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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
The instant lawsuit is brought for the primary purposes of attempting to cause reforms in the delivery of health care, particularly mental health care in the California prisons and jails as well as the statutory scheme which regulates the delivery of health care, including most particularly, mental health care.
As detailed and documented in the complaint, it is a matter of legal record that the delivery of health care, especially mental health care to the mentally ill and substance addicted in the State of California’s prison system and in the Los Angeles County Jail system is deficient to the point of being non-existent. Previous action by the Federal Department of Justice (DOJ) relevant to the Los Angeles County Jail system was taken but appears ineffective. [Complaint ¶¶17-121]. A federal judge has put the health care delivery system of the State of California in federal receivership [Complaint ¶170)
Plaintiff WALKER and Plaintiff JONES allege they were incarcerated in the L.A. County Jail and during the time that they were incarcerated allege that they did not have access to constitutionally adequate mental health care or constitutionally adequate treatment for drug addiction, both of which are recognized handicaps under ADA and the 1973 Rehabilitation Act. Both Plaintiffs allege that they were forced into “programs” upon release from jail which continued to fail to provide and/or deny access to constitutionally adequate mental health care or constitutionally adequate treatment for drug addiction.
Defendant BACA is named as a Defendant in his personal capacity. Since the COUNTY is named as a Defendant as well, extensive case law holds that naming Defendant BACA in his official capacity is redundant.
Similarly, extensive case law allows naming a supervisor in his personal capacity and holds that personal participation is not the only predicate for supervisor liability. The requisite causal connection can be established by setting in motion ( or failing to set in motion) a series of acts by others with the actor knows or reasonably should know would cause others to inflict the constitutional injury Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978)
It is uncontested by Defendants that the Plaintiffs brought their action AFTER they were released from incarceration in the County Jail. Hence the requirements of §1997e(e) are not applicable. The vast preponderance of case law and ALL circuit decisions known to Plaintiff counsel make clear that they are NOT subject to the PLRA exhaustion requirements. Moreover the plain language of the PLRA itself makes pellucidly clear that ex-prisoners no longer confined are NOT subjected to the exhaustion requirements. ( 42 U.S.C. 1997e(h))
Plaintiffs have stated a prima facie claim for violations of Title II of the ADA and the 1973 Rehabilitation Act in their complaint.[ Complaint ¶¶277-324] No allegations of “disparate” treatment are required to state such a claim.
II. THE PLAIN LANGUAGE OF THE PLRA, AND THE VAST PREPONDERANCE OF CASE LAW INCLUDING ALL KNOWN FEDERAL CIRCUIT COURT CASE LAW MAKE CLEAR THAT THE PLRA EXHAUSTION REQUIREMENT DOES NOT APPLY TO PLAINTIFFS WHO AT THE TIME THEY BROUGHT THEIR ACTION WERE NOT PRISONERS.
A. The Plain Language of the PLRA Does Not Require That a Plaintiff Who Is No Longer Incarcerated at the Time That He Brings His Complaint Have Exhausted His Administrative Remedies.
The PLRA states in plain language that its object is a “prisoner confined in a jail, prison, or other correctional facility” )emphasis added). Then there is an explicit definition in § 1997 e(h):
“As used in this section, the term “prisoner” means any person
incarcerated or detained in any facility who is accused of, convicted
of, or adjudicated delinquent for, violations of criminal law..”
According to the 7th Circuit Court of Appeals, the statutory language does not leave wiggle room; a parolee, probationer, or person freed from jail or prison is not a “person incarcerated or detained in any facility who is... adjudicated delinquent for, violations of... the terms and conditions of parole” ( Kerr v. Puckett 138 F. 3d 321, 323 ( 7th Cir. 1998).
The Kerr Court reached this conclusion and held that the PLRA did not apply to suit filed by an inmate after he was released on parole.
The Kerr Court reversed a district court which applied the exhaustion requirement contained in § 1997e(e) to actions brought by former prisoners, because “common sense and the overall purposes of the PLRA favor application of 1997 e(e) to actions brought by former prisoners” 967 F. Supp. @ 362 quoting from Zehner v. Trigg, 952 F. Supp. 1318, 1325 ( S.D. Ind) affirmed on other grounds, 133 F. 3d 459 ( 7th Cir. 1997)
Defendants have requested this court to take judicial notice of unpublished case CV 05-5611 GAF (JWJx). This case, relying upon two other district court cases makes essentially the same argument and error as the district court overturned by Kerr: To allow a plaintiff to circumvent the exhaustion requirement by delaying the filing of a lawsuit until after release would undermine the Congressional objectives and purpose of the PLRA.
