly v. City & County of San Francisco, 599 F.3d 946, 960 (9th Cir. 2010). Deliberate indifference exists “when the

18 need for more or different action ‘is so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of constitutional

19 rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.’” Oviatt, 954 F.2d at 1477 (quoting

20 City of Canton v. Harris, 489 U.S. 378, 390 (1989)). The deliberate indifference standard for municipalities is an objective one. Castro, 833

21 F.3d at 1076. To show that a policy or custom is the “moving force” behind a violation, a plaintiff must allege facts proving that the policy or

22 custom was “closely related to the ultimate injury,” City of Canton, 489 U.S. at 391, that is, the constitutional violation was caused by the

23 municipal policy or custom. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).

24 Allegations concerning Monell liability based on the existence of a policy

25 are subject to the pleading requirements of Twombly/Iqbal. As the Ninth “may not simply recite the elements of a cause of action, but must contain 2 sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively,” and “the factual

3 allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be

4 subjected to the expense of discovery and continued litigation.” AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)

5 (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). While the Ninth Circuit previously had a liberal pleading standard for Monell claims,

6 “[c]ourts in this circuit now generally dismiss claims that fail to identify the specific content of the municipal entity’s alleged policy or custom.”

7 Little v. Gore, 148 F. Supp. 3d 936, 957 (S.D. Cal. 2015) (citation omitted).

8 ECF No. 30 at 14-17.

9 In its May 6, 2019 Order, the Court indicated that the then-operative First Amended Complaint

10 (“FAC”) hedged on the theory of Monell liability it relied on, citing both a potential express written

11 policy or a longstanding unwritten practice or custom, but found that the “thrust of the FAC is that the

12 named Defendants failed to establish written policies, leading to an unwritten practice that permitted

13 correctional officers to deny Plaintiff access to medically necessary surgeries.” ECF No. 30 at 18. The

14 Court explained that this type of claim required allegations that the “facts available to [entity]

15 policymakers put them on actual or constructive notice that the particular omission is substantially

16 certain to result in the violation of the constitutional rights of their citizens,” and was evaluated under

17 the Monell practice or custom framework, which requires proof of practices of a sufficient duration that

18 the conduct can be said to form a traditional method of carrying out policy at the entity. Id. (reviewing

19 relevant caselaw). Judged against this standard, the FAC’s allegations, which were devoid of any

20 allegations of similar incidents, were deemed insufficient. Id. at 18-19.

21 This time around, the SAC attempts to shift gears by abandoning any attempt to demonstrate a

22 custom or practice and instead indicating that Defendants “have adopted a policy of giving non-

23 medically trained correctional staff the authority to make the final determination about an inmate

24 receiving medically necessary treatment.” SAC 37. As mentioned, a policy or custom may be shown

25 2 official policy,” but the SAC’s allegations of the existence of a formal policy are entirely conclusory. In

3 order to withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more

4 than mere formulaic recitations of the existence of an unlawful policy. AE ex rel. Hernandez v. County

5 of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). As one district court observed: “[w]hile the Court

6 recognizes the inherent difficulty of identifying specific policies absent access to discovery, that is

7 nonetheless the burden of plaintiffs in federal court.” Jones v. Cty. of Contra Costa, No. 13-CV-05552-

8 TEH, 2016 WL 1569974, at (N.D. Cal. Apr. 19, 2016). That burden is particularly important where it

9 is “facially implausible” that the municipal defendant maintains the policy as alleged. Id. Jones

10 concerned an extreme example of an allegation that a municipal defendant maintained a policy that

11 required police officers to attack people during traffic stops without justification. Id. While the alleged

12 policy in the instant case is not quite as patently absurd, it is not far off. The allegation in question – that

13 the Mariposa County Jail maintained a municipal policy giving non-medically trained correctional staff

14 authority to make the final determination about an inmate receiving medically necessary treatment – is

15 facially implausible. Therefore, the Court cannot accept the formulaic recitation of the existence of such

16 a policy. The Court acknowledges that Plaintiff has attached to his complaint documents that indicate

17 someone at the Jail told Dr. Julian, one of Plaintiff’s medical providers, that a surgery Dr. Julian deemed

18 medically necessary “sounded more cosmetic” and that Dr. Julian noted in response that it “[s]ounds like

19 corrections officers are practicing medicine and deciding on what treatment should or could be

20 provided.” SAC, Attachment A. The SAC also contains allegations that non-medical jail staff rejected

21 the recommendations of multiple medical personnel in connection with Plaintiff’s care. SAC, 20-25.

