Frary et al v. County of Marin et al

Filing 192

ORDER by Judge Maria-Elena James granting in part and denying in part #97 Defendants' Motion for Summary Judgment; granting #180 Plaintiffs' Motion for Leave to File Amended Complaint (mejlc2, COURT STAFF) (Filed on 2/25/2015)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 LYNNETTE FRARY, et al., 9 Case No. 12-cv-03928-MEJ Plaintiffs, 10 v. United States District Court Northern District of California 11 COUNTY OF MARIN, et al., 12 Defendants. 13 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING PLAINTIFFS’ MOTION TO FILE THIRD AMENDED COMPLAINT Re: Dkt. Nos. 97, 180 14 15 INTRODUCTION 16 17 18 19 20 21 22 Plaintiffs sued the County of Marin and individual jail staff (“Defendants”) for their alleged deliberate indifference to decedent Anthony Carmignani‟s serious medical needs while he was in Defendants‟ custody. See Dkt. No. 52, Second Am. Compl. Now pending before the Court is Defendants‟ Motion for Summary Judgment. Dkt. No. 97 (“Mot.”). Plaintiffs oppose the motion.1 Dkt. No. 131 (“Opp‟n”). The Court held a hearing on December 18, 2014. Dkt. No. 171. Having considered the parties‟ positions, relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants‟ Motion for the reasons set 23 forth below. 24 BACKGROUND 25 The following facts are undisputed unless otherwise indicated: 26 27 28 1 Plaintiff Heather Howard filed a joinder to Plaintiff Lynette Frary and Plaintiff Jamie Ball‟s Opposition. See Dkt. No. 129. There were no objections to this joinder. 1 A. Decedent Anthony Carmignani Marin County Jail staff found Anthony Carmignani not breathing in his cell on July 30, 2 3 2011. Combined Statement of Facts2 (“CSF”), Dkt. No. 137, ¶ 46. Jail deputies and medical 4 personnel tried to resuscitate Carmignani, and he was transported to the hospital, where he was 5 later pronounced dead. CSF ¶¶ 47-48. His death certificate names his cause of death an 6 accidental mixed drug overdose. Id. ¶ 49. The day before, on July 29, 2011, Novato Police Officers had arrested Anthony 7 Carmignani and transported him to the Marin County Jail. Id. ¶ 9. Carmignani‟s mother, Plaintiff 9 Lynnette Frary, reported Carmignani for allegedly stealing prescription medication from her 10 home. Id. ¶ 5. Plaintiffs allege that during transit to the Jail, Carmignani retrieved some pills 11 United States District Court Northern District of California 8 from his pockets and ingested them. Id. ¶¶ 11, 12; Second Am. Compl. ¶¶ 9, 45, 47. Carmignani 12 arrived at the Jail at around 3:30 p.m. CSF ¶ 13. 13 Upon arrival, Jail staff searched Carmignani and found several pills in his pockets, 14 including one Embeda, an extended release morphine pill. Id. ¶ 14. Carmignani was then 15 examined by a booking nurse, Defendant Shannon Fetterly, who asked him if he had taken any 16 drugs. Id. ¶ 16. Carmignani told her that he had taken only two “street” morphine pills before he 17 was arrested. Id. ¶ 17. Nurse Fetterly kept Carmignani in the booking area for four hours. Id. 18 ¶ 18. During those four hours, she took his vital signs at least two times. Id. ¶ 19.3 Nurse Fetterly testified that “[Carmignani‟s] vitals were fine. . . . [H]e told me he was 19 20 feeling fine” but also noted that “he was worried about withdrawal, when he started coming off of 21 the medication, the morphine, that he was going to withdraw. He made that very well-known to 22 me.” Fiol Decl., Ex. 6 (Fetterly Dep.) 170:3-7, Dkt. No. 131-2. She also testified that she wrote 23 in his medical chart, “he just popped two morphine pills before he was arrested. Noticed change 24 2 25 26 The parties each submitted statements of undisputed facts, which Defendants combined in full at Dkt. No. 137. For clarity, the Court refers to this document rather than the parties‟ individual statements and identifies disputed facts where necessary. 3 27 28 Another Defendant Nurse, Susan Lesher, was responsible for reviewing Carmignani‟s medical chart and care plan at the Jail, but she never had any one-on-one interaction with Carmignani. Giacomini Brewer Decl., Ex. E (Lesher Dep.) 19:25-20-3; 47:9-13; 48:6-18; 63:2-9, Dkt. No. 1002; see also Fiol Decl., Ex. 11 (Lesher Dep.) 55:24-56:8, Dkt. No. 131-3. 2 1 in behavior, very drowsy, pupils pinpoint. States he is going to detox bad.” Id. at 154:8-23. 2 Nurse Fetterly documented that Carmignani‟s eyes “went from non-pinpoint to pinpoint in that 3 hour and a half period” between 4:00 and 5:30 p.m. and that he became “very drowsy.” Id. at 4 139:3-18. She found these observations significant at the time, noting that she was aware that he 5 was “definitely under the influence of something” and that these observations caused her to 6 believe “he needed to be observed in booking longer. He was not ready to go upstairs.” Id. at 7 145:1-8. 8 9 A few hours later, around 8:00 p.m., Nurse Fetterly released Carmignani for placement into the general jail population. CSF ¶¶ 23, 29. The jail staff placed Carmignani in Administrative Segregation (“Ad Seg”)—in a cell by himself—because his prior custodial history 11 United States District Court Northern District of California 10 indicated that he had gang affiliations as well as “keep away” orders from African Americans and 12 Hispanics. Id. ¶ 29. Carmignani‟s cell was equipped with an intercom. Id. ¶ 30. Nurse Fetterly 13 had advised Carmignani that he could use the intercom to get ahold of a nurse if he felt he needed 14 medical attention. Fetterly Dep. 23:13-16, Dkt. No. 100-3, Ex. F. Carmignani said that he 15 understood and that he just wanted to go to sleep. Id. at 23:16-17; CSF ¶ 23. 16 Ad Seg has two levels, with Cells 1-7 on the lower level. CSF ¶ 145; Fiol Decl., Ex. 10 17 (Johnson Dep.) 58:10-17; 71:1-2, Dkt. No. 131-3. Carmignani was housed on the lower level, in 18 Cell 1. CSF ¶ 162. The Ad Seg Deputy sat in the “tower” that was even with the upper, second 19 level of cells. Id. ¶ 146; Johnson Dep. 62:3-6. The deputy must remain in the tower at all times. 20 Johnson Dep. 95:12-20. There is also a movement relief deputy, or MRD, who moves in and out 21 of Ad Seg during the graveyard shift. Id. at 95:21-96:21. Deputy Johnson was the tower deputy 22 on July 29 and 30, 2011. Id. at 77:12-18. He placed Carmignani in Cell 1. CSF ¶ 162. 23 The inmate status report listed Carmignani as “high risk” and “unstable[,]” noting also 24 “obs. opiate detox.” See Johnson Dep., Ex. 4; Fetterly Dep. 186:4-17; 187:1-11. Nurse Fetterly 25 testified that she put in an entry “observe for opiate detox” and “[i]nformed custody about 26 morphine use prior to arrest.” Fetterly Dep. 154:14-15. Additionally, a “corrections entry” states: 27 “17:43 hours: Nurse Shannon Fenley told me that while she was doing the inmates intake inmate 28 admitted to her that he had taken two street morphine pills prior to coming to jail. He had pinpoint 3 1 eyes. Inmate stated that he will „crash hard.