Defendants position, and reliance upon their unpublished case is intellectually destitute for several reasons.
First, in Prescotte v. County of L.A. et al. CV 04-4040 GAF (JWJx) ( an unpublished case for which Plaintiffs have filed a concurrent request for judicial notice by this court) approximately six months previous to Barnard v. Gibbons CV 05-5611 GAF ( JWJx) the same district court reached the diametrically opposite conclusion that the PLRA did not apply to ex prisoners. In doing so the district court relied inter alia upon Kerr.
Second: In Page v. Torrey, 201 F.3d 1136,1139-40 (9th Cir. 2000), the Ninth Circuit expressly held that the PLRA only applies to “prisoners” per 42 U.S.C. § 1997e and 28 U.S.C. § 1915. The Court went on to define “prisoners” as being “only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced for criminal offenses[.]” Id.
In Prescotte v. County of L.A. et al. CV 04-4040 GAF (JWJx) the same judge and district court upon whom Defendants now attempt to rely to bolster their position, stated that: “[T]he Ninth Circuit held that the PLRA’s exhaustion requirement did not apply to bar an action brought by a plaintiff after he completed his prison term-even though he remained a civil detainee under California’s Sexually Violent Predators Act.” (Page @ 1139)
B. All Known Federal Appellate Case Law and the Preponderance of Other Federal Case Law Hold That Plaintiffs Who Are No Longer Incarcerated at the Time They Bring Their Action Are Not Subject to the PLRA’s Exhaustion of Administrative Remedies Requirement
In their instant 12(b)(6) motion Defendants now attempt to argue that the Ninth Circuit’s decision in Page ought not be followed because it involved a civil, not criminal, detention and predates two Supreme Court decisions from 2001 and 2002,1 respectively, that construed the PLRA (albeit on unrelated points).
Admittedly at least one district court within the 9th Circuit has so held. See Morgan v. Maricopa County, 259 F. Supp.2d 985 (D. Ariz. 2003). However, contrary to what the defendants would have this court believe, that position has been widely rejected throughout the country both explicitly and implicitly.
In Huftile v. Miccio-Fonseca, 410 F.3d 1136 (9th Cir. 2005), the 9th Circuit
expressly reiterated its holding in Page v. Torrey that, under the PLRA, “the ‘natural reading’ of ‘prisoner’ required that ‘the individual in question must be currently detained . . . for a criminal offense.’” Id @ 1139.
In Zaragoza v. Maricopa County, -- F. Supp.2d --, 2006 WL 581219 (D. Ariz
2006), Judge Murguia considered and then explicitly rejected the exact same arguments advanced by defendants here. In doing so, she explained why she found the district court’s rationale in Morgan v. Maricopa County to be unpersuasive. See id. at *2 (noting, inter alia, that “[t]he line of authority within this Circuit and others demonstrates that the PLRA’s exhaustion requirement applies only as it reads within the language of the statute, to those claims asserted by prisoners while they are incarcerated”).
In Thomas v. Baca, 2005 WL 697986 (C.D. Cal. 2005), Judge Pregerson did exactly the same thing, i.e., he considered, and then explicitly rejected, the exact same arguments advanced by defendants here. In doing so, he also explained why he found the district court’s rationale in Morgan v. Maricopa County to be unpersuasive. See
Id **2- 3 (noting, inter alia, that “neither [of the two Supreme Court decisions] involve the applicability of the exhaustion requirement to former prisoners”).
Every single appellate court decision handed down throughout the country accords with the Ninth Circuit’s decision in Page v. Torrey. See, e.g., Michau v. Charleston County, 434 F.3d 725, 727-28 (4th Cir. 2006) (unless one is in criminal detention, the PLRA’s exhaustion requirement does not apply) (citing Page v. Torrey); Perkins v. Hedricks, 340 F.3d 582, 583 (8th Cir. 2003) (per curiam) (same); Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (same); Ahmed v. Dragovich, 297 F.3d 201, 209 (3rd Cir. 2002) (PLRA inapplicable to former prisoners); Harris v. Garner, 216 F.3d 970, 979-80 (11th Cir. 2000) (en banc) (same); Greig v. Goord, 169 F.3d 165, 167 (2nd Cir. 1999) (same); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (PLRA inapplicable to former inmate who filed suit after he was released on parole). Accord, Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3rd Cir. 2001) (en banc) (PLRA applicable “only if the plaintiff is a prisoner at the time of filing”). Cf. Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000) (PLRA fee limit inapplicable to former prisoners).