22 But this is the kind of circumstantial evidence that might contribute to a custom or policy claim. It does

23 nothing to establish the existence of a “formal or express” policy, especially in light of the facial

24 implausibility of such a policy actually existing.

25 The Monell claim is DISMISSED. Because Plaintiff already has been given an opportunity to 2 discovery reveal evidence to support the existence of this facially implausible allegation, Federal Rule of

3 Civil Procedure 15 provides a remedy for such a circumstance by way of a motion to amend.

4 Fremont also moves to remove the request for punitive damages from the SAC. In his

5 opposition, Plaintiff indicates that punitive damages are asserted against only the individual, non-entity

6 defendants. Therefore, the motion is DENIED AS MOOT both because the punitive damages prayer is

7 not directed at Fremont and because Fremont is no longer a Defendant.

8 V. CONCLUSION AND ORDER

9 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant Fremont’s Motion to

10 Dismiss (ECF No. 32) is GRANTED IN PART and DENIED IN PART AS MOOT:

11 1. Fremont’s motion to dismiss Plaintiff’s second cause of action for Monell liability is

12 GRANTED WITHOUT LEAVE TO AMEND;

13 2. Fremont’s motion to dismiss any punitive damages prayer against it is DENIED AS MOOT;

14 3. The Clerk of Court is directed to TERMINATE Fremont as a Defendant; and

15 4. This case shall remain OPEN.

16

17 IT IS SO ORDERED.

18 Dated: October 8, 2019 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 19

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 Case No. 1: 18-cv-01541-LJO-SAB

10 SCHEDULING ORDER (Fed. R. Civ. P. 16) JEFFREY BROWN,

11 Discovery Deadlines: Plaintiff, Initial Disclosures: December 9, 2019 12 Non-Expert Discovery: December 9, 2020

Expert Disclosure: November 19, 2020 13 Supp Expert Disclosure: December 18, 2020

Expert Discovery: January 25, 2021 14 v. Dispositive Motion Deadlines: 15 Filing: April 16, 2021

Hearing: Pursuant to Local Rules 16

Pre-Trial Conference: 17 July 28, 2021 at 8:30 a.m. COUNTY OF MARIPOSA, ET. AL., Courtroom 4 18 Defendants. Trial: September 14, 2021 at 8:30 a.m. 19 Courtroom 4 Jury Trial - 5-7 Days 20