‟ Please monitor inmate.” Johnson Dep., Ex. 5 2 (spelling in original). The Jail used an electronic log in its computer system known as the “Beat Book,” which 3 4 deputies used to record “any notable event” that occurred in the Jail for each pod, including safety 5 checks. Dkt. No. 104, Hickey Decl. ¶ 4. The Beat Book shows that the majority of the safety 6 checks for Carmignani were “completed from the tower” or “from tower.” Hickey Decl., Ex. A. 7 According to Deputy Johnson, a safety check completed from the tower means that he did a visual 8 or a sound check of the inmate. Johnson Dep. 137:22-25; 89:4-12. The pod deputy could only 9 hear sounds in the cell if he pressed a button to activate the intercom and connect the guard tower to that cell; otherwise, the deputy cold not hear what was happening in the cell through the 11 United States District Court Northern District of California 10 intercom. Id. at 65:12-21; 90:5-16. Deputy Johnson testified that a visual check means peering 12 out the window of the tower. Id. at 89:10-12. He testified that he could see possibly a quarter of 13 Carmignani‟s cell-bed from the tower. Id. at 77:13-18; 79:2-8; 84:5-8. Ronald Martinelli, 14 Plaintiffs‟ expert witness, visited the jail, took pictures of the cell, and stated that no portion of the 15 bed could be viewed from the tower. Martinelli Decl. ¶ 374 & Ex. 2, Dkt. No. 131-5. At approximately 10:24 p.m., around seven hours after Carmignani arrived at the Jail, 16 17 Novato Police Officer Stephanie Commisto met with Carmignani to serve him with papers. CSF ¶ 18 31. Carmignani walked to the door of his cell as Officer Commisto passed him the paperwork 19 through his cell‟s food port. Id. ¶ 32. Carmignani did not face Officer Commisto as he read the 20 papers, and she never saw his eyes. Id. ¶ 34; Giacomini Brewer Decl., Ex. H (Commisto Dep.) 21 120:17-22; 122:20-25; Dkt. No. 101-2. Officer Commisto did not observe anything about 22 Carmignani that indicated he was having problems or in any medical distress. CSF ¶ 35. Officer 23 Commisto‟s visit with Carmignani was not indicated in a “Beat Book” entry. See Hickey Decl., 24 Ex. A. 25 4 26 27 28 Defendants objected to Martinelli‟s Declaration, including this paragraph, generally arguing that the declaration is based on speculation, statements without foundation, improper legal conclusions or opinions, and argumentative statements. This paragraph, however, is based on Martinelli‟s personal observations from his July 10, 2014 site visit. Nothing suggests that his observations in this paragraph would be inadmissible testimony; Defendants‟ objections to this paragraph are thus OVERRULED. Defendants did not object to the photographs in Exhibit 2. 4 The next morning, at approximately 5:30 a.m., Defendant Deputy Rachel Hammer and two 1 2 volunteer inmates attempted to serve Carmignani breakfast. CSF ¶ 39. Deputy Hammer asked 3 Carmignani if he wanted breakfast, but he did not respond. Fiol Decl., Ex. 7 (Hammer Dep.) 4 121:23-122:2, Dkt. No. 131-2. Deputy Hammer knocked on his cell door at least three or four 5 times and characterized these knocks as “hard.” CSF ¶¶ 40, 218; Hammer Dep. 122:3-21. The 6 knocks elicited no response from Carmignani other than snoring. Hammer Dep. 122:22-24. 7 Deputy Hammer testified that she elevated her voice to get Carmignani‟s attention, and even when 8 she yelled he did not respond. Id. at 145:22-146:4. Deputy Hammer also observed Carmignani‟s 9 chest rising and falling. CSF ¶ 42. His eyes stayed closed and she did not otherwise observe him move. Hammer Dep. 120:25-121:20. Trustee Diaz, one of the volunteer inmates who helped 11 United States District Court Northern District of California 10 Deputy Hammer serve breakfast, testified that Anthony‟s mouth was open and his eyes slightly 12 open and rolled back. Fiol Decl., Ex. 4 (Diaz Dep.) 69:20-70:12, Dkt. No. 131-2. Deputy Hammer was read a statement by Trustee Diaz, which said that Deputy Hammer 13 14 had called out to Carmignani for approximately one minute and that he remembered commenting 15 to Deputy Hammer that Carmignani “looks dead.” Hammer Dep. 134:24-135:9. Deputy Hammer 16 did not dispute the accuracy of this statement, instead stating that she does not remember. Id. at 17 135:15-20. Deputy Hammer reported to Deputy Johnson over her radio that Carmignani had 18 “refused” breakfast. Id. at 124:14-21; CSF ¶ 222. Deputy Hammer instructed the volunteer 19 inmates to remove the food tray. Diaz Dep. 73:11-13. At 8:40 a.m., jail staff observed Carmignani sleeping, with his chest rising and falling. 20 21 CSF ¶ 45. Deputy Thomas McCloskey took over the tower deputy position from Deputy Johnson 22 for the day-shift. Fiol Decl., Ex. 13 (McCloskey Dep.) 40:11-15, Dkt. No. 131-4. At approximately noon, Carmignani was found not breathing. CSF ¶ 46. Trustee Diaz had 23 24 observed Carmignani at lunch time and told the Deputy who was serving lunch that Carmignani 25 was in the same position he had been in six hours before. Diaz Dep. 74:13-76:7. Jail deputies and 26 medical personnel made efforts to resuscitate Carmignani. CSF ¶ 47. He was transported to the 27 hospital, where he was later pronounced dead. Id. ¶ 48. 28 // 5 1 B. The Plaintiffs Carmignani leaves behind his daughter, Amaya. Id. ¶ 52. She is represented in this action 2 3 by her mother, Jamie Ball. Dkt. No. 90 (Order appointing Jamie Ball as Amaya‟s Guardian ad 4 Litem). Carmignani‟s mother, Lynnette Frary, is also a plaintiff in this suit. The Alameda 5 Superior Court named Frary the administrator of Carmignani‟s estate. Dkt. No. 131-9. Frary does 6 not claim any loss of financial support from Carmignani. CSF ¶ 53. Plaintiff Heather Howard 7 was Carmignani‟s wife at the time of his death. Id. ¶ 1. 8 C. Marin County Jail The Marin County Jail Policy 11-21 outlines the duties of Lockdown deputies. Johnson 10 Dep. 49:19-50:25 & Ex. 1. Section 11-21 required Lockdown deputies to conduct “formal and 11 United States District Court Northern District of California 9 informal counts,” but contains no reference to hourly safety checks. Id., Ex. 1. Deputy Johnson 12 testified that he did not recall if there was a written procedure or policy for how safety checks 13 should be performed in the Jail, and he did not recall a written procedure as to how to perform 14 safety checks by a tower deputy. Johnson Dep. 88:3-89:3. He also testified that there was no 15 policy or procedure to vary the normal cell check routine in Ad Seg if an inmate housed there was 16 in detox for narcotics use. Id. at 92:6-24. The County‟s “person most knowledgeable” witness, 17 Sergeant James Hickey, testified that there was no policy or procedure at the Jail for how to 18 conduct hourly safety checks in Ad Seg. Hickey Dep. 40:17-20. He also agreed that the Jail‟s 19 policy and procedures manual did not address safety check requirements. Id. at 74:5-21. 