Similarly, district court decisions, both published and unpublished, within this Circuit and in other Circuits, appear to be in near unanimity as well. See, e.g, Worthy v. Department of Corrections, -- F. Supp.2d --, 2006 WL 776791, *4 (D. N.J. 2006) (PLRA’s exhaustion requirement applies only to prisoners in custody at time they filed complaint); Calia v. Werholtz, 408 F. Supp.2d 1148, 1151 (D. Kan. 2005) (same); Sutton v. Hopkins County, -- F. Supp.2d --, 2005 WL 3478152, *2 (W.D. Ky. 2005); Kritenbrink v. Crawford, 313 F. Supp.2d 1043, 1047-48 (D. Nev. 2004) (same); Black v. Franklin County, 2005 WL 1993445, *4 (E.D. Ky. 2005) (same); Gibson v. Kendrick, 2005 WL 1309161, *1 (E.D. La. 2005) (same).
Again it should be noted by this court that in Prescotte, the very same district court upon which the Defendants now wish to rely, noted that “[T]he district courts in Morgan and Mason appear to have been unaware of the great weight of circuit authority that is contrary to their interpretation of § 1997(e).”
Defendants adduce no rationale as to why, only 6 months later, the same district court in deciding Barnard ( an unpublished decision which the Defendants urge this court to notice and rely upon) ignores the great weight of circuit authority and relies heavily upon–Mason?!-- in order to reach a diametrically opposite position favored by “the great weight of circuit authority”.
Simply put, the Ninth Circuit has twice said that a Plaintiff not in criminal detention is not bound by the PLRA’s administrative exhaustion requirement; every single Circuit in the country to have addressed the question has expressly stated that exhaustion does not apply to former prisoners; a vast majority of the district court decisions in the country have reached the same conclusion; and the very arguments advanced by the defendants here have been expressly rejected – along with their reliance on the Morgan v. Maricopa County decision – by at least two other district courts here in the Ninth Circuit, as well as the district court which upon which they now wish to rely.
Accordingly, the defendants’ argument on this point ought to be rejected as being so merit less as to verge upon frivolous.
It is respectfully urged that this court dismiss no part of the complaint due to a failure of the Plaintiffs to exhaust their administrative remedies as provided by the PLRA.
III. THE FIRST AND SECOND CAUSES OF ACTION UNDER TITLE II OF THE ADA AND 1973 REHABILITATION ACT RESPECTIVELY ARE ADEQUATELY PLED TO STATE A PRIMA FACIE CASE, NO ALLEGATIONS OF DISPARATE IMPACT ARE REQUIRED.
Defendants correctly note that Title II of the ADA applies to prison facilities.
Defendants correctly note that the ADA was preceded by the 1973 Rehabilitation Act, and that both Acts are essentially the same, and to be interpreted the same, with the primary distinction being that the Rehabilitation Act only applies to entities and facilities which receive federal funding. Plaintiffs have claimed [Complaint ¶318], and Defendants do not deny, that Defendant County and its Sheriff’s Department which operates and administers the Defendant County’s jail facilities receive federal funding. Defendants then cite several out of circuit district court cases in New York in which Plaintiffs were dismissed for various reasons. In Atkins v. County of Orange, 251 F.2d 1225, 1231,-32 ( D. N.Y. 2003) there were no allegations that the Plaintiffs were denied the benefits of a service, program or activity in the jail that were otherwise available to other inmates. In Devivo v. Butler, 1998 WL 7887 @ 4
( S.D. N.Y. 1999) the a blind inmate failed to allege that he was denied service because he was blind.
Neither case is on point or demonstrates a deficiency in the Plaintiffs’ First and Second Causes of Action, given the facts outlined in the Plaintiffs’ complaint or under
9TH Circuit case law.
Plaintiffs’ have pled their First and Second Causes of action in ¶¶ 277-324 of the complaint, as well as all paragraphs previous to ¶277 incorporated by reference into the First and Second Causes of Action.
