WILLIAM B. SHUBB, United States District Judge.
Plaintiff brings this action as the personal representative of the estate of Walter Fratus ("Fratus"), an inmate who died from infections in his leg and urinary tract while incarcerated in the California Department of Corrections. Defendant Mercy Medical Center ("Mercy") moves to dismiss plaintiff's First Cause of Action pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
Plaintiff brings three causes of action. Mercy is named as a defendant in only the first cause of action.
I. Background
Walter Fratus was a paraplegic serving a prison sentence in the California Department of Corrections. (First Am. Compl. ¶ 14.) In 1993, Fratus was diagnosed with a cyst on his kidney, and later developed an infection in his urinary tract and open wounds on his leg. (Id. ¶¶ 17, 28.) On a few occassions, Fratus was transferred to Mercy, which had contracted with defendant State of California to provide medical care to inmates. (Id. ¶ 10.) According to the First Amended Complaint, Mercy provided inadequate care to Fratus at the direction of various state officials, despite knowing that Fratus "risked imminent death" if not adequately treated for his infections. (Id. ¶ 29.) In August of 2000, Fratus died because of the infections in his leg and urinary tract. (Id. ¶ 31.) Plaintiff, who is Fratus's step-brother and the executor of Fratus's estate, brings this action against Mercy under 42 U.S.C. § 1983. (Id. ¶ 3.) Mercy argues that plaintiff's action should be dismissed because (1) plaintiff lacks standing, (2) plaintiff has not pled facts sufficient to allege that Mercy acted under color of law as required by section 1983, and (3) plaintiff has not pled facts sufficient to allege a substantive violation of section 1983.
II. Discussion
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). In general, the complaint is construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks International Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. ¶ (1963). The court may not dismiss for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Dismissal is appropriate if plaintiff fails to put forth either (1) a cognizable legal theory, or (2) sufficient allegations of fact under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc, 749 F.2d 530, 533-34 (9th Cir. 1984).
A. Standing
Mercy correctly points out that plaintiff fails to allege violations of his own civil rights. Nevertheless, as the personal representative of Fratus's estate, plaintiff has standing to bring a section 1983 claim for the alleged violations of Fratus's rights. "[A] section 1983 claim that accrued before death survives the decedent when state law authorizes a survival action as a `suitable remed[y] . . . not inconsistent with the Constitution and laws of the United States . . . .'" Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir. 1987) (citations omitted). According to state law, the only persons with standing to sue for wrongful death are the decedent's successors in interest, or "the decedent's personal representative on their behalf." Cal. Code Civ. Proc. § 377.60.
As the sibling of the decedent, plaintiff does not have a cognizable liberty interest in Fratus's companionship. See Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1991); Palacios v. City of Oakland, 970 F. Supp. 732, 745 (N.D.Cal. 1997).
Cal. Code Civ. Proc. § 337.60 provides: "A cause of action for the death of a person caused by the wrongful act or neglect of the another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: 9a) The decedent's surviving spouse, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, who would be entitled to the property of the decedent by intestate succession. (B) Whether or not qualified under subdivision (a), if they were dependent on the decent, the putative spouse, children of the putative spouse, stepchildren, or parents."
The third paragraph of the First Amended Complaint makes clear that "[p]laintiff is the executor of the estate of WALTER FRATUS, and in that capacity brings this action as the personal representative of the estate . . . ." (First Am. Compl. ¶ 3.) Therefore, plaintiff has standing as the personal representative of the estate.
B. Action Under Color of State Law
Mercy next argues that plaintiff has not adequately alleged state action. "To state a section 1983 claim, a plaintiff must allege facts which show a deprivation of a right, privilege, or immunity secured by the Constitution or federal law by a person acting under the color of state law." Lopez v. Dept. of Health Services, 939 F.2d 881, 883 (9th Cir. 1991). In Lopez, the Ninth Circuit found that state action was sufficiently alleged by a complaint stating that the defendant hospital was under contract with the State of Arizona to provide medical services to indigents. Id. Similarly, in West v. Atkins, 487 U.S. 42, 54 (1988), the Supreme Court held that "a private physician under contract with a state to provide medical services to inmates [is] a state actor for purposes of section 1983." Id. Here, plaintiff alleges that Mercy contracted with the State of California which "by its provisions resulted in substandard care to prison inmates." (First Am. Compl. ¶ 10.) This is sufficient to allege that Mercy acted under color of state law. Defendants rely on the Supreme Court's decision in Blum v. Yaretsky, 457 U.S. 991, 1008 (1982), which held that there is no state action where the alleged constitutional violations "ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State." Blum does not apply to this case. Plaintiff has alleged that Mercy was influenced in its actions by directives from state officials, not that Mercy violated Fratus's rights as a consequence of its own, independent medical judgment. (First Am. Compl. ¶ 29.) Plaintiff's allegations are therefore sufficient to withstand the motion to dismiss.