20 Additionally, Sergeant Hickey testified that he was aware that deputies‟ use of “tower checks” had 21 been happening prior to 2011. Id. at 42:15-43:6. Sergeants reviewed the pod logs daily, including 22 logs that showed the deputies performing “tower checks.” Id. at 73:11-74:2. 23 Sergeant Hickey further testified that the deputies were not responsible for monitoring 24 medical needs; rather, the jail nurses are responsible for such monitoring. CSF ¶ 131. According 25 to Sergeant Hickey, there were no policies or procedures in 2011 requiring the Jail‟s medical staff 26 to alert the custodial staff as to medical concerns for prisoners entering the Jail‟s general 27 population. Hickey Dep. 36:2-10. There are also electronic files containing inmates‟ medical 28 information on the computer system available to the Jail deputies, but there is no policy or 6 1 procedure requiring them to review this information. Id. at 36:19-37:12. The Marin County Jail is biennially inspected by the Board of State and Community 2 3 Corrections (BSCC). See Ganter Decl. ¶¶ 8-9, Dkt. No. 102; Dkt. No. 102-1 & 2, Ex. A (2008- 4 2010 Report) and Dkt. No. 102-3, Ex. B (2010-2012 Report) (collectively, the “Biennial 5 Reports”).5 On April 15, 2009, the BSCC conducted a pre-inspection briefing with facility 6 managers and administrators. 2008-2010 Report at 1. The following month, on May 14, 2009, 7 BSCC inspected the jail and holding facility for compliance with physical plant and operational 8 requirements in the California Code of Regulations Titles 15 and 24, Minimum Standards for 9 Local Detention Facilities. Id. The inspection also included walking through both facilities, reviewing selected policies and supporting documentation, as well as interviewing staff. Id. After 11 United States District Court Northern District of California 10 completing its inspection, the BSCC issued an inspection report consisting of, among other things, 12 “procedures” checklists addressing applicable Title 15 sections. Id. at 2. The following is an 13 excerpt from the 2008-2010 Biennial Report (see id. at 8): 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiffs object to Defendants‟ submission of Allison Ganter‟s Declaration and the attached Reports on the grounds that (1) Defendants failed to disclose Ganter or the Reports in their initial disclosures, (2) the Reports are untrustworthy and inadmissible under Fed. R. Evid. 803(8), (3) Ganter did not properly authenticate the Reports, and (4) the Reports contain inadmissible legal conclusions. Dkt. No. 132. From Defendants‟ response, it appears that they did not disclose Ganter or the Reports in their initial disclosures, but it is also evident that they apprised Plaintiffs about the existence of these reports in response to Plaintiffs‟ request for production of documents and sent Plaintiffs the Reports in July 2013. Dkt. No. 138 at 4-7. There is no evidence of bad faith or willfulness by Defendants, and there is no evidence that Plaintiffs have been prejudiced by the submission of the Reports. Nor does the Court find the Reports incapable of authentication or otherwise inadmissible at this time. Plaintiffs‟ objection about the Reports‟ legal conclusions is noted, but the Court does not rely on them for such conclusions. Accordingly, there are no grounds for the excluding these Reports at this time. 7 1 2 3 4 Both Biennial Reports were sent to Sheriff Robert Doyle. 2008-2010 Report at 1; 20102012 Report at 1. LEGAL STANDARD Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 5 that there is “no genuine dispute as to any material fact and [that] the movant is entitled to 6 judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment 7 bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that 8 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 9 317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is 11 United States District Court Northern District of California 10 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 12 Where the moving party will have the burden of proof on an issue at trial, it must 13 affirmatively demonstrate that no reasonable trier of fact could find other than for the moving 14 party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where 15 the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by 16 pointing out to the district court that there is an absence of evidence to support the nonmoving 17 party‟s case. Celotex, 477 U.S. at 324-25. 18 If the moving party meets its initial burden, the opposing party must then set forth specific 19 facts showing that there is some genuine issue for trial in order to defeat the motion. Fed. R. Civ. 20 P. 56(e); Anderson, 477 U.S. at 250. It is not the task of the Court to scour the record in search of 21 a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court 22 “rel[ies] on the nonmoving party to identify with reasonable particularity the evidence that 23 precludes summary judgment.” Id.; see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 24 (9th Cir. 2010). Thus, “[t]he district court need not examine the entire file for evidence 25 establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with 26 adequate references so that it could conveniently be found.” Carmen v. San Francisco Unified 27 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to make this 28 showing, “the moving party is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323 8 1 (internal quotations omitted). DISCUSSION 2 3 Plaintiffs bring claims under 42 U.S.C. § 1983 against the County of Marin, jail staff, and 4 Sheriff Doyle for violations of Carmignani‟s constitutional rights, as well as state law negligence 5 claims against Nurses Fetterly and Lesher. In Parts A-C of this Order, the Court considers 6 Defendants‟ challenges to Plaintiffs‟ constitutional claims against (A) jail staff (B) Sheriff Doyle, 7 and (C) the County of Marin in its municipal capacity. In Parts D-E, the Court considers 8 Defendants‟ challenges to Plaintiffs‟ state law claims. 9 A. 10 Plaintiffs’ Section 1983 Claim – Deputy Defendants “Section 1983 „is not itself a source of substantive rights,‟ but merely provides „a method United States District Court Northern District of California 11 for vindicating federal rights elsewhere conferred.‟” Albright v. Oliver, 510 U.S. 266, 271 (1994) 12 (citation omitted). Thus, to prevail on a Section 1983 claim, a plaintiff must show: (1) the 13 deprivation of any rights, privileges, or immunities secured by the Constitution; (2) by a person 14 acting under the color of state law. 42 U.S.C. § 1983. There is no dispute that the deputy 15 Defendants acted under the color of law; thus, the issue is whether their conduct deprived 16 Carmignani of his constitutional rights. 