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22 23 I. Date of Scheduling Conference 24 The Scheduling Conference was held on November 14, 2019. 25 II. Appearances of Counsel 26 Stewart Katz telephonically appeared on behalf of Plaintiff. 27 Steven Crass telephonically appeared on behalf of Defendants. 28 1 III. Consent to Magistrate Judge 2 Pursuant to 28 U.S.C. § 636(c), to the parties who have not consented to conduct all further 3 proceedings in this case, including trial, before United States Magistrate Judge Stanley A. Boone, 4 you should be informed that because of the pressing workload of United States district judges and 5 the priority of criminal cases under the United States Constitution, you are encouraged to consent 6 to magistrate judge jurisdiction in an effort to have your case adjudicated in a timely and cost 7 effective manner. Presently, when a civil trial is set before Judge O’Neill, any criminal trial set 8 which conflicts with the civil trial will take priority, even if the civil trial was set first. Continuances 9 of civil trials under these circumstances may no longer be entertained, absent a specific and stated 10 finding of good cause, but the civil trial may instead trail from day to day or week to week until the 11 completion of either the criminal case or the older civil case. The parties are advised that they are 12 free to withhold consent or decline magistrate jurisdiction without adverse substantive 13 consequences. 14 IV. Initial Disclosure under Fed. R. Civ. P. 26(a)(1) 15 The Parties are ordered to exchange the initial disclosures required by Fed. R. Civ. P. 16 26(a)(1) on or before December 9, 2019. 17 V. Amendments to Pleading 18 The parties do not anticipate any amendments to the pleadings at this time. The parties are 19 advised that filing motions and/or stipulations requesting leave to amend the pleadings does not 20 reflect on the propriety of the amendment or imply good cause to modify the existing schedule, if 21 necessary. All proposed amendments must (A) be supported by good cause pursuant to Fed. R. 22 Civ. P. 16(b) if the amendment requires any modification to the existing schedule, see Johnson v. 23 Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), and (B) establish, under Fed. R. 24 Civ. P. 15(a), that such an amendment is not (1) prejudicial to the opposing party, (2) the product 25 of undue delay, (3) proposed in bad faith, or (4) futile, see Foman v. Davis, 371 U.S. 178, 182 26 (1962). 27 28 1 VI. Discovery Plan and Cut-Off Dates 2 The parties are ordered to complete all non-expert discovery on or before December 9, 3 2020 and all expert discovery on or before January 25, 2021. 4 The parties are directed to disclose all expert witnesses, in writing, on or before November 5 19, 2020 and to disclose all supplemental experts on or before December 18, 2020. The written 6 designation of retained and non-retained experts shall be made pursuant to Fed. R. Civ. P. 7 26(a)(2), (A), (B) and (C) and shall include all information required thereunder. Failure to 8 designate experts in compliance with this order may result in the Court excluding the testimony or 9 other evidence offered through the experts that are not properly disclosed in compliance with this 10 order. 11 The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to 12 experts and their opinions. Experts must be fully prepared to be examined on all subjects and 13 opinions included in the designation. Failure to comply will result in the imposition of sanctions, 14 which may include striking the expert designation and the exclusion of their testimony. 15 The provisions of Fed. R. Civ. P. 26(e) regarding a party's duty to timely supplement 16 disclosures and responses to discovery requests will be strictly enforced. 17 The parties are cautioned that the discovery/expert cut-off deadlines are the dates by which 18 all discovery must be completed. Absent good cause, discovery motions will not be heard after the 19 discovery deadlines. Moreover, absent good cause, the Court will only grant relief on a discovery 20 motion if the relief requested requires the parties to act before the expiration of the relevant 21 discovery deadline. In other words, discovery requests and deposition notices must be served 22 sufficiently in advance of the discovery deadlines to permit time for a response, time to meet and 23 confer, time to prepare, file and hear a motion to compel and time to obtain relief on a motion to 24 compel. Counsel are expected to take these contingencies into account when proposing discovery 25 deadlines. Compliance with these discovery cutoffs requires motions to compel be filed and heard 26 sufficiently in advance of the discovery cutoff so that the Court may grant effective relief within 27 the allotted discovery time. A party's failure to have a discovery dispute heard sufficiently in 28 advance of the discovery cutoff may result in denial of the motion as untimely. 