Colbert v. County of Riverside, No. 5:25-cv-01655-SP (Mar. 31, 2026)

Case details
Full caption
Leonard Colbert v. County of Riverside
Country
United States
Jurisdiction
Federal
Decided
Mar. 31, 2026
Disposition
Dismissed
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 931542Only the Westlaw citation is currently available.United States District Court, C.D. California.LEONARD COLBERT, Plaintiff,v.COUNTY OF RIVERSIDE, et al., Defendants.Case No. 5:25-cv-01655-SP|Filed 03/31/2026Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsRoyal D. L. Bond, Bond Law Legal Group, Menfiee, CA, forPlaintiff.Allen Christiansen, Cole Huber LLP, Ontario, CA, forDefendant County of Riverside.MEMORANDUM OPINION AND ORDERGRANTING MOTION TO DISMISS COMPLAINT,BUT GRANTING LEAVE TO AMEND IN PARTSHERI PYM United States Magistrate JudgeI.INTRODUCTION*1 On April 14, 2025, plaintiff Leonard Colbert fileda Complaint in Riverside County Superior Court againstdefendants County of Riverside; Riverside County SheriffChad Bianco, in his individual and official capacities; DoeDeputy 1; Doe Maintenance Worker; and Does 2-25. Plaintiffalleges he suffered injuries after slipping on water in his cellat Cois Byrd Detention Center.Plaintiff asserts seven causes of action: (1) negligence;(2) premises liability; (3) negligent infliction of emotionaldistress; (4) intentional infliction of emotional distress; (5)violation of the Eighth and Fourteenth Amendments; (6)violation of Government Code § 835; and (7) Monell liability.On July 11, 2025, defendant County filed a Motion to Dismissthe Complaint. Defendant Bianco filed a joinder to County'sMotion to Dismiss on October 10, 2025. Plaintiff filed anOpposition to the motion on October 27, 2025. DefendantsCounty and Bianco filed a Reply on October 28, 2025.For the reasons that follow, the court grants the Motion toDismiss the Complaint, but also grants plaintiff leave toamend in part.II.ALLEGATIONS OF THE COMPLAINTOn September 18, 2024, plaintiff was arrested and bookedinto Robert Presley Detenion Center. Compl. 13. Plaintiffinformed law enforcement that he was disabled and neededmedical attention for his knee condition, but was denied care.Id. Plaintiff was later transferred to a Riverside County jail,where he again requested and was denied medical treatmentfor his knee. Id. 14.On or about September 24, 2024, plaintiff was transferredto Cois Byrd Detention Center. Id. 15. The followingday, plaintiff slipped and fell in water leaking from a toiletin his cell. Id. 16. Plaintiff was injured and transportedby wheelchair for medical evaluation. Id. Plaintiff wasprescribed medication and given an ice pack. Id.On September 28, 2024, plaintiff slipped again in his cell dueto the same unrepaired leak. Id. 17. Plaintiff had been toldthe toilet had been repaired, but there was still a leak. Id.Plaintiff was again taken to medical, where he was given aCT scan and ultrasound after reporting severe knee and backpain. Id.On September 30, 2024, plaintiff filed a grievance andrequested a transfer. Id. 18. A maintenance worker claimedhe would fix the toilet by flushing the system, but did notprovide plaintiff any follow up. Id.On October 1, 2024, plaintiff fell a third time due to thestill-leaking toilet. Id. 19. Medical took x-rays and treated
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2him with ice, medication, and a knee brace. Id. Afterwards,plaintiff returned to the same cell. Id.Plaintiff filed another grievance.1 Id. 20.On October 3, 2024, plaintiff was released from custody. Id.As of the date of his release, the toilet had not been repaired.Id.III.STANDARD OF REVIEWUnder Rule 12(b)(6) of the Federal Rules of Civil Procedure,a defendant may move to dismiss a complaint for “failure tostate a claim upon which relief can be granted.” A motion todismiss under Rule 12(b)(6) “tests the legal sufficiency of aclaim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)(as amended). Dismissal for failure to state a claim “can bebased on the lack of a cognizable legal theory or the absenceof sufficient facts alleged under a cognizable legal theory.”Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990) (as amended). A court may not dismiss a complaintunder Rule 12(b)(6) “unless it appears beyond doubt that theplaintiff can prove no set of facts in support of his claimswhich would entitle him to relief.” Barnett v. Centoni, 31 F.3d813, 816 (9th Cir. 1994).*2 “When there are well-pleaded factual allegations, a courtshould assume their veracity and then determine whetherthey plausibly give rise to an entitlement to relief.” Ashcroftv. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009). A claim “has facial plausibility when theplaintiff pleads factual content that allows the court to drawthe reasonable inference that the defendant is liable for themisconduct alleged.” Id. at 678. This plausibility standarddoes not amount to a probability requirement, “but it asksfor more than a sheer possibility that a defendant has actedunlawfully.” Id.“[T]he tenet that a court must accept as true all of theallegations contained in a complaint is inapplicable to legalconclusions. Threadbare recitals of the elements of a causeof action, supported by mere conclusory statements, do notsuffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S.544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).The complaint must both “contain sufficient allegations ofunderlying facts to give fair notice and to enable the opposingparty to defend itself effectively ... [and] must plausiblysuggest an entitlement to relief, such that it is not unfair torequire the opposing party to be subjected to the expense ofdiscovery and continued litigation.” Starr v. Baca, 652 F.3d1202, 1216 (9th Cir. 2011).IV.DISCUSSIONA. The Complaint Fails to State a Claim Against BiancoPlaintiff alleges state law claims and a federal civil rightsclaim against defendant Bianco in his individual and officialcapacities.1. It Is Redundant to Name Bianco in His OfficialCapacityOfficial capacity suits are “another way of pleading an actionagainst an entity of which an officer is an agent.” Monell v.Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690n.55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). As such, an“official-capacity suit is, in all respects other than name, to betreated as a suit against the entity.” Kentucky v. Graham, 473U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); seealso Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873,83 L. Ed. 2d 878 (1985); Larez v. City of Los Angeles, 946F.2d 630, 646 (9th Cir. 1991). Because County is named as adefendant, the court dismisses all claims against Bianco in hisofficial capacity. See Ctr. for Bio-Ethical Reform, Inc. v. LosAngeles Cnty. Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008)(“When both a municipal officer and a local governmententity are named, and the officer is named only in an officialcapacity, the court may dismiss the officer as a redundantdefendant.”).2. Plaintiff Fails to State a Claim Against Bianco inHis Individual CapacityOther than a conclusory allegation that Bianco knew orreasonably should have known about jail conditions, plaintifffails to allege any facts specifically against Bianco. SeeCompl. 54. Therefore, plaintiff fails to state any claim –federal or state – against Bianco.Regarding Claim Five specifically, plaintiff appears to argueBianco is liable in his individual capacity for any personal
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3actions taken by him under the color of law. Opp. at 3.“In order for a person acting under color of state law tobe liable under section 1983 there must be a showing ofpersonal participation in the alleged rights deprivation: thereis no respondeat superior liability under section 1983.” Jonesv. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citationsomitted); see also Roberts by and through Robinson v. Cityof San Francisco, 2019 WL 6036652, at *2 (N.D. Cal. Nov.14, 2019) (§ 844.6(d) does not hold a sheriff vicariouslyliable for injury to a prisoner). A supervisor is liable forthe constitutional violations of a subordinate only “if thesupervisor participated in or directed the violations, or knewof the violations and failed to act to prevent them.” Taylor v.List, 880 F.2d 1040, 1045 (9th Cir. 1989). Here, plaintiff doesnot allege any facts about Bianco whatsoever, much less anyfactual allegations that Bianco personally participated in thealleged constitutional violation or knew about it and failed toprevent it.