17 Plaintiffs allege that Marin County, the Jail deputies, and Sheriff Doyle violated 18 Carmignani‟s constitutional rights through deliberate indifference and callous disregard for his 19 serious medical needs while in custody of the Jail. As Carmignani was a detainee, not yet charged 20 or convicted of a crime, Plaintiffs‟ claims for failure to provide care for his serious medical needs 21 are analyzed under the substantive due process clause of the Fourteenth Amendment. Lolli v. 22 Cnty. of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). While a detainee‟s rights arise under the 23 Due Process Clause of the Fourteenth Amendment, the guarantees of the Eighth Amendment 24 guide courts and provide a minimum standard of care for determining detainees‟ rights, including 25 the right to medical care. Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003). 26 The Fourteenth Amendment “imposes, at a minimum, the same duty the Eighth Amendment 27 imposes: persons in custody have the established right to not have officials remain deliberately 28 indifferent to their serious medical needs.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th 9 1 Cir. 2002) (citation omitted). 2 1. Legal Standards: Deliberate Indifference & Qualified Immunity 3 An official may be held liable under Section 1983 if he or she was “deliberately 4 indifferent” to a serious medical need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). To 5 prove this claim, a plaintiff must show that he was: (1) confined under conditions posing a 6 “substantial risk of serious harm,” and (2) that the officials were deliberately indifferent to that 7 risk. Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1244 (9th Cir. 2010) (citing Lolli, 351 8 F.3d at 420). “Deliberate indifference” has both subjective and objective components. Labatad v. 9 Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). A prison official must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and 11 United States District Court Northern District of California 10 . . . must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Liability may 12 follow only if a prison official “knows that inmates face a substantial risk of serious harm and 13 disregards that risk by failing to take reasonable measures to abate it.” Labatad, 714 F.3d at 1160 14 (quoting Farmer, 511 U.S. at 847); see also Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) 15 (“Deliberate indifference may be reflected through either action or inaction such as denial, delay, 16 or intentional interference with medical treatment.”). 17 “The doctrine of qualified immunity protects government officials „from liability for civil 18 damages insofar as their conduct does not violate clearly established statutory or constitutional 19 rights of which a reasonable person would have known.‟” Mattos v. Agarano, 661 F.3d 433, 440 20 (9th Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009); additional citation 21 omitted)). “Qualified immunity shields an officer from liability even if his or her action resulted 22 from a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” 23 Id. (citation and quotation marks omitted). “The purpose of qualified immunity is to strike a 24 balance between the competing need to hold public officials accountable when they exercise 25 power irresponsibly and the need to shield officials from harassment, distraction, and liability 26 when they perform their duties reasonably.” Id. (citation and quotation marks omitted). 27 28 In determining whether an official is entitled to qualified immunity, courts employ a twopronged inquiry: first, did the officer violate the plaintiff‟s constitutional right; if the answer to 10 1 that question is “yes,” courts must then determine whether the constitutional right was “clearly 2 established in light of the specific context of the case” at the time of the events in question. Id. 3 (citing Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) and Saucier v. Katz, 533 U.S. 194, 201 4 (2001)). Courts are “permitted to exercise their sound discretion in deciding which of the two 5 prongs of the qualified immunity analysis should be addressed first in light of the circumstances in 6 the particular case at hand.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014) (citation 7 omitted), cert. denied, 135 S.Ct. 455 (2014). 8 “For the second step in the qualified immunity analysis—whether the constitutional right was clearly established at the time of the conduct—the critical question is whether the contours of 10 the right were „sufficiently clear‟ that every „reasonable official would have understood that what 11 United States District Court Northern District of California 9 he is doing violates that right.‟” Mattos, 661 F.3d at 442 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 12 2074, 2083 (2011); some internal marks omitted). “The plaintiff bears the burden to show that the 13 contours of the right were clearly established.” Clairmont v. Sound Mental Health, 632 F.3d 14 1091, 1109 (9th Cir. 2011). “[W]hether the law was clearly established must be undertaken in 15 light of the specific context of the case[.]” Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 16 1050 (9th Cir. 2002) (citation and internal marks omitted). In making this determination, courts 17 consider the state of the law at the time of the alleged violation and the information possessed by 18 the official to determine whether a reasonable official in a particular factual situation should have 19 been on notice that his or her conduct was illegal. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 20 2007); Hope v. Pelzer, 536 U.S. 730, 741 (2002) (the “salient question” to the qualified immunity 21 analysis is whether the state of the law at the time gave “fair warning” to the officials that their 22 conduct was unconstitutional). “[W]here there is no case directly on point, „existing precedent 23 must have placed the statutory or constitutional question beyond debate.‟” C.B. v. City of Sonora, 24 769 F.3d 1005, 1026 (9th Cir. 2014) (citing al-Kidd, 131 S.Ct. at 2083). An official‟s subjective 25 beliefs are irrelevant. Inouye, 504 F.3d at 712. 26 2. 27 Plaintiffs assert that Deputies Johnson, McCloskey, and Hammer, as well as Nurse 28 Application to the Case at Bar Fetterly, violated Carmignani‟s Fourteenth Amendment rights by acting with deliberate 11 1 indifference to his serious medical need. The dispute centers on whether Defendants knew of this 2 need; Defendants argue that none of the individual Defendants had the requisite knowledge. 3 4 a. Deputy Johnson Defendants argue that “Plaintiffs‟ own claim of purported lapses in communication 5 between the medical staff and deputies illustrates that [the deputies] were not deliberately 6 indifferent to Decedent‟s claimed serious medical condition as they remained unaware of 7 Decedent‟s allegedly serious medical condition.” Reply at 10. But this does not necessarily hold 8 true for Deputy Johnson. Deputy Johnson recalled seeing a nurse‟s statement, which he identified 9 as the corrections entry that noted “Inmate stated that he will „crash hard.