Plaintiffs’ complaint basically makes two allegations concerning Defendants violations of ADA and 1973 Rehabilitation Act. Neither is a disparate treatment allegation. This is an attempt by the Defendants to restate the issues raised by the Plaintiffs complaint in order to allege a pleading deficiency.
Plaintiffs allege, not disparate treatment, but rather:
1. That the Defendants failed to make a reasonable accommodation for Plaintiffs’ disabilities, specifically mental illness and drug addiction, and;
2. That the Defendants failed to provide reasonable access to a constitutionally adequate program of mental health care delivery to them and thus violated the ADA and Rehabilitation Acts.
As to the first allegation of Plaintiffs in order to state a claim, Plaintiffs must allege four elements: (1) That he/she “is an individual with a disability” [See Complaint ¶296]; (2) That he “|is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs or activities” [ See Complaint ¶303]; (3) he “was either excluded from participating in or denied the benefits of the public entity’s services, programs or activities, or was otherwise discriminated against by the public entity” [See Complaint ¶304] and (4) “such exclusion, denial of benefits, or discrimination was by reason of his disability” [See Complaint ¶300, 305]Thompson v. Davis, 295 F. 3d 89, 895 (9th Cir. 2002) (per curiam), cert. Denied, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003) , see also McGary v. City of Portland, 386 F. 3d 1259, 1265 (9th Cir. 2004
Plaintiff believes that he has adequately pled each of these factors. Should the court disagree, Plaintiff respectfully requests the court’s permission to file an amended complaint as to the 1st and 2nd Causes of Action.
Plaintiffs brought their action under the federal regulations implementing Title II of the ADA which require public entities to “make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity. 28 C.F.R. §35.130(b)(7) ; see also Townsend v. Qasim, 328 F.3d 511, 517 (9th Cir. 2003) A plaintiff need not allege either disparate treatment or disparate impact in order to state a reasonable accommodation claim. See e.g. Henrietta D. V. Bloomberg, 331 F.3d 261, 276-77 ( 2d Cir 2003) ( “[A] claim of discrimination based on a failure reasonably to accommodate is distinct from a claim of discrimination based on disparate impact.”) , cert denied, –U.S.—, 124 S.Ct 1658, 158 L.Ed.2d 356 (2004)
The ADA ( and as acknowledged by the Defendants the 1973 Rehabilitation Act) not only protects against disparate treatment, it also creates in some circumstances an affirmative duty to provide special, preferred treatment, or ‘reasonable accommodation.’”) Dunlap v. Ass’n of Bay Area Govt’s, 996 F.Supp. 962, 965 ( N.D. Cal. 1998)
One of the reasonable accommodations that would obviously be required in the case of mentally ill persons is an adequate professional intake assessment of the type and severity of the mental illness by trained professionals. It is not reasonable to suppose that mentally ill persons, especially those with certain types of mental illness or severe mental illness have the capability to report what is wrong with them during a brief or cursory intake assessment, or where no assessment is made at all.
Another reasonable accommodation would perhaps be to furnish some form of medication for the mental illness after assessment, as well as some form of medication to assist with withdrawal the substances with which the mentally ill person has been self-medicating.
Although Title II of the ADA uses the term “reasonable modification” rather than “reasonable accommodation” these terms create identical standards. See e.g. Wong v. Regents of Univ of Cal., 192 F. 3d 807, 816 n 26 (9th Cir. 1999)
The 9th Circuit has a practice of using these terms interchangeably. McGary v. City of Portland, 386 F. 3d 1259 1266 F”N3 ( 9th Cir. 2004)
To recover monetary damages under title II of the ADA or RA, Plaintiffs must establish intentional discrimination on the part of the state officials. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir 1998)
The appropriate test for intentional discrimination under the ADA has been established as “deliberate indifference.” Duvall v. County of Kitsap, 260 F. 3d 1124, 1138, (9th Cir. 2001). A defendant acts with deliberate indifference if (1) the defendant has knowledge from which an inference could be drawn that a harm to a federally protected right is substantially likely, and (2) the defendant actually draws that inference and fails to act upon the likelihood. Id. At 1138-39; see also Toguchi v. Chung, 391 F. 3d 11051, 1057 (9th Cir. 2004)
In the case before this court, the Plaintiffs have alleged that the County Defendants had knowledge based upon investigations and an agreement with the U.S. Department of Justice in 1997 that a harm to a federally protected right was substantially likely, UNLESS they complied with their agreement. Plaintiffs have further alleged that the County Defendants deliberately failed to do so, and therefore failed to act upon the likelihood. [Complaint ¶¶117-121, ¶¶ 203-213]
In summary, Plaintiffs believe that the Defendants have either misapprehended the nature of the First and Second Causes of Action or are attempting to misstate the nature of the First and Second Causes of Action in order to attempt to establish a pleading defect. Plaintiffs believe that not only are the First and Second Causes of Action adequately pled under F.R.CivP. 8(a), but that considerable factual evidence has been presented and incorporated by reference into the First and Second Claims to establish that there is a likelihood that the necessary showing of deliberate indifference can be made.