1 VII. Pre-Trial Motion Schedule 2 Unless prior leave of Court is obtained at least seven (7) days before the filing date, all 3 moving and opposition briefs or legal memorandum in civil cases shall not exceed twenty-five (25) 4 pages. Reply briefs filed by moving parties shall not exceed ten (10) pages. Before scheduling any 5 motion, the parties must comply with all requirements set forth in Local Rule 230 and 251. 6 A. Non-Dispositive Pre-Trial Motions 7 As noted, all non-expert discovery, including motions to compel, shall be completed no 8 later than December 9, 2020. All expert discovery, including motions to compel, shall be 9 completed no later than January 25, 2021. Compliance with these discovery cutoffs requires 10 motions to compel be filed and heard sufficiently in advance of the discovery cutoff so that the 11 Court may grant effective relief within the allotted discovery time. A party’s failure to have a 12 discovery dispute heard sufficiently in advance of the discovery cutoff may result in denial of the 13 motion as untimely. Non-dispositive motions are heard on Wednesdays at 10:00 a.m., before 14 United States Magistrate Judge Stanley A. Boone in Courtroom 9. 15 In scheduling any non-dispositive motion, the Magistrate Judge may grant Applications for 16 an Order Shortening Time pursuant to Local Rule 144(e). However, if counsel does not obtain an 17 Order Shortening Time, the Notice of Motion must comply with Local Rule 251. 18 Counsel may appear and argue non-dispositive motions by telephone, providing a written 19 request to so appear is made to the Magistrate Judge's Courtroom Clerk no later than three (3) court 20 days before the noticed hearing date. In the event that more than one attorney requests to appear 21 by telephone, then it shall be the obligation of the moving party(ies) to arrange and originate a 22 conference call to the court. 23 Discovery Disputes: If a motion is brought under Fed. R. Civ. P. 37, the parties must 24 prepare and file a Joint Statement re Discovery Disagreement (“Joint Statement”) as required by 25 Local Rule 251. The Joint Statement must be filed seven (7) calendar days before the scheduled 26 hearing date. Courtesy copies of all motion-related documents, declarations, and exhibits must be 27 delivered to the Clerk’s Office by 10:00 a.m. on the fourth court day prior to the scheduled hearing 28 date. Motions will be removed from the court’s hearing calendar if the Joint Statement is not timely 1 filed or if courtesy copies are not timely delivered. In order to satisfy the meet and confer 2 requirement set forth in Local Rule 251(b), the parties must confer and talk to each other in person, 3 over the telephone or via video conferencing before the hearing about the discovery dispute. The 4 Court may issue sanctions against the moving party or the opposing party if either party fails to 5 meet and confer in good faith. 6 B. Dispositive Pre-Trial Motions 7 All dispositive pre-trial motions shall be filed no later than April 16, 2021 and heard 8 pursuant to the Local Rules in Courtroom 4 before a United States District Judge. In scheduling 9 such motions, counsel shall comply with Fed. R. Civ. P 56 and Local Rules 230 and 260. 10 Motions for Summary Judgment or Summary Adjudication: Prior to filing a motion for 11 summary judgment or motion for summary adjudication, the parties are ORDERED to meet, in 12 person or by telephone, and confer to discuss the issues to be raised in the motion. 13 The purpose of the meeting shall be to: 1) avoid filing motions for summary judgment where 14 a question of fact exists; 2) determine whether the respondent agrees that the motion has merit in 15 whole or in part; 3) discuss whether issues can be resolved without the necessity of briefing; 4) 16 narrow the issues for review by the court; 5) explore the possibility of settlement before the parties 17 incur the expense of briefing a summary judgment motion; and 6) to arrive at a Joint Statement of 18 Undisputed Facts. 