‟ Please monitor inmate.” Johnson Dep. 106:18; Ex. 5. Additionally, Deputy Johnson acknowledged he was aware 11 United States District Court Northern District of California 10 that Carmignani had drugs in his possession when he came to jail and that Novato Police came to 12 visit Carmignani about stealing medications; Deputy Johnson also testified that he knew arrestees 13 often try to dispose of incriminating evidence by ingesting it. Id. at 117:6-9; 116:11-117:13. 14 On summary judgment, the Court must view the evidence in the light most favorable to the 15 non-moving party—in this case, the Plaintiffs. See Anderson, 477 U.S. at 255. Under that 16 standard, a reasonable jury could find that Deputy Johnson was aware of the substantial risk to 17 Carmignani and, despite the warning in the jail entry and his knowledge of Carmignani‟s drug 18 possession, “failed adequately to respond” by providing Carmignani with additional or closer 19 monitoring. Lemire v. Cal. Dep’t of Corrs. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013). 20 While Deputy Johnson may have conducted regular checks from the Tower, a jury could find that 21 these checks were inadequate and resulted in the delay or denial of his medical treatment. Among 22 other things, there is conflicting evidence whether (1) Deputy Johnson could have seen 23 Carmignani or his bed from the Tower (see, e.g., Johnson Dep. 36:22-37:5; 77:13-18; 79:2-8; 24 84:5-8; 175:13-20; 182:1-8; Martinelli Decl. ¶ 37), and (2) whether listening in to Carmignani‟s 25 cell via the intercom could have in fact detected the sounds of breathing. See, e.g., Johnson Dep. 26 90:5-16; Fiol Decl., Ex. 1 (Begault Dep.) 13:24-14:4; 49:25-50:6; 63:18-64:20; 66:5-25; Dkt. No. 27 131-2. Additionally, Deputy Johnson could have called an MRD to check on Carmignani at any 28 time, but he never did so. Although a jury could ultimately find Deputy Johnson‟s actions 12 1 reasonable under the circumstances, the Court cannot make that determination on summary 2 judgment in the face of conflicting evidence. Plaintiffs‟ evidence establishes a genuine dispute of 3 material fact as to whether Deputy Johnson was indeed aware of a substantial risk to Carmignani 4 and then disregarded that risk by failing to take reasonable measures to abate it by, for instance, 5 more closely and regularly monitoring Carmignani. 6 Where the evidence indicates a constitutional violation, the Court proceeds to the second 7 tier of the immunity analysis. Estate of Ford, 301 F.3d at 1049. The second tier in the immunity 8 analysis is “whether the right was clearly established,” which is an objective but fact-specific 9 inquiry. Inouye, 504 F.3d at 712. Here, Plaintiffs argue that Deputy Johnson is not entitled to qualified immunity because his conduct violated Title 15, section 1027 of the California Code of 11 United States District Court Northern District of California 10 Regulations, which they assert codifies inmates‟ constitutional rights. Section 1027 requires that 12 “a sufficient number of personnel shall be employed in each local detention facility to conduct at 13 least hourly safety checks of inmates through direct visual observation of all inmates.” Cal. Code 14 Regs. tit. 15, § 1027. The code defines “safety checks” as “direct, visual observation . . . to 15 provide for the health and welfare of inmates.” Id. § 1006. Plaintiffs contend that a reasonable 16 jail official in Deputy Johnson‟s position would have known that he was required to conduct 17 hourly direct, visual observations of inmates under section 1027. According to Plaintiffs‟ expert 18 witness, Ronald Martinelli, a former director of a California Commission on Peace Officer 19 Standards & Training (POST) police and corrections academy, “[t]he necessity for the 20 performance of hourly safety checks is part of the most basic CA - POST training taught to cadets 21 in California‟s police academies prior to their qualification to serve in entry level positions as 22 custodial officers in jails and prisons throughout the state.” Martinelli Decl. ¶ 70. As Deputy 23 Johnson did not conduct such checks, Plaintiffs contend his actions were unlawful. 24 Assuming for the sake of argument that section 1027 accurately represents the contours of 25 an inmate‟s constitutional rights, Defendants have shown that a reasonable official in Deputy 26 Johnson‟s position could “reasonably believe[] that [he was] in compliance with all sections of 27 Title 15 including section 1027 based on the fact that [the Jail] passed the BSCC‟s biennial 28 inspections which specifically looked for violations as to section 1027.” Reply at 11. Plaintiffs do 13 1 not dispute that the BSCC‟s Biennial Reports confirmed that the Jail‟s safety checks were 2 complaint with section 1027.6 Although Plaintiffs point out that BSCC did not issue a report in 3 the year of Carmignani‟s death, they have not shown that Defendants acted differently on days in 4 question compared with the dates on which the BSCC inspections took place. In fact, Plaintiffs 5 agree that the allegedly inadequate “safety checks” were happening in the same way for years 6 prior to Carmignani‟s death. See Opp‟n at 9. Thus, even if Deputy Johnson received training on 7 how to conduct safety checks under section 1027, this evidence in the face of the BSCC 8 inspections reveals at most an open legal question on how to conduct safety checks under section 9 1027, and “qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions[.]” Padilla v. Yoo, 678 F.3d 748, 758 (9th Cir. 11 United States District Court Northern District of California 10 2012). But this is not the end of the inquiry. First, section 1027 does not describe how often an 12 13 inmate should be monitored in light of an identified medical need, and neither did the BSCC 14 Report at the time. While “the existence of a statute or ordinance authorizing particular conduct is 15 a factor which militates in favor of the conclusion that a reasonable official would find that 16 conduct constitutional,” Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994), here 17 neither section 1027 nor the BSCC Report explains how to treat inmates with a medical need or 18 otherwise clearly justify Deputy Johnson‟s conduct in this case. Second, the fact that the 19 requirements of section 1027 may not be clearly established in the context of this case does not 20 mean that, overall, the state of the law at the time did not otherwise give Deputy Johnson “fair 21 warning” that his conduct was unconstitutional. See id. (“Where [an ordinance] authorizes official 22 conduct which is patently violative of fundamental constitutional principles, an officer who 23 enforces that statute is not entitled to qualified immunity.”). In other words, the “legal question” 24 here is not whether section 1027‟s requirements are clearly established but whether the 25 Constitution‟s requirements are clearly established. 