NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARISOL VIVANCO, Individually and as 

Successor in Interest of Solton Vivanco 

Gonzalez, deceased, 

Plaintiff-Appellant, 

 v. 

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND 

REHABILITATION; SCOTT 

FRAUENHEIM, Warden, 

Defendants-Appellees.

No. 19-16490 

D.C. No. 1:17-cv-00434-BAM 

MEMORANDUMP0FP0F

*

P

Appeal from the United States District Court

for the Eastern District of California

Barbara McAuliffe, Magistrate Judge, Presiding

Submitted July 15, 2020P

*

P1FP1F

*

P

San Francisco, California

Before: SILER,P

**

P2FP2F

*

P TALLMAN, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

AUG 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Marisol Vivanco appeals from the district court’s order granting summary 

judgment for the California Department of Corrections and Scott Frauenheim, the 

Pleasant Valley State Prison warden. We have jurisdiction under 28 U.S.C. § 1291. 

We review de novo the district court’s grant of summary judgment. Devereaux v. 

Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). We affirm.

1. Eighth Amendment Claim. There is no evidence in the record that 

Frauenheim, or any CDCR staff, knew of decedent Solton Gonzalez’s heightened 

risk of suicide and was deliberately indifferent to it. See 15TEstelle v. Gamble15T, 429 U.S.

97, 104 (1976). Two days before his suicide, Gonzalez reported that his depression 

was at a 4/10, and CDCR Staff Psychologist Dr. Lee noted that he did not exhibit 

suicidal thoughts or behaviors. The day before Gonzalez’s suicide, Dr. Lee again 

reported that Gonzalez did not exhibit suicidal thoughts or behaviors. While CDCR 

staff knew of Gonzalez’s prior suicide attempts, those suicide attempts occurred in 

2012 and 2014. 

In addition, Vivanco stipulated that Pleasant Valley State Prison’s policies 

and procedures complied with the court’s orders in Coleman v. Brown, 28 F. Supp. 

3d 1068 (E.D. Cal. 2014). It is also undisputed that Frauenheim consulted with 

mental health professionals and considered Gonzalez’s mental health when deciding 

he should remain in short-term restricted housing. See Peralta v. Dillard, 744 F.3d 

1076, 1086–87 (9th Cir. 2014) (en banc) (concluding that prison administrator 
3 

relying on treatment plan signed off on by medical officials was not aware of risk of 

harm). 

2. Fourteenth Amendment Claim. There is no evidence that Frauenheim 

acted arbitrarily or with deliberate indifference that shocks the conscience. See 

County of Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998). Vivanco stipulated 

that Frauenheim complied with Coleman. Vivanco also stipulated that she had “no 

evidence to support her claim that Defendant Frauenheim’s conduct was motivated 

by a purpose to cause harm to [decedent] unrelated to his incarceration.” 

3. State Law Claim. Under California law, a public employee is liable for 

failing to obtain medical care “if the employee knows or has reason to know that the 

prisoner is in need of immediate medical care and he fails to take reasonable action 

to summon such medical care.” Cal. Gov. Code § 845.6. Vivanco’s arguments 

involve CDCR staff’s decisions about Gonzalez’s care, not a failure to summon care. 

See Castaneda v. Dep’t of Corr. & Rehab., 151 Cal. Rptr. 3d 648, 663–64 (2013).

4. Doe Defendants. Because Vivanco did not amend her complaint to name 

the Doe defendants or serve the unknown defendants, the district court properly 

exercised its authority to dismiss the Doe defendants sua sponte. See Craig v. United 

States, 413 F.2d 854, 856 (9th Cir. 1969); see also Bryant v. Ford Motor Co., 886 

F.2d 1526, 1532–33 (9th Cir. 1989) (rejecting argument that “action against the doe 
4 

defendants was still pending when the district court entered summary judgment 

against” the named defendant). 

AFFIRMED.