*3 Accordingly, the court dismisses all claims againstBianco.B. The Tort Claims Act Bars the State Law ClaimsPlaintiff asserts various state law claims – negligence (ClaimOne), premises liability (Claim Two), and negligent inflictionof emotional distress (Claim Three) against defendants; andGovernment Code § 835 (Claim Six) against County. Plaintiffalso asserts an intentional infliction of emotional distress(Claim Four) against Doe Deputy 1 and Doe MaintenanceWorker, which County interprets as seeking to imposerespondeat superior liability on County. And indeed, becauseBianco is being dismissed and the other individual defendantsare merely Doe defendants, County is the only remainingdefendant to any of these claims. County moves to dismiss thestate law claims on the basis that the claims are barred by theTort Claims Act (Cal. Gov't Code § 810 et seq.). Mtn. at 3-6.“Public entities in California are not liable for tortious injuryunless liability is imposed by statute.” Castaneda v. Dep't ofCorrs. and Rehab., 212 Cal. App. 4th 1051, 1069, 151 Cal.Rptr. 3d 648 (2013). Section 844.6(a)(2) of the CaliforniaGovernment Code provides that a public entity is not liablefor an injury to any prisoner. Cal. Gov't Code § 844.6(a)(2). A prisoner is defined as “an inmate of a prison, jail, orpenal or correctional facility.” Cal. Gov't Code § 844. “Forthe purposes of this chapter, a lawfully arrested person whois brought into a law enforcement facility for the purposeof being booked, as described in Section 7 of the PenalCode, becomes a prisoner, as a matter of law, upon his orher initial entry into a prison, jail, or penal or correctionalfacility, pursuant to penal processes.” Id. At all relevant times,plaintiff was incarcerated at a Riverside County detentionfacility and was therefore a prisoner during the time at issue.Compl. 4. Thus, unless a statutory exception exists, Countyis immune from liability for the state law claims.1. Government Code § 845.6 Does Not ApplyPlaintiff argues County is not immune from liability because§ 845.6 creates affirmative liability when a public employeefails to summon medical care. Opp. at 4-5. Plaintiff has notalleged a violation of Cal. Gov't Code § 845.6. Thus, § 845.6is wholly inapplicable here.Moreover, leave to amend to add a claim for violation of §845.6 would be futile. Section 845.6 provides, with certainexceptions:Neither a public entity nor apublic employee is liable for injuryproximately caused by the failure ofthe employee to furnish or obtainmedical care for a prisoner in hiscustody; but, except as otherwiseprovided by Sections 855.8 and 856, apublic employee, and the public entitywhere the employee is acting withinthe scope of his employment, is liableif the employee knows or has reasonto know that the prisoner is in need ofimmediate medical care and he fails totake reasonable action to summon suchmedical care.Cal. Gov't Code § 845.6. “In order to state a claim under §845.6, a prisoner must establish three elements: (1) the publicemployee knew or had reason to know of the need (2) forimmediate medical care, and (3) failed to reasonably summonsuch care.” Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir.2006).*4 Here, plaintiff alleges County provided medical careafter each of his falls. Compl. ¶¶ 16-17, 19. At most,plaintiff alleges County staff did not provide treatment whenhe complained about knee pain and swelling after he wasarrested. Compl. ¶¶ 13-14. But “[l]iability under section 845