26 6 27 28 Plaintiffs maintain elsewhere that the Biennial Reports are flawed and did not accurately analyze the Jail‟s actual policies and practices in accordance with Title 15, section 1027. This, however, does not mean a reasonable officer would have known the Report to be flawed or known that acting in accordance with the procedures apparently validated by the BSCC meant that his actions violated section 1027. 14 1 The “general law regarding the medical treatment of prisoners was clearly established” well before Carmignani was placed custody in 2011. See Clement v. Gomez, 298 F.3d 898, 906 3 (9th Cir. 2002) (citation omitted). Specifically, before 2011, it was “clearly established that 4 officers could not intentionally deny or delay access to medical care.” Id. (citing Estelle v. 5 Gamble, 429 U.S. 97, 104-05 (1976)); see also Wereb v. Maui Cnty., 727 F. Supp. 2d 898, 916-18 6 (D. Haw. 2010) on reconsideration in part on other grounds, 830 F. Supp. 2d 1026 (D. Haw. 7 2011) (finding potential constitutional violations and qualified immunity unavailable to jail staff in 8 similar circumstances); Ringuette v. City of Fall River, 888 F. Supp. 258, 269-70 (D. Mass. 1995) 9 (finding qualified immunity “intertwined with the correlative jury question[,]” and “hing[ing] on 10 material issues of relevant fact that remain in dispute: the extent of the monitoring, the reasons for 11 United States District Court Northern District of California 2 failure to monitor, whether and when [plaintiff] declined food and water, his appearance during 12 the monitoring, etc.”). 13 While Plaintiffs did not provide case law on point, viewing the facts in the light most 14 favorable to them, a reasonable jury could find that Deputy Johnson‟s failure to take any action to 15 respond to the increased risk to Carmignani‟s health caused the delay or denial of medical care to 16 Carmignani. Specifically, rather than taking additional steps to ensure that Carmignani was 17 monitored, Plaintiffs‟ evidence suggests that Deputy Johnson conducted only his typical tower 18 checks, which—at most—allowed Deputy Johnson to only see a quarter of Carmignani‟s bed from 19 a considerable distance. Although Deputy Johnson testified that there was no Jail procedure or 20 policy for increased monitoring of inmates with medical needs in Ad Seg (Johnson Dep. 92:6-24), 21 the lack of such a policy or procedure does not make Deputy Johnson‟s conduct reasonable. A 22 reasonable official in Deputy Johnson‟s position would have understood that placing an inmate 23 with a perceived medical need in a cell where the inmate cannot be seen, and then not taking any 24 other precautions to monitor or observe that inmate, is not taking reasonable measures to abate the 25 risk to that inmate and effectively causes the delay or denial of medical care. At the time 26 Carmignani was under Deputy Johnson‟s care and custody, viewing the facts in the light most 27 favorable to the Plaintiffs, a “reasonable official would have understood that what he is doing 28 violates” Carmignani‟s right not to have his medical needs treated with deliberate indifference. 15 1 Mattos, 661 F.3d at 442 (quoting al-Kidd, 131 S. Ct. at 2083). Accordingly, Deputy Johnson is 2 not entitled to qualified immunity, and Defendants‟ Motion for Summary Judgment on Plaintiffs‟ 3 Section 1983 claim against Deputy Johnson is DENIED. 4 5 b. Deputy McCloskey There is no evidence that Deputy McCloskey knew of any risk to Carmignani such that his 6 subsequent actions could be found to have been made with a sufficiently culpable state of mind. 7 There is no indication that any other jail officials ever reported any of their observations to Deputy 8 McCloskey or otherwise openly expressed their belief to him that Carmignani was in need of 9 medical assistance. Plaintiffs‟ own statement of fact admits as much. See CSF ¶ 129 (“Deputy McCloskey . . . was not aware that Mr. Carmignani‟s[sic] has been observed for opiate 11 United States District Court Northern District of California 10 detoxification or withdrawal. . . . He was not aware of any of the things that the medical staff 12 knew about Mr. Carmignani: including his admitting to taking opiates . . . his presentation with 13 pinpoint eyes, his expressed expectation that he would „crash hard,‟ or his request for assurance 14 that his cell would have a working intercom.”). Nor is there evidence showing that Deputy 15 McCloskey was made aware of Carmignani‟s condition through any other means. See McCloskey 16 Dep. 66:19-67:7; 68-2-6. While Plaintiffs argue that Deputy McCloskey, like Deputy Johnson, 17 failed to conduct direct, visual safety checks as required by Title 15, section 1027, Plaintiffs have 18 not shown that Deputy McCloskey was subjectively aware of Carmignani‟s medical need or any 19 substantial risk to him such that the checks Deputy McCloskey conducted could be found to be 20 evidence of deliberate indifference. 21 Plaintiffs further assert that Deputy McCloskey could have looked at Carmignani‟s inmate 22 records on the computer to know of his medical need, but this evidence shows only that Deputy 23 McCloskey should have been aware of Carmignani‟s medical need, not that he in fact was aware 24 of such a need. See Farmer, 511 U.S. at 838 (“[A]n official‟s failure to alleviate a significant risk 25 that he should have perceived but did not, while no cause for commendation, cannot under our 26 cases be condemned as the infliction of punishment.”); see also Dean v. City of Fresno, 546 F. 27 Supp. 2d 798, 813 (E.D. Cal. 2008) (officers did not violate decedent‟s right to medical care where 28 evidence suggested they should have suspected decedent had swallowed cocaine but the evidence 16 1 was not strong enough not support a finding that the officers actually knew this event occurred); 2 Wereb, 727 F. Supp. 2d at 913 (“Individual Defendants‟ subjective knowledge that [the decedent] 3 could have been monitored more closely or more thoroughly is not commensurate with subjective 4 knowledge that [the decedent] faced a substantial risk due to a lack of close or thorough 5 monitoring.”). Accordingly, Defendants‟ Motion for Summary Judgment on Plaintiffs‟ Section 6 1983 claim against Deputy McCloskey is GRANTED. 