19 The moving party shall initiate the meeting and provide a draft of the Joint Statement of 20 Undisputed Facts. In addition to the requirements of Local Rule 260, the moving party shall 21 file a Joint Statement of Undisputed Facts. 22 In the Notice of Motion, the moving party shall certify that the parties have met and 23 conferred as ordered above or set forth a statement of good cause for the failure to meet and confer. 24 VIII. Pre-Trial Conference Date 25 The Pre-Trial conference is set for July 28, 2021 at 8:30 a.m. in Courtroom 4 before a 26 United States District Judge. 27 The parties are ordered to file a Joint Pretrial Statement pursuant to Local Rule 28 281(a)(2). The parties are further directed to submit a digital copy of their Pretrial Statement in 1 Word format, directly to District Judge’s chambers by email. 2 Counsels’ attention is directed to Rules 281 and 282 of the Local Rules for the Eastern 3 District of California, as to the obligations of counsel in preparing for the pre-trial conference. The 4 Court will insist upon strict compliance with those rules. In addition to the matters set forth in the 5 Local Rules, the Joint Pretrial Statement shall include a Joint Statement of the Case to be used by 6 the Court to explain the nature of the case to the jury during voir dire. 7 IX. Trial Date 8 Trial is set for September 14, 2021 at 8:30 a.m. in Courtroom 4 before a United States 9 District Judge. 10 A. This is a jury trial. 11 B. Counsels’ Estimate of Trial Time: 5-7 Days. 12 C. Counsels’ attention is directed to Local Rule 285 for the Eastern District of 13 California. 14 X. Settlement Conference 15 Should the parties desire a settlement conference, they will jointly request one of the court, 16 and one will be arranged. In making such request, the parties are directed to notify the court as to 17 whether or not they desire the undersigned to conduct the settlement conference or to arrange for 18 one before another judicial officer. 19 XI. Request for Bifurcation, Appointment of Special Master, or other Techniques to Shorten Trial 20 21 Not applicable at this time. 22 XII. Related Matters Pending 23 There are no pending related matters. 24 XIII. Compliance with Federal Procedure 25 All counsel are expected to familiarize themselves with the Federal Rules of Civil Procedure 26 and the Local Rules of the Eastern District of California, and to keep abreast of any amendments 27 thereto. The Court must insist upon compliance with these Rules if it is to efficiently handle its 28 increasing case load and sanctions will be imposed for failure to follow the Rules as provided in 1 | both the Federal Rules of Civil Procedure and the Local Rules for the Eastern District of California. 2 Additional requirements and more detailed procedures for courtroom practice before United 3 | States Magistrate Judge Stanley A. Boone can be found at the United States District Court for the 4 | Eastern District of California’s website (www.caed.uscourts.gov) under Judges; United States 5 | Magistrate Judge Stanley A. Boone (SAB). In the area entitled “Case Management Procedures,” 6 | there is a link to “Standard Information.” All parties and counsel shall comply with the guidelines 7 | set forth therein. 8 XIV. Effect of this Order 9 The foregoing order represents the best estimate of the court and counsel as to the agenda 10 | most suitable to dispose of this case. The trial date reserved is specifically reserved for this case. 11 | If the parties determine at any time that the schedule outlined in this order cannot be met, counsel 12 | are ordered to notify the court immediately of that fact so that adjustments may be made, either by 13 | stipulation or by subsequent status conference. 14 Stipulations extending the deadlines contained herein will not be considered unless 15 | they are accompanied by affidavits or declarations, and where appropriate attached exhibits, 16 | which establish good cause for granting the relief requested. The parties are advised that due 17 | to the impacted nature of civil cases on the district judges in the Eastern District of California, 18 | Fresno Division, that stipulations to continue set dates are disfavored and will not be granted 19 | absent good cause. 20 Lastly, should counsel or a party appearing pro se fail to comply with the directions 21 | as set forth above, an ex parte hearing may be held and contempt sanctions, including 22 | monetary sanctions, dismissal, default, or other appropriate judgment, may be imposed 23 | and/or ordered. 24 25 IT IS SO ORDERED. OF. nf ee 26 | Dated: _November 14, 2019 UNITED STATES MAGISTRATE JUDGE 27 28