C. Sufficiency of Factual Allegations
Finally, Mercy argues that plaintiff has failed to allege facts sufficient to support a section 1983 claim. In Branch v. Tunnel, 937 F.2d 1382 (9th. Cir., 1991) (hereinafter "Branch I") and Branch v. Tunnel, 14 F.3d 449, 456 (9th Cir. 1994) (hereinafter Branch II"), the Ninth Circuit adopted a heightened pleading standard in cases in which subjective intent is an element of a constitutional tort action. Branch I, at 1386. The Ninth Circuit held that "in order to survive a motion to dismiss, plaintiffs must state in their complaint nonconclusory allegations setting forth evidence of unlawful intent." Id. A complaint "must be specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity." Id. (citing Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir., 1989)).
Since the decisions in Branch I and Branch II, the United States Supreme Court has looked with disfavor upon judicially heightened pleading standards. In Leatherman v. Terrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164-69,(1993), the Court held that in civil rights cases alleging municipal liability under section 1983 a federal court may not apply a heightened pleading standard more stringent than the usual pleading requirements. Then, in Crawford-El v. Britton, 523 U.S. 574 (1998), the Court found that the District of Columbia Court of Appeals erred in fashioning a heightened burden of proof for unconstitutional-motive cases against public officials. Id. at 595.
The Ninth Circuit has yet to address the impact of Crawford-El on its decisions in Branch I and Branch II. Crawford-El, however, does address, and reject, judicially-imposed heightened proof standards in individual capacity suits. Given the Supreme Court's disapproval of heightened standards not derived from federal statutory authority or the federal rules, this court does not believe that the Ninth Circuit would continue to apply such a standard in the context of the pleadings in this case. The better approach is to apply the liberal pleading standards of Rule 8. However, the court need not speculate on what the Ninth Circuit is likely to do; even under the heightened pleading standard adopted in Branch I and II, plaintiff has adequately stated a claim for relief.
Several other circuits have concluded that a heightened pleading standard no longer applies in constitutional tort cases in which subjective intent is an element. See Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001); Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998).
To state a claim of inadequate medical care under the Eighth Amendment, plaintiff must allege deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). A defendant is deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1984).
Mercy contends that the complaint is deficient because "no allegation of improper treatment by Mercy is set forth." (Def's Mot. Dismiss at 8.) However, the complaint alleges that "MERCY and PHYSICIANS . . . [knew] that the care they were rendering was inadequate." (First Am. Compl. ¶ 29.) The only inference to be drawn from this sentence is that Mercy was treating Fratus, and that the care it rendered was improper. Mercy also argues that plaintiff's allegations are inconsistent, vague, and conclusory. Mercy interprets the allegations in the First Amended Complaint that Mercy was "constrained by the policies and directives" of state officials and "acquiesced in those directives" to imply overt interference by the state. (First Am. Compl. ¶ 29.) Mercy argues that these allegations identify the state officials as the responsible actors, and are therefore inconsistent with the notion that Mercy itself caused the alleged constitutional deprivation. Construed favorably to the plaintiff, however, these allegations establish that Mercy knew of a risk to Fratus's health, but disregarded it because it was more concerned with complying with state directives than treating Fratus's serious health problems. These allegations are sufficiently specific to satisfy even the heightened pleading standard applied to section 1983 cases, and adequately allege deliberate indifference.
D. Damages For Pain and Suffering
Defendants alternatively move to strike plaintiff's request for damages for pain, suffering, and emotional distress allegedly suffered by Fratus before he died. Under Rule 12(f), the court may strike from the pleadings any "redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.Proc. 12(f).