With the nature of the ADA and RA claims now established and explained should the court believe that the claims are somehow inadequately pled, Plaintiffs believe that the pleadings can be amended to remedy any defect and respectfully request leave of the court to do so should such action be necessary in the court’s opinion.
IV. DISMISSAL OF CLAIMS AGAINST DEFENDANT SHERIFF LEE BACA.
A. Dismissal of Defendant Baca in his personal capacity as to the First and Second Causes of Action.
Plaintiffs named Baca, in his personal capacity, and DOES in their personal and official capacities as Defendants in the First and Second Causes of Action.
Plaintiffs, having named COUNTY as a Defendant, and having alleged that Defendant BACA was a decision maker for the COUNTY in certain relevant matters did not name him in his official capacity, case law having established that to do so would be redundant. A suit against a governmental officer in his official capacity is equivalent to a suit against the governmental entity itself. Larez v. City of Los Angeles, 946 F.2d 630, *646 9th Cir. 1991) citing McRorie, 795 F.2d at 783. Defendants, citing a variety of district court cases, mostly out of circuit contend that Baca cannot be named in his individual capacity. This contention is correct, but does not go quite far enough.
Defendants might better have relied upon 9th Circuit authority. The 9th Circuit has held that neither damages nor injunctive relief pursuant to the ADA or Rehabilitation Action may be sought against defendants in their individual capacities. Eason v. Clark County School Dist., 303 F. 3d 1137, 1145 (9th Cir. 2002)
Accordingly, Plaintiff respectfully requests leave of the court to amend the First and Second Causes of Action by dropping Defendant BACA in his personal capacity, and by dropping the Defendant DOES in their personal capacities, but leaving them in these two causes of action in their official capacities since there is no claim that these Defendants are necessarily County “officers” or that they act as decision makers.
B. Dismissal of Defendant Baca as to the Remainder of the Claims.
Defendants now attempt to have Defendant Baca removed as a Defendant from all remaining causes of action in which he is a defendant stating that “...plaintiffs must plead that he acted personally to cause the alleged constitutional or statutory deprivations...” and that the plaintiffs have a “strict pleading burden.”
Neither of Defendant’s propositions is correct as a matter of established law.
The liability of Defendant Baca ( a supervisor) and supervisory personnel in general does not depend upon their personal participation in the acts of their subordinates which immediately brought about the violation of the plaintiff’s constitutional rights. See e.g. Wilks v. Young, 897 F.2d 896, 898 (7th Cir. 1990); Avery v. County of Burke, 660 F. 2d 111, 114 (4th Cir. 1981)
The supervisor may not be on the scene and may not even know of the specific incident in question, yet still be liable to the Plaintiff. The issue, correctly phrased, is whether the supervisor has done something, or failed to do something which he ought to have done, which was a proximate cause of the violation of the plaintiff’s constitutional rights. ( emphasis added) See e.g. Mackinney v. Nielsen, 69 F. 3d 1002, 1008 (9th Cir. 1995) (supervisory liability requires either personal involvement or “a sufficient causal connection between the supervisor’s conduct and the constitutional violation.”)
Citing Johnson v. Duffy, 558 F. 2d 740, 743-744 (9th Cir 1978) Defendant BACA admits in the Memorandum that a constitutional or statutory deprivation, either by “personal participation in the deprivation, or by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. ( Defendants’ Memo in Support of 12(b)(6) 8: 8-12
Unfortunately, Defendant BACA then attempts to misstate the very law upon which he relies and assert that Plaintiffs need to make allegations that Baca had direct contact with the Plaintiffs or had actual, firsthand knowledge of Plaintiffs’ incarcerations. Obviously as a matter of the same case law, Duffy, upon which Defendants wish to rely, as well as MacKinney, no such requirements or “strict pleading” containing such elements is required.