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4is limited to serious and obvious medical conditions requiringimmediate care,” and knee pain and swelling are not indicia ofthe need for immediate medical care. Watson v. State of Cal.,21 Cal. App. 4th 836, 841, 26 Cal. Rptr. 2d 262 (1993) (thegovernment was not liable under § 845.6 because althoughappellant complained about tenderness in his ankle, he wasable to walk so the state did not have reason to know herequired surgery). Accordingly, § 845.6 provides no avenuefor liability here.2. Government Code § 845.4 Does Not ApplyPlaintiff contends § 845.4 provides liability for negligent orwrongful omissions by custodial staff. Opp. at 5. Specifically,plaintiff asserts § 845.4 “provides that ‘it does not exonerate apublic entity or employee from liability for injury proximatelycaused by negligent or wrongful acts or omissions of anemployee in furnishing or failing to furnish medical care toprisoners.’ ” Id. As with § 845.6, § 845.4 is inapplicablebecause plaintiff does not allege a violation of it.Moreover, it would be futile to grant plaintiff leave to amendto add a claim for violation of § 845.4. Contrary to plaintiff'sassertion, § 845.4 does not concern negligent acts. Instead,§ 845.4 provides an exception to public entity immunity for“injury proximately caused by the employee's intentional andunjustifiable interference with” “the right of a prisoner toobtain a judicial determination or review of the legality ofhis confinement.” Cal. Gov't Code § 845.4. The Complaintcontains no allegations about any interference with plaintiff'sright to obtain a judicial determination or review of thelegality of his confinement. Nor does plaintiff allege hisdetention was illegal. See id. (“no cause of action ... shall bedeemed to accrue until it has first been determined that theconfinement was illegal”).23. Government Code § 835Plaintiff argues County is not immune from Claim Six – aviolation of Government Code § 835 – because plaintiff wasa “pre-arraignment detainee” and not a prisoner. Opp. at 5-6.Section 835 provides for premises liability for dangerousconditions. Cal. Gov't Code § 835. But as stated above, §844.6(a)(2) provides for immunity from an injury to anyprisoner. Indeed, § 844.6(c) specifically bars a prisoner'sclaim for a dangerous condition of public property. Cal. Gov'tCode § 844.6(c). And contrary to plaintiff's assertion, pretrialdetainees are prisoners under this chapter of the GovernmentCode. Cal. Gov't Code § 844; see Lowman v. Los AngelesCnty., 127 Cal. App. 3d 613, 616, 179 Cal. Rptr. 709 (1982)(citing Datil v. City of Los Angeles, 263 Cal. App. 2d 655,69 Cal. Rptr. 788 (1968)). As such, County is immune fromClaim Six, the § 835 claim.34. Respondeat Superior Liability Does Not Apply toGovernment Code § 844.6*5 Plaintiff argues that because § 844.6(d) does not providepublic employees immunity for injuries proximately causedby their negligence or wrongful act or omission and §815.2(a) provides for vicarious liability, County is liable forthe negligent acts of its employees. Opp. at 6. Plaintiff isincorrect.As stated above, § 844.6(a)(2) provides that a public entitycannot be liable for an injury to a prisoner. Cal. Gov't Code844.6(a)(2). Indeed § 844.6(d) expressly states that a publicentity “is not required to pay any judgment ... or indemnifyany public employee, in any case where the public entity isimmune from liability under this section.” Cal. Gov't Code§ 844.6(d). Plaintiff cannot get around this immunity byinvoking § 815.2. Stewart v. Cnty. of Los Angeles, 2019 WL13244542, at *7 (C.D. Cal. Mar. 4, 2019). Section 815.2 “doesnot apply in the case of injuries to prisoners.” Lawson, 180Cal. App. 4th at 1383. Thus, County is immune from thenegligence claims.45. Assembly Bill 2693 (2023) Does Not RemoveImmunityPlaintiff argues the California Legislature's passage of A.B.2693 in 2023 limited § 844.6 “by removing immunity forclaims arising from sexual assault in correctional or juvenilefacilities” and demonstrates a legislative intent to ensureaccountability for custodial misconduct. Opp. at 6. Plaintiffcontends this means the court should construe § 844.6narrowly and allow his claims under §§ 845.4 and 845.6 toproceed. Id. at 6-7.Plaintiff's argument is utterly unconvincing. First,notwithstanding the fact that A.B. 2693 was vetoed by thegovernor, it concerned the revival of time-barred claims forsexual assaults.5 Plaintiff does not allege any sexual assaultclaim. Second, even if A.B. 2693 had been enacted, it wouldnot limit § 844.6 and remove immunity from the state lawclaims alleged in the Complaint. Finally, as already discussedabove, plaintiff does not allege violations of §§ 845.4 and845.6.