Whether a plaintiff can recover damages for pain and suffering under a section 1983 claim for wrongful death is a matter of some dispute. The Ninth Circuit has expressly declined to rule on the issue, and lower courts have come out on both sides. See Smith, 818 F.2d 1411, 1417 n. 8 (refusing to express an opinion on the issue); Garcia v. Whitehead, 961 F. Supp. 230 (C.D.Cal. 1997) (finding that pain and suffering damages are recoverable in a wrongful death action under section 1983); Gutyon v. Phillips, 532 F. Supp. 1154 (N.D.Cal. 1987) (same); Davis v. City of Ellensburg, 651 F. Supp. 1248 (E.D.Wash. 1987) (same); Garcia v. Superior Court, 42 Cal.App.4th 177 (1996) (finding that pain and suffering damages cannot be recovered). Judge Levi, in Venerable v. City of Sacramento, CIV-S-01-0369 DFL JFM (E.D.Cal. 2001), has held that pain and suffering damages are not recoverable in 1983 wrongful death actions.
Section 1983 itself does not address whether a person may bring an action for wrongful death, or what the appropriate remedies are for such a claim. Pursuant to section 1988 of the Civil Rights Act, however, federal courts may look to state law where the federal civil rights statutes "are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law . . . ." 42 U.S.C. § 1988(a). This rule is "subject to the important proviso that state law may not be applied when it is `inconsistent with the Constitution and laws of the United States.'" Robertson v. Wegmann, 436 U.S. 584, 590 (1978) (quoting 42 U.S.C. § 1988(a)).
California's wrongful death statute provides for compensatory and punitive damages, but does not allow recovery of damages for pain and suffering of the decedent. Cal. Code Civ. Proc. § 377.34. Limiting recovery to damages recoverable under § 377.34 is not inconsistent with section 1983's objective to deter and compensate for unconstitutional acts under color of law. Robertson, 436 U.S. at 590-91.
"In an action or proceeding by a decedent's personal respresentative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." Cal. Code Civ. Proc. § 377.34
The deterrent purpose of section 1983 is adequately served by the provision of compensatory and punitive damages under the wrongful death statute. To say that the unavailability of pain and suffering damages diminishes the deterrent effect of the statute is to assume that a state actor would rather kill a person than injure him to avoid paying damages for pain and suffering. This assumption requires a fanciful view of human nature. "A state official contemplating illegal activity must always be prepared to face the prospect of a § 1983 action being filed against him. In light of this prospect, even an official aware of the intricacies of [state] survivorship law would hardly be influenced in his behavior by its provisions." Robertson, 436 U.S. at 592.
Accepting, arguendo, that a state actor would undertake this kind of Machiavellian calculus, "we must also attribute to the actor the knowledge that under Code of Civil Procedure section 377.34, a jury could punish such conduct with huge exemplary damages," or that he could be prosecuted for homicide. Garcia, 42 Cal.App.4th at 186. This prospect is sufficient to deter unlawful conduct that might result in death. Section 1983's goal to compensate victims of constitutional violations is also served by the California wrongful death statute. The California legislature has on three occasions revised the statute without changing the exclusion of damages for pain and suffering. Sullivan v. Delta Airlines, Inc., 15 Cal.4th 288, 297 (1997); Cal. Prob. Code § 573(c) (1961); Cal. Code Civ. Proc. §§ 377.10-34. The statute "represents the legislature's reasonable judgment that, once deceased, the decedent cannot in any practical way be compensated for his injuries for pain and suffering, or be made whole." Garcia, 42 Cal.App.4th 177 (1996). Family members of the decedent, who can be compensated for their own loss, can recover damages for the decedent's lost income and for loss of society and companionship. Krouse v. Graham, 19 Cal.3d 59, 67-68 (1977); Cal. Code Civ. Proc. §§ 377.60; 377.61.
Because the damage provisions of the state wrongful death statute are consistent with federal law, the court finds that pain and suffering damages are not available for section 1983 wrongful death claims. Accordingly, plaintiff's prayer for pain and suffering damages must be stricken.
IT IS THEREFORE ORDERED that:
(1) Defendant Mercy's motion to dismiss be, and the same hereby is, DENIED;
(2) Defendant Mercy's motion to strike plaintiff's claim for damages for pain and suffering of the decedent as against defendant Mercy be, and the same hereby is, GRANTED.