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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JEFFREY BROWN, Case No. 1:18-cv-01541-NONE-SAB

12 Plaintiff, ORDER ADVISING DEFENDANTS OF REQUIREMENT TO FILE PROOF OF 13 v. SERVICE OF SUGGESTION OF DEATH OF PLAINTIFF IN ORDER TO TRIGGER 14 COUNTY OF MARIPOSA, et al., NINETY-DAY PERIOD

15 Defendants. (ECF No. 49)

16

17 Jeffrey Brown (“Plaintiff”) filed this action on November 7, 2018. (ECF No. 1.) On 18 January 21, 2021, Defendants filed a statement suggesting the death of Plaintiff. (ECF No. 49.) 19 Rule 25(a)(1) provides for the dismissal of a party or an action if a motion for substitution 20 is not made within ninety days after service of a statement noting the party’s death. Fed. R. Civ. 21 P. 25(a)(1). In order for the ninety-day period for substitution to be triggered, a party must 22 formally suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve 23 other parties and nonparty successors or representatives of the deceased with a suggestion of 24 death in the same manner as required for service of the motion to substitute, Fed. R. Civ. P. 25 25(a)(3). Thus, a party may be served with the suggestion of death by service on his or her 26 attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party 27 must be served the suggestion of death in the manner provided by Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow v. Ground, 39 F.3d 231, 232-34 (9th Cir. 1994). 1 | Rule 25 requires dismissal, absent a motion for substitution within the ninety-day period, only if 2 | the statement of death was properly served. Gilmore v. Lockard, 936 F.3d 857, 866-67 (9th Cir. 3 | 2019) (stating Barlow is “understood as interpreting the 90-day rule judiciously: where a party 4 | files a suggestion of death, it must do so in a manner that puts all interested parties and 5 | nonparties on notice of their claims in order to trigger the 90-day window.”). 6 While Plaintiffs attorney has been served the suggestion of death, Defendants have not 7 | filed a proof of service for the non-party successors or representatives of Plaintiff. Accordingly, g | Defendants are HEREBY NOTIFIED they must file proof that the non-party successors or g | representatives of Plaintiff have been served with the suggestion of death in order to trigger the 10 | time period described in Federal Rule of Civil Procedure 25(a). 11 12 | IT IS SO ORDERED. A fe 13 | Dated: _ January 22, 2021 OF