In the instant case, the Plaintiffs have stated in some detail that there was a long standing history of extensive failure on the part of the Defendants, including BACA and his predecessors to operate the L.A. County Jail System in such a manner as to provide reasonable access to a constitutionally adequate level of mental health care [Complaint ¶ ¶ 117-121, ¶¶203-215]
Defendant BACA is on the public record as being aware that he manages the largest mental health facility in the County of Los Angeles. [Complaint ¶ 212]
Defendants BACA and COUNTY signed an agreement with the Department of Justice agreeing to provide constitutionally adequate health care and further agreeing to 53 separate measures related thereto. [Complaint ¶205-206]
Thereafter, Plaintiffs have alleged, Defendant BACA a decision maker for Defendant COUNTY in certain matters including operation of the L.A. County Jail system , failed to do something which he ought to have done, which was ensure that the actions agreed to were scrupulously and throughly carried out by his department and subordinates. [Complaint ¶¶207-218]. This failure on the part of BACA constitutes the necessary “affirmative link” between the absence of constitutionally adequate mental health ( i.e. medical) care, reasonable access to constitutionally adequate medical care for the Plaintiffs, and a violation of the Plaintiffs’ constitutional rights.
Put another way, it was “foreseeable” that absent effective action by the decision maker in the Sheriff’s department to ensure that the constitutionally inadequate delivery systems for mental health care that Defendants agreed with the DOJ existed and agreed to remedy, that the constitutionally inadequate mental health care conditions would continue to prevail, just as Plaintiffs’ assert occurred.
At present, taking Plaintiffs pleadings as true, it is possible to state that Defendant BACA failed to do something which he ought to have done. Under 9th Circuit case law, i.e Duffy and Mackinney that is sufficient.
Defendant, rather than relying on 9th Circuit law, travels outside the 9th Circuit
to the 7th Circuit and finds Luck v. Rovenstine, 168 F. 3d323 (7th Cir. 1989). Despite the fact that Luck is outside the 9th Circuit, and pre-dates MacKinney by approximately 6 years, Defendant urges the court to rely on Luck.
Defendant, in urging the court to rely on Luck inaccurately states that this case is “ an almost identical situation as the instant case.”
While it is true that both cases involved civil rights, the fact pattern was quite different. In Luck, the sheriff was sued because he had a policy, custom or practice of not really caring how long someone was incarcerated as long as the person incarcerated was wanted by another jurisdiction, i.e. another county, the prosecutor etc. The Luck court stated that it found “unconvincing the sheriff’s attempt to shrug off federal constitutional responsibilities toward detainees confined in the Kosciusko County Jail who have not yet had a probable cause hearing.” The court also stated that “In the final analysis, the sheriff is the custodian of the persons incarcerated in the jail, and as such it is he who is answerable for the legality of their custody.” The court held the sheriff as a defendant in his official capacity. Luck @ 327.
The court further stated that under 7th Circuit law the lack of “direct contact with the sheriff and a lack of “actual knowledge” of Luck’s wrongful detention defeated individual capacity claims.
There thus exists a marked difference in 9th Circuit and 7th Circuit law on the criteria for supervisors and decision makers. Even given that this is true, Luck is dissimilar to the instant case. In Luck, the court argued that the sheriff lacked “actual knowledge” of the constitutional wrong. In the instant case, Plaintiffs have alleged facts that make it clear that Defendant BACA would have “actual knowledge” that ANY mentally ill person coming into his jail would be subjected to a lack of constitutionally adequate health care. This would of course include the Plaintiffs.
It is not possible, without discovery, to state the specific theory of liability, i.e. did Defendant BACA order that corrective action not be taken, did he through inaction endorse a lack of corrective action, did he fail to properly supervise subordinates responsible for implementing the 53 changes agreed to with the DOJ, did he fail to ensure that subordinates were properly trained, did he fail to discipline subordinates for not timely carrying out the agreed upon 53 reforms etc.