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5Accordingly, County is immune from liability for the state lawclaims. Plaintiff has not identified any statutory exception tothis immunity.C. The Complaint Fails to State a Federal ClaimPlaintiff alleges Doe Deputy 1, Doe Maintenance Worker, andBianco, in his individual capacity violated his rights under theEighth and Fourteenth Amendments by failing to ensure safeconditions of confinement and County is liable under Monellv. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658,98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) for having a customor policy of deliberate indifference to the health and safetyof inmates. County argues the claims should be dismissedbecause they fail to state a claim.1. Plaintiff Fails to State a Constitutional ViolationPlaintiff fails to clearly oppose defendants' motion to dismissClaim Five, unless his conclusory assertion that he has stateda claim counts. See Opp. at 2. For this reason alone, ClaimFive is subject to dismissal. See Torres v. Deutsche BankNat'l Trust Co., 2012 WL 12885116, at *4-*5 (C.D. Cal.Dec. 26, 2012) (plaintiffs' failure to oppose the motion todismiss particular claims is deemed to be a consent to themotion); Qureshi v. Countrywide Home Loans, Inc., 2010 WL841669, at *9 (N.D. Cal. Mar. 10, 2010) (dismissing claimafter plaintiff failed to oppose its dismissal); but see Johnsonv. Meta Platforms, Inc., 2023 WL 5021784, at *3 (N.D. Cal.Aug. 4, 2023) (declining to find plaintiff had abandoned claimunaddressed in opposition to motion to dismiss and evaluatedthe motion to dismiss on the merits).*6 In any event, with Claim Five, plaintiff fails to state aclaim. As an initial matter, the Eighth Amendment appliesto prisoners while the Due Process clause of the FourteenthAmendment applies to conditions of confinement claims forpretrial detainees. See Mendiola-Martinez v. Arpaio, 836F.3d 1239, 1246 n.5 (9th Cir. 2016) (“Eighth Amendmentprotections apply only once a prisoner has been convictedof a crime, while pretrial detainees are entitled to thepotentially more expansive protections of the Due ProcessClause of the Fourteenth Amendment.”); Castro v. Cnty.of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016)(“Inmates who sue prison officials for injuries suffered whilein custody may do so under the Eighth Amendment's Crueland Unusual Punishment Clause or, if not yet convicted,under the Fourteenth Amendment's Due Process Clause.”).Plaintiff fails to allege whether he was a pretrial detaineeor prisoner, but given the dates of his arrest and falls, thecourt assumes plaintiff was a pretrial detainee. See Compl.¶¶ 13, 16-17, 19; see also Opp. at 6. Accordingly, the courtevaluates Claim Five as a Fourteenth Amendment due processviolation. Regardless, plaintiff fails to state a claim undereither Amendment.As discussed above, there is no respondeat superior liabilityunder 42 U.S.C. § 1983. Jones, 297 F.3d at 934. Biancocannot be liable for a violation of the 14th Amendmentunless he personally participated in the violation or knewof it and failed to act. Taylor, 880 F.2d at 1045. Plaintiffalleges no facts showing Bianco personally participatedin the decisions concerning plaintiff's leaky toilet andconditions of confinement. Instead, plaintiff simply allegesin conclusory fashion that Bianco knew or reasonably shouldhave known about the jail conditions and failed to provideproper oversight. Compl. 54. But conclusory allegationsof knowledge unsupported by facts are not sufficient towithstand a motion to dismiss. Ivey v. Bd. of Regents of theUniv. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see alsoJones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir.1984) (finding conclusory allegations unsupported by factsinsufficient to state a claim under § 1983).To bring a pretrial detainee's conditions of confinement claimunder the Fourteenth Amendment, a plaintiff must establishthe following elements:(i) the defendant made an intentionaldecision with respect to the conditionsunder which the plaintiff was confined;(ii) those conditions put the plaintiffat substantial risk of suffering seriousharm; (iii) the defendant did not takereasonable available measures to abatethat risk, even though a reasonableofficial in the circumstances wouldhave appreciated the high degreeof risk involved – making theconsequences of the defendant'sconduct obvious; and (iv) by not takingsuch measures, the defendant causedthe plaintiff's injuries.Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir.2018). Even if plaintiff were able to assert factual allegations
