Shane Cavanaugh, an individual v. County of San Diego, a municipal Corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANE CAVANAUGH, an individual and
as personal representative of the Estate of
Richard Boulanger; THE ESTATE OF
RICHARD BOULANGER,
Plaintiffs-Appellants,
v.
COUNTY OF SAN DIEGO, a municipal
Corporation; et al.,
Defendants-Appellees,
No. 20-56311
D.C. No.
3:18-cv-02557-BEN-LL
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted December 8, 2021
Pasadena, California
Before: BEA and LEE, Circuit Judges, and BENNETT,** District Judge.
This case arises from the suicide of Richard Boulanger, who died in the
hospital two days after he was found hanging from a noose made of bedsheets inside
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
FILED
DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of his cell in pretrial custody at the San Diego County jail. Boulanger’s son, Shane
Cavanaugh, in his personal capacity and as representative of the Estate of Boulanger,
brought numerous claims under 42 U.S.C. § 1983 and California state law against
San Diego County jail deputies and supervisors, as well as San Diego County itself.
He appeals the dismissal of his complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim for relief. We have jurisdiction under 28 U.S.C.
§ 1291, review de novo, Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011), and
affirm.
As the parties are familiar with the facts, we do not recite them here, save as
context requires.
1. The Deliberate Indifference Claim
The complaint does not allege that the jail deputies knew or had reason to
know that Boulanger was detoxing from opiates and alcohol, let alone that he faced
a “heightened risk of suicide,” Conn v. City of Reno, 591 F.3d 1091, 1095 (9th Cir.
2010) (opinion vacated and reinstated by 658 F.3d 897 (9th Cir. 2011)). Indeed, on
entering San Diego’s jail, Boulanger indicated to intake staff that he was not suicidal.
Thus, the complaint does not plausibly allege that reasonable officers in the same
circumstances as the deputies “would have appreciated the high degree of risk
involved,” as required to state a claim for relief based on deliberate indifference to
Boulanger’s risk of suicide by muting the jail’s intercom system or performing short

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cell checks, Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2019).
Furthermore, while the intercom system was muted, the officers did not turn off the
visual alert system. As such, the complaint fails to state a claim for relief for
deliberate indifference under the Fourteenth Amendment against Deputies Dixon,
Parent, and Reyes. As there is no respondeat superior liability under 42 U.S.C. §
1983, Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), Cavanaugh’s claims
against the supervisory defendants, Sheriff Gore and Lieutenant Kamoss, fail as a
matter of law.
2. The Monell Claim
Because the complaint did not adequately plead a constitutional violation by
the individual defendants, the district court correctly dismissed the Monell claim
against San Diego County. See City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986). Moreover, a Monell claim requires the plaintiff to plead facts establishing
that the county had a policy of deliberate indifference. Mabe v. San Bernardino
County, Dept. of Public Social Services, 237 F.3d 1101, 1110-11 (9th Cir. 2001).
But here, the complaint pleaded facts establishing that the named deputies violated
jail policies regarding inmate supervision.
3. The Substantive Due Process Claim
In the absence of factual allegations sufficient to state a claim for deliberate
indifference to Boulanger’s medical needs, Cavanaugh’s substantive due process

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claim for violation of his own right to familial association under the Fourteenth
Amendment fails as a matter of law. See Lemire v. Cal. Dept. of Corr. and Rehab.,
726 F.3d 1062, 1075 (9th Cir. 2013).
4. The State Law Claims
The district court properly dismissed Cavanaugh’s state law claims as
procedurally barred and without merit.
5. Leave to Amend
The district court did not abuse its discretion when it denied leave to amend
the complaint for a third time. See Chodos v. West Publishing Co., 292 F.3d 992,
1003 (9th Cir. 2002).
AFFIRMED.

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