It is not however difficult at all to deduce or infer from the alleged facts that Defendant BACA personally knew or should have known of the abysmal track record of his department in delivering mental health care, that specific promises to remedy dozens of failings had been made in 1997, and that the failings were not in fact being remedied and that he was not taking any action to ensure that the failings were remedied in a timely and effective manner. Nor is it difficult to infer that such a state of affairs denoted reckless or callous indifference on the part of Defendant Baca to the plight of the mentally ill in his jail ( the largest mental institution in the County, if not the State) or the certainty that the constitutional rights of the mentally ill incarcerated in his jail would be violated.
The impossibility of stating the specific theory of liability without discovery demonstrates the fallacy of the Defendants argument that any claim of liability against him must be “strictly pled”. Nor do the federal rules of civil procedure require such “strict pleading.”
Defendant BACA’s allegations that he is being sued “on the sole basis that he is a high-ranking officer within the los Angeles County Sheriff’s Department are not well taken.
Defendant BACA could have been, and still could be sued in his official capacity in lieu of the Defendant County for a custom, practice, or policy that is unconstitutional.
Defendant BACA is being sued in his personal capacity because he displayed “reckless or callous indifference” to the violation, or possibility of violation of the constitutional rights of mentally ill persons incarcerated in his prison. A showing of reckless or callous indifference is sufficient under 9th Circuit law to allow a individual capacity claim against Defendant BACA. Larez v. City of Los Angeles, 946 F. 2d 630 (9th Cir. 1991)
Similarly if it is shown that BACA “condoned, ratified and encouraged” the lack of constitutionally adequate health care he could be held liable. Larez, 946 F2d @ 646. The facts alleged by Plaintiffs in ¶¶ 120-121 and 203-215 of their complaint are sufficient to state a cause of action under the Larez standards for personal liability against BACA.
It has been noted by the federal appellate courts that there is a split of authority on the standards necessary to hold a supervisor liable in his individual capacity. ( See e.g. Baker v. Monroe Township, 50 F. 3d 1186, 1194 & n5 (3rd Cir. 1995) (applying 3rd Circuit standard which requires “actual knowledge and acquiescence” and noting that other circuits have broader standards for supervisory liability) Defendants’ counsel, an experienced attorney who has been employed for some years with a firm specializing in law enforcement defense either inadvertently or in an effort to benefit his client selected a standard used by the 7th and 3rd Circuit but not the 9th Circuit.
The court is therefore respectfully urged to apply controlling 9th Circuit law ( e.g. Duffy, MacKinney, and Larez), rather than non-controlling out of circuit law, and deny |Defendant BACA’s Motion to be dismissed as a Defendant in his individual or personal capacity in the remainder of the claims ( those other than the 1st and 2nd Claims).
V. CONCLUSION
Defendants’ assertion that the Plaintiffs’ case should be dismissed in its entirety for failure to exhaust their administrative remedies under the PLRA is erroneous and ill-taken. The 9th Circuit, and every other circuit court that has ruled on the matter have ruled contrary to this position. Defendants motion on this matter should be DENIED.
Defendants’ assertion that the 1st and 2nd Causes of Action should be dismissed due to a failure to plead facts concerning “disparate treatment” is without merit. Plaintiff’s ADA and RA claims in the 1st and 2nd Causes of Action were based on a lack of reasonable access, a lack of reasonable accommodation, and a lack of constitutionally adequate medical care including mental health care. No element of “disparate treatment” is required in these claims. Defendants’ Motion in these matters should be DENIED.
Defendants assertion that BACA is not a proper defendant in his individual capacity in the 1st and 2nd Causes of Action is correct, but does not go far enough. No individual defendant can be sued in his individual capacity under ADA or RA. Defendants Motion in this matter should be GRANTED and Plaintiff should be GRANTED leave to amend the complaint to drop BACA as an defendant in his individual capacity, and the DOE defendants in their individual capacities.
Defendants assertion that BACA should be dismissed as a defendant in all remaining claims since there are no allegations of personal involvement is erroneous. The 9th Circuit does not use such a standard, although some other circuits such as the 3rd and 7th circuit do have such a requirement. Plaintiffs’ have adequately pled facts and actions under 9th Circuit law, most notably MacKinney and Larez, to retain BACA as a defendant. Accordingly Plaintiffs motion to dismiss BACA from the remainder of the claims should be DENIED.
It is respectfully requested that the court take the actions suggested by Plaintiffs herein above for the reasons outlined in this Memorandum.
DATED: April 9, 2006 JOE H. FREEMAN & ASSOC.