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6of Bianco's knowledge, a leaky toilet does not rise to thelevel of a Fourteenth Amendment violation because it isnot a condition that puts plaintiff at substantial risk ofsuffering serious harm. See Bell, 441 U.S. at 539 n.21 (deminimis levels of imposition do not rise to a constitutionalviolation). Plaintiff alleges he suffered from an unspecifiedknee condition, but without more, the court cannot infer fromthe Complaint's allegations that plaintiff was at substantialrisk of serious harm from water on the floor. The temporaryor short term exposure – here, nine days – to the conditionfurther indicates it does not amount to a constitutionalviolation. See Curley v. Clark, 2023 WL 8021516, at *4(E.D. Cal. Nov. 20, 2023) (“temporarily unconstitutionalconditions of confinement do not necessarily rise to the levelof constitutional violations”). Moreover, plaintiff alleges thatsomeone was sent to repair the toilet after his falls and thuscannot establish that Bianco or anyone else failed to takereasonable measures to abate the condition or acted withreckless disregard. See Compl. ¶¶ 17, 18, 43-44.*7 As such, even if plaintiff had opposed the motion todismiss Claim Five, it would still be dismissed for failure tostate a claim.2. Plaintiff Fails to State a Claim for Monell LiabilityIn Claim Seven, plaintiff alleges County is liable for theviolation of his Eighth and Fourteenth Amendment rightsbecause it has an official policy, custom, or practice ofpermitting unconstitutional conditions of confinement in itsdetention facilities.A local government entity such County “may not be suedunder § 1983 for an injury inflicted solely by its employees oragents. Instead, it is only when execution of a government'spolicy or custom, whether made by its lawmakers or bythose whose edicts or acts may fairly be said to representofficial policy, inflicts the injury that the government asan entity is responsible under § 1983.” Monell, 436 U.S.at 694. Thus, County may not be held liable for thealleged actions of its employees unless “the action thatis alleged to be unconstitutional implements or executes apolicy statement, ordinance, regulation, or decision officiallyadopted or promulgated by that body's officers,” or if thealleged constitutional deprivation was “visited pursuant toa governmental ‘custom’ even though such a custom hasnot received formal approval through the body's officialdecisionmaking channels.” Id. at 690-91.Monell liability is foreclosed because there is noconstitutional violation. Lockett v. Cnty. of Los Angeles, 977F.3d 737, 741 (9th Cir. 2020) (“Monell claims [ ] requirea plaintiff to show an underlying constitutional violation.”).Moreover, plaintiff does not allege any facts to support hisclaims that County has a policy or longstanding practiceof failing to fix leaky toilets. Conclusory allegations areinsufficient to state a Monell claim. See, e.g., Correa v.Whittier City Police Dep't, 2023 WL 4409118, at *5 (C.D.Cal. Mar. 14, 2023) (conclusory allegations of policies andcustoms are insufficient to state a claim). Finally, plaintiff'sallegations reflect a single leaky toilet that was not adequatelyrepaired. A single incident is insufficient to establish a customor practice. See Hunter v Cnty. of Sacramento, 652 F.3d 1225,1233 (9th Cir. 2011) (a custom or practice may be inferredfrom evidence of repeated constitutional violations); Davis v.City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 1989) (“Aplaintiff cannot prove the existence of a municipal policy orcustom based solely on the occurrence of a single incident ofunconstitutional action by a non-policymaking employee.”).Accordingly, the Complaint fails to state a FourteenthAmendment or Monell claim.D. Does 10-25 Are DismissedLocal Rule 19-1 limits the number of fictitious defendants ina complaint to ten. L.R. 19-1. In addition to Doe Deputy 1and Doe Maintenance Worker, plaintiff names Does 2-25 asdefendants. Accordingly, the court grants defendants' motionto dismiss Does 10-25.6E. Leave to Amend Is Granted in PartWhether leave to amend should be granted here is a closequestion, despite plaintiff having had only one opportunityto plead so far. First, County is immune from liability forthe state law claims, and there is no indication plaintiff canplausibly allege liability against any individual for thoseclaims. Second, plaintiff has alleged no facts specific toBianco and there is no indication plaintiff is able to allegehis personal participation. Third, plaintiff failed to opposethe motion to dismiss the Fourteenth Amendment claim, andthere is no indication he can allege such a claim given thefacts presented here. See also Bulan v. JPMorgan ChaseBank, 2011 WL 13266527, at *7 (N.D. Cal. Apr. 6, 2011)(“Because Plaintiffs failed to oppose the motion to dismiss,the dismissal should be without leave to amend.”). Fourth,absent a constitutional violation, plaintiff cannot state aMonell claim, and nor is there any indication of an applicable