7 8 c. Deputy Hammer While there is no evidence that Deputy Hammer knew Carmignani had ingested illegal drugs or was predisposed to any other medical need, there is a genuine dispute of material fact as 10 to whether she was aware of Carmignani‟s serious medical need when she encountered him on the 11 United States District Court Northern District of California 9 morning of his death. Deputy Hammer testified that she tried to wake Carmignani, asking him if 12 he wanted breakfast, but he did not respond. Hammer Dep. 121:23-122:2. She testified that she 13 tried talking to him, but he did not respond except for snoring; his eyes stayed closed, and she did 14 not observe him move. Id. at 120:8-13; 120:25-121:20. Deputy Hammer also testified that she 15 elevated her voice to get Carmignani‟s attention; even when she yelled, he did not respond. Id. at 16 145:22-146:4. She also knocked on the window of Carmignani‟s cell, knocking three or four 17 times and characterizing her knock as “hard.” Id. at 122:3-21. The knocks elicited no response 18 from Carmignani other than perhaps snoring. Id. at 122:22-24. At her deposition, Deputy 19 Hammer was read a statement made by Trustee Diaz, which stated that Deputy Hammer had 20 called out to Carmignani for approximately one minute and that Trustee Diaz remembered 21 commenting to Deputy Hammer that Carmignani “looks dead.” Id. at 134:24-135:9. Deputy 22 Hammer did not dispute this statement but instead stated that she does not remember. Id. at 23 135:15-20. Deputy Hammer also reported to the Deputy Johnson over her radio that Carmignani 24 had “refused” breakfast. Id. at 124:14-21. Deputy Hammer instructed the trustees to remove the 25 food tray from the access slot and move on. Diaz Dep. 73:11-13. 26 There is a genuine dispute of material fact as to whether Deputy Hammer acted with 27 deliberate indifference to Carmignani‟s serious medical need. A medical need is serious “if the 28 failure to treat the [detainee‟s] condition could result in further significant injury or the 17 1 unnecessary and wanton infliction of pain.” Jett, 439 F.3d at 1096. There is evidence that Deputy 2 Hammer was aware that Carmignani‟s failure to respond could give rise to knowledge of a serious 3 medical need. Another jail deputy, Anthony Thune, testified that “we were taught if we have a 4 person that cannot respond to you, that will not wake up, we‟re going to call for medical and 5 provide whatever assistance we can until they get there, and then assist medical with whatever 6 assistance they need. Q. []: That‟s something you were taught here at the jail? A. Yes.” Thune 7 Dep. 29:15-23, Dkt. No. 186, Ex. 1. Deputy Johnson likewise agreed that when he worked in 8 Deputy Hammer‟s position, when an inmate does not get up to accept the meal, his training and 9 practice is to obtain an “audible declination or gesture” that the prisoner does not want his meal. Johnson Dep. 186:4-187:4. Here, Deputy Hammer yelled and knocked hard on Carmignani‟s door 11 United States District Court Northern District of California 10 but received no response from him other than perhaps a snore. Then, when Deputy Hammer 12 radioed Deputy Johnson, she indicated that Carmignani had “refused” food, rather than telling 13 Deputy Johnson that Carmignani did not wake despite her repeated attempts to awaken him. 14 A reasonable jury could find that Deputy Hammer acted with deliberate indifference by 15 denying, delaying, and interfering with Carmignani‟s medical treatment when she failed to 16 ascertain the circumstances of his prolonged unconsciousness as well as when she radioed Deputy 17 Johnson falsely suggesting that Carmignani had consciously “refused” breakfast. There is also a 18 triable issue of fact as to whether Deputy Hammer observed Carmignani‟s physical state as 19 described by Trustee Diaz. Based on the evidence presented, a reasonable juror could conclude 20 that Deputy Hammer “kn[ew] of and disregard[ed] an excessive risk to [Carmignani‟s] health or 21 safety” and that she was “both . . . aware of facts from which the inference could be drawn that a 22 substantial risk of serious harm exist[ed], and . . . also dr[e]w the inference.” Farmer, 511 U.S. at 23 837. Thus, summary judgment is inappropriate on this ground. 24 Likewise, the Court cannot find that Deputy Hammer is entitled to qualified immunity. 25 Before Carmignani‟s death in 2011, it was “clearly established that officers could not intentionally 26 deny or delay access to medical care.” Clement, 298 F.3d at 906. Viewing the facts in the light 27 most favorable to the Plaintiffs, a reasonable jury could find that Deputy Hammer failed to take 28 any action at all to respond to Carmignani‟s obvious medical need when he was unresponsive to 18 1 her forceful attempts to wake him and in light of his physical condition as described by Trustee 2 Diaz. On these facts, it would be clear to a reasonable official in Deputy Hammer‟s position that 3 her actions were “unlawful in the situation [s]he confronted.” Estate of Ford, 301 F.3d at 1050 4 (quotation omitted). A “reasonable official” in Deputy Hammer‟s position would have understood 5 that her actions violated Carmignani‟s right not to have his medical need treated with deliberate 6 indifference. Mattos, 661 F.3d at 442 (quoting al-Kidd, 131 S. Ct. at 2083). Accordingly, Deputy 7 Hammer is not entitled to qualified immunity and summary judgment on this claim is DENIED. 8 9 d. Nurse Fetterly Plaintiffs‟ operative Complaint does not include a Section 1983 claim against either Nurse Fetterly or Nurse Lesher. See generally Second. Am. Compl. However, Plaintiffs‟ opposition 11 United States District Court Northern District of California 10 brief argued the merits of those claims as if they had, and Defendants did not recognize Plaintiffs‟ 12 oversight in their briefing. Apparently neither party recognized this defect until the Court raised 13 the issue at the hearing. Now Plaintiffs have filed an official motion for leave to amend their 14 complaint (for a third time)—but only for Nurse Fetterly; they have apparently decided to forgo 15 their previously argued constitutional claims against Nurse Lesher. See Dkt. No. 180. 16 Meanwhile, Defendants adamantly oppose Plaintiffs‟ motion to amend despite already mounting a 17 defense on Nurse Fetterly‟s behalf. Dkt. No. 182. 18 The Ninth Circuit has recently reiterated that “when issues are raised in opposition to a 19 motion to summary judgment that are outside the scope of the complaint, „the district court should 20 . . . construe[] the matter raised as a request pursuant to rule 15(b) of the Federal Rules of Civil 21 Procedure to amend the pleadings out of time.‟” Desertrain v. City of Los Angeles, 754 F.3d 22 1147, 1154 (9th Cir. 2014) (quoting Apache Survival Coal. v. United States, 21 F.3d 895, 910 (9th 23 Cir. 1994); internal marks omitted)). “Five factors are taken into account to assess the propriety of 24 a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of 25 amendment, and whether the plaintiff has previously amended the complaint.” Id. “The court 26 should freely permit an amendment when doing so will aid in presenting the merits and the 27 objecting party fails to satisfy the court that the evidence would prejudice that party‟s action or 28 defense on the merits.” Fed. R. Civ. P. 15(b)(1). 