Lucinda Lozano; v. County of Santa Clara;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCINDA LOZANO; et al.,
Plaintiffs-Appellants,
v.
COUNTY OF SANTA CLARA; et al.,
Defendants-Appellees.
No. 20-15992
D.C. No. 3:19-cv-02634-EMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted August 10, 2021
San Francisco, California
Before: SILER,** CHRISTEN, and FORREST, Circuit Judges.
Plaintiffs appeal the district court’s Rule 12(b)(6) dismissal of claims
brought pursuant to 42 U.S.C. § 1983 by the parents of deceased inmate Johnny
Lozano. Because the parties are familiar with the facts, we do not recite them here.
FILED
SEP 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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We review de novo a dismissal for failure to state a claim pursuant to Rule
12(b)(6), Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011), and we
review for abuse of discretion an order granting dismissal without leave to amend,
OSU Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Plaintiffs argue they adequately pleaded that the County’s policies amounted
to deliberate indifference, and that the policies were the “moving force” behind
Lozano’s death pursuant to Monell v. Department of Social Services, 436 U.S. 658,
690, 694 (1978). See Dougherty, 654 F.3d at 900. The district court found that the
Amended Complaint alleged three County policies: “(1) failing to provide long-
term treatment plans for inmates,” (2) “canceling medical appointments and
falsifying the reasons for doing so,” and (3) “denying medically necessary
treatment to inmates for financial reasons.” The parties do not dispute that Lozano
had serious medical needs from the outset of his detention.
We conclude the Amended Complaint failed to allege deliberate indifference
due to any of these policies. First, while plaintiffs argue that Lozano was treated
with deliberate indifference because he was denied a long-term treatment plan,
they have not alleged that a reasonable officer would have known that the absence
of such a plan could result in further significant injury or the unnecessary and
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wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); cf.
Long v. County of Los Angeles, 442 F.3d 1178 (9th Cir. 2006). Indeed, plaintiffs
allege that Lozano was denied routine care, but never specify what routine care
Lozano did not receive that would have prevented his death. As the district court
observed, the alleged facts are insufficient to raise an inference that additional
routine treatment would have prevented Lozano’s decline and death. See
Dougherty, 654 F.3d at 900.
Plaintiffs’ argument that Lozano suffered constitutional injury due to
cancellation of medical appointments also fails. Lozano was able to access
medical care on numerous occasions during his confinement, and he was never
denied treatment when symptomatic. Though subject to some delays, Lozano
received monitoring of his condition in the form of blood draws, vital sign checks,
medication, and medical device monitoring, and his medical appointments were all
eventually rescheduled. Cf. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir.
2012). Hence, plaintiffs have not adequately alleged that Lozano experienced
constitutional harm due to denial of a long-term treatment plan or cancellation of
medical appointments.
Plaintiffs also have not adequately alleged that Lozano was denied
medication and medical attention for financial reasons, or that any such denial
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caused Lozano’s decline or death. With regard to the denial of a potential transfer
to Stanford, while the Complaint alleges that Lozano was not sent for further
treatment for financial reasons (e.g. because the jail system could not care for him
post-transplant), plaintiffs also allege that Dr. Fowler told Dr. Zhao that, in his
opinion, Lozano would not be a good fit for a transplant. This does not constitute
deliberate indifference by the County, nor have plaintiffs alleged that, had Lozano
received the transplant or some other heart implantation, he would have survived.
For these reasons, we conclude that Lozano did not plausibly allege deliberate
indifference due to a County policy.
2. Plaintiffs further argue that the district court erred by dismissing their § 1983
claim against the doctor defendants. Plaintiffs have not adequately alleged that any
of the individual doctors’ conduct created a “substantial risk of suffering serious
harm” that “a reasonable official in the circumstances would have appreciated,”
nor that their conduct caused Lozano’s decline and death. Gordon v. County of
Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). Therefore, we conclude that the
district court did not err by dismissing these claims.
3. Plaintiffs submit that the district court abused its discretion by denying leave
to amend on both their Monell claim and their claims against the doctor defendants.
However, in their appellate briefing, plaintiffs have not indicated that they would
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be able to allege additional facts that could redeem their claims. Thus, we
conclude the district court did not abuse its discretion by denying leave to amend
the constitutional claims, as granting leave to amend would likely be futile.
4. Finally, plaintiffs argue the district court abused its discretion by
dismissing their medical malpractice and wrongful death claims without leave to
amend because California’s “delayed discovery doctrine” should apply. We
conclude that plaintiffs have forfeited this argument because they first raised it in
their motion for reconsideration. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir.
2018).
AFFIRMED.
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