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.7policy or custom or practice that would permit such a claimto go forward. And fifth, nothing in the allegations in theComplaint suggests there is a basis for plaintiff to state a claimagainst a deputy or a maintenance worker simply becausethey tried but failed to immediately fix a leaky toilet, even ifplaintiff were able to identify these Doe defendants.*8 Nonetheless, because the court is unable to determineconclusively at this juncture that amendment would be futile,leave to amend is granted to the extent set forth below.V.ORDERFor the foregoing reasons, defendants' Motion to Dismiss theComplaint (docket no. 5) is GRANTED. Defendants Biancoand Does 10-25 are dismissed. Plaintiff's state law claimsagainst defendant County (Claims One, Two, Three, Four, andSix) are dismissed without leave to amend. Plaintiff's federalcivil rights claims (Claims Five and Seven) are dismissed withleave to amend. Plaintiff may file a First Amended Complainton or before April 21, 2026.All CitationsSlip Copy, 2026 WL 931542Footnotes1Plaintiff alleges this was his third grievance but the Complaint only contains mentions of two grievances. SeeCompl. ¶¶ 13-20.2Plaintiff's Opposition includes a quotation of purported language from § 845.4 (Opp. at 5); however, the courtcould not locate the quoted statutory language in § 845.4 or any other section of the California GovernmentCode. Nor could the court find any case, federal or state, containing the quoted language. This suggestscounsel may have used artificial intelligence to draft the opposition memorandum and failed to confirm theaccuracy of the citations and quotes.All counsel who appear before this court must comply with the California Rules of Professional Conduct andFederal Rules of Civil Procedure and, among other things, not make false statements of fact or law. See,e.g., Cal. R. Prof. Conduct 3.3(a)(1); Fed. R. Civ. P. 11(b)(2). Although this court has not yet enacted rulesor orders specifically addressing the use of artificial intelligence, this does not permit counsel to submit abrief with non-existent authority. Cf. Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 461 (S.D.N.Y. 2023) (“Afake opinion is not ‘existing law’ and ... [a]n attempt to persuade court or oppose an adversary by relyingon fake opinions is an abuse of the adversary system.”). Counsel has a duty to “read, and thereby confirmthe existence and validity of, the legal authorities on which they rely.” Park v. Kim, 91 F.4th 610, 615 (2d.Cir. 2024).3Before bringing a suit against a public entity, the California Government Tort Claims Act requires the timelypresentation of a written claim and a rejection in whole or part. Cal. Gov't Code § 905; Mangold v. Cal. Pub.Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) (citation omitted). A plaintiff must allege facts demonstratingeither compliance with the GTCA requirement or an excuse for noncompliance. Cal. v. Super. Ct. (Bodde),32 Cal. 4th 1234, 1243-44, 13 Cal. Rptr. 3d 534, 90 P. 3d 116 (2004). Plaintiff alleges she presented ClaimSix, but it is unclear whether she presented all of the state law claims. Compl. 63.4Plaintiff asserts claims of negligence (Claim One) and negligent infliction of emotional distress (Claim Three).In California, there is no independent tort of negligent infliction of emotional distress. Bates v. Hartford Life
LEONARD COLBERT, Plaintiff, v. COUNTY OF RIVERSIDE, et..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.8and Acc. Inc. Co., 765 F. Supp. 2d 1218, 1222 (C.D. Cal. 2011) (citing Potter v. Firestone Tire & Rubber Co.,6 Cal. 4th 965, 984, 25 Cal. Rptr. 2d 550, 863 P. 2d 795 (1993)). The tort is negligence.5See https://legiscan.com/CA/bill/AB2693/2023.6Defendants move to dismiss Does 11-25, but Doe Deputy 1, Doe Deputy Maintenance Worker, and Does2-9 amount to 10 fictitious defendants.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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