14 UNITED STATES MAGISTRATE JUDGE

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY BROWN, Case No. 1:18-cv-01541-NONE-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 13 v. ACTION PURSUANT TO FED. R. CIV. P. 25(a)(1) 14 COUNTY OF MARIPOSA, et al., (ECF No. 49) 15 Defendants. ORDER REQUIRING DEFENDANTS TO 16 FILE PROOF OF SERVICE ON SUCCESSOR IN INTEREST WITHIN FIVE 17 DAYS 18 OBJECTIONS DUE WITHIN NINETY DAYS 19 20 On November 7, 2018, Jeffrey Brown (“Plaintiff”) filed this civil rights action pursuant 21 to 42 U.S.C. § 1983 against the County of Mariposa, Doug Binnewies, Cody Hart, Sean Land 22 and the John C. Fremont Healthcare District. (ECF No. 1.) Following the filing of several 23 motions to dismiss and amended complaints, this action is now proceeding on Plaintiff’s second 24 amended complaint against the County of Mariposa, Doug Binnewies, Cody Hard and Sean 25 Land for deliberate indifference under section 1983, municipal liability under Monell v. 26 Department of Social Services of the City of New York, 436 U.S. 658 (1978), and a state law 27 claim under the Bane Act, Cal. Civ. Code § 52.1, et seq. (ECF Nos. 31, 39.) On January 21, 2021, defense counsel filed a notice of suggestion of Plaintiff’s death. 1 (ECF No. 49.) An order was filed on January 22, 2021, advising Defendants of the requirement 2 that the notice be served on the successors in interest to trigger the ninety day period under Rule 3 25 of the Federal Rules of Civil Procedure. (ECF No. 50.) On February 25, 2021, a proof of 4 service was filed showing that Lois Hall, as successor-in-interest to Jeffrey Brown, was 5 personally served with the suggestion of death on February 23, 2021. (ECF No. 51.) 6 Rule 25(a)(1) provides that “[i]f a party dies and the claim is not extinguished, the court 7 may order substitution of the proper party. Federal law does not cover “the survival of civil 8 rights actions under § 1983 upon the death of either the plaintiff or defendant.” Robertson v. 9 Wegmann, 436 U.S. 584, 589 (1978) (quoting Moor v. County of Alameda, 411 U.S. 693, 703, 10 702 n.2 (1973)); see also 42 U.S.C. § 1988(a). In determining if a cause of action survives the 11 death of a party, the court looks to state law. See Chaudhry v. City of Los Angeles, 751 F.3d 12 1096, 1103 (9th Cir. 2014). Under California law, a plaintiff’s claims for damages under section 13 1983 survive his death. Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir. 1987), 14 overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) 15 (applying California survivorship law to hold that a section 1983 claim could be asserted by the 16 decedent’s estate), see Cal. Civ. Proc. Code §§ 377.20 (“a cause of action for or against a person 17 is not lost by reason of the person’s death, but survives subject to the applicable limitations 18 period”; Cal. Civ. Proc. Code § 377.21 (“A pending action or proceeding does not abate by the 19 death of a party if the cause of action survives.”); see also In re Estate of Ferdinand Marcos, 20 Human Rights Litig., 25 F.3d 1467, 1476 (9th Cir. 1994) (stating that a section 1983 action 21 “survives the death of a party”). 22 A motion for substitution may be made by any party or by the decedent’s successor or 23 representative.” Fed. R. Civ. P. 25(a)(1). Rule 25(a) therefore “requires two affirmative steps in 24 order to trigger the running of the 90 day period.’ Gilmore v. Lockard, 936 F.3d 857, 865 (9th 25 Cir. 2019) (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994); In re MGM Mirage Sec. 26 Litig., 282 F.R.D. 600, 602 (D. Nev. 2012). The party must first formally suggest the death of 27 the party upon the record. Gilmore, 936 F.3d at 865 (quoting Barlow, 39 F.3d at 233. Secondly, 1 deceased with a suggestion of death in the same manner as required for service of the motion to 2 substitute.” Id. Thus, a party may be served with the suggestion of death by service on his or 3 her attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased 4 party must be served the suggestion of death in the manner provided by Rule 4 for the service of 5 a summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-34. Here, Plaintiff’s claims did not 6 abate upon his death and Rule 25 is applicable. 7 If a motion for substitution “is not made within 90 days after service of a statement 8 noting the death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 9 25(a)(1). However, Rule 25 requires dismissal, absent a motion for substitution within the 10 ninety-day period, only if the statement of death was properly served. Gilmore, 936 F.3d at 866– 11 67 (stating Barlow is “understood as interpreting the 90-day rule judiciously: where a party files 12 a suggestion of death, it must do so in a manner that puts all interested parties and nonparties on 13 notice of their claims in order to trigger the 90-day window.”). 14 Here, Defendant properly served the successor in interest by personally delivering a copy 15 of the notice of suggestion of death on February 23, 2021. See Fed. R. Civ. P. 4(e)(2)(a) 16 (providing for service “by delivering a copy of the summons and of the complaint to the 17 individual personally”). The notice informed any potential successor in interest of the suggestion 18 of death made under Rule 25(a)(1).1 The ninety day period has now expired, and no motion for 19 substitution has been filed. 20 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed pursuant 21 to Rule 25(a)(1) of the Federal Rules of Civil Procedure. 22 Defendants are HEREBY ORDERED to serve a copy of this findings and 23 recommendations on the successor in interest and file proof of service within five (5) days of the 24 date of entry of this order.

25 1 The notice of suggestion of death did not inform the successor in interest of the substance of the rule or that a motion for substitution must be made within ninety days. The ninety day deadline to file a motion for substitution 26 may be extended by Rule 6(b), including after the expiration of a deadline where the party failed to act due to “excusable neglect.” Zanowick v. Baxter Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017) (quoting Fed. R. 27 Civ. P. 6(b)); see also In re Cardoza, 111 B.R. 906, 910 (Bankr. S.D. Cal. 1990). Accordingly, the successor in interest may seek to substitute for the deceased plaintiff by arguing excusable neglect in failing to comply with the 1 This findings and recommendations is submitted to the district judge assigned to this 2 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 3 | days of service of this recommendation, any party may file written objections to this findings 4 | and recommendations with the court and serve a copy on all parties. Such a document should be 5 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district 6 | judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 7 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 8 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 9 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. FA. ee 12 | Dated: _ May 28, 2021

UNITED STATES MAGISTRATE JUDGE

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