19 1 Here, as noted, both sides apparently were under the misconception that the constitutional claims had already been asserted against Nurse Fetterly. The Defendants and Plaintiffs fully 3 argued the issues related to the constitutional claims against the individual jail staff, and 4 Defendants have not otherwise shown how they have been or could be prejudiced by permitting 5 constitutional claims against Nurse Fetterly. See Reply at 11 (specifically arguing that Nurse 6 Fetterly is entitled to qualified immunity as a defense to Plaintiffs‟ section 1983 claim). Thus 7 Defendants‟ objections do not satisfy the Court that the addition of Nurse Fetterly would prejudice 8 their defense. See Desertrain, 754 F.3d at 1155 (finding “unpersuasive” any claim of surprise or 9 prejudice by defendants where both parties fully argued claim at issue in their summary judgment 10 briefings); see also Feduniak v. Old Republic Nat’l Title Co., 2014 WL 6603253, at *5 (N.D. Cal. 11 United States District Court Northern District of California 2 Nov. 20, 2014) (granting leave to amend where both parties apparently understood the complaint 12 to assert the disputed theories and considering those theories on summary judgment). 13 Nor is there evidence of bad faith or undue delay. While Plaintiffs‟ overall tardiness in 14 seeking to amend is certainly not commendable, the Court agrees that Plaintiffs moved reasonably 15 promptly to amend when they were apprised of the inconsistency in their Complaint and 16 opposition brief. Although Plaintiffs have had the opportunity to amend their Complaint before, 17 as discussed, it appears that both parties were under the misconception that the constitutional 18 claims had already been asserted. Having considered the pertinent factors, the Court will thus 19 construe Plaintiffs‟ argument against Nurse Fetterly on the merits, conforming to the evidence and 20 arguments raised at this time. 21 The Court finds there is a question of fact about what Nurse Fetterly believed the risk to 22 Carmignani to be and whether she acted with deliberate indifference to that risk. Nurse Fetterly 23 was aware that Carmignani was “definitely under the influence of something[,]” and these 24 observations caused her to believe “he needed to be observed in booking longer. He was not ready 25 to go upstairs.” Fetterly Dep. 145:1-8. This indicates both her awareness of the risk to 26 Carmignani and her understanding that such a risk was better confronted at the nursing station. 27 Nurse Fetterly also listed Carmignani as “high risk” and “unstable” in the inmate status report and 28 indicated that he should be observed for opiate detoxification. Johnson Dep., Ex. 4; Fetterly Dep. 20 1 186:4-17; 187:1-11. The corrections entry further indicates that she communicated to another jail 2 official that Carmignani had taken street morphine pills, that he stated he would “crash hard,” and 3 to “Please monitor inmate.” See Johnson Dep., Ex. 5. 4 This evidence suggests that Nurse Fetterly identified Carmignani as high risk and 5 understood that there was enough of a risk to Carmignani‟s safety to warrant additional 6 precautionary measures. This is different from cases where the official had no knowledge of the 7 critical facts giving rise to the detainee‟s serious medical need. Cf. Toguchi v. Chung, 391 F.3d 8 1051, 1060 (9th Cir. 2004) (no deliberate indifference where prison doctor administered 9 prescription drugs causing inmate‟s fatal overdose where doctor had no knowledge that inmate had already ingested large amounts of contraband prescription drugs). Here, Nurse Fetterly knew 11 United States District Court Northern District of California 10 that Carmignani had ingested street morphine pills and admitted that Carmignani made it “very 12 well-known” to her that he was worried about his health and had concerns about that he would 13 “crash hard” and “detox bad.” 14 Taking the facts in the light most favorable to Plaintiffs, a reasonable jury could find that 15 Nurse Fetterly recognized a serious risk to Carmignani and then failed to take reasonable 16 precautionary steps to protect Carmignani from that risk. Deliberate indifference may be shown 17 through inaction and through withholding medical treatment. See Lolli, 351 F.3d at 419; Hallett, 18 296 F.3d at 744. A reasonable jury could find that Nurse Fetterly acted with deliberate 19 indifference when she allowed Carmignani to go into the Jail‟s general population prior to when 20 Carmignani began to “crash hard” or “detox bad” as he made “very-well known” to her that he 21 would or by failing to take action to ensure that Carmignani was consistently monitored. 22 Likewise, a reasonable jury could find that it was not reasonable to expect Carmignani to self- 23 monitor for adverse drug reactions and, in such an event, seek help via an intercom. Based on the 24 evidence presented, a reasonable juror could conclude that Nurse Fetterly “kn[ew] of and 25 disregard[ed] an excessive risk to [Carmignani‟s] health or safety” by failing to take reasonable 26 measures to abate that risk. Farmer, 511 U.S. at 837. On the other hand, a jury could find that 27 Nurse Fetterly did not realize the extent of the risk Carmignani faced, as he apparently kept from 28 her the extent of his drug usage; thus, as a jury could find that she took objectively reasonable 21 1 measures to abate the risk she perceived by, among other things, checking Carmignani‟s vital 2 signs and keeping him for monitoring for approximately four hours. On summary judgment, the Court must take the facts in the light most favorable to the non- 3 4 moving party. While the resolution of the factual issues in this case may well relieve Nurse 5 Fetterly of liability, if Plaintiffs‟ version of the facts were to prevail, a reasonable jury might well 6 conclude that she was deliberately indifferent to Carmignani‟s serious medical needs. As it is 7 “clearly established that officers [can] not intentionally deny or delay access to medical care,” 8 Clement, 298 F.3d at 906, Nurse Fetterly is not presently entitled to qualified immunity on this 9 claim. Defendants‟ motion for summary judgment is therefore DENIED on Plaintiffs‟ Section 1983 claim against Nurse Fetterly. 11 United States District Court Northern District of California 10 B. 12 Section 1983 Claim - Supervisor Liability Supervisory officials “may not be held liable for the unconstitutional conduct of their 13 subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 14 The term supervisory liability is therefore something of a “misnomer” because “[e]ach 15 Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” 16 Id. at 677; see also Lemire, 726 F.3d at 1074-75 (“Vicarious liability may not be imposed on a 17 supervisor for the acts of lower officials in a section 1983 action.”). Supervisory officials “cannot 18 be held liable unless they themselves” violated a constitutional right. Iqbal, 556 U.S. at 683. 19 However, a supervisor may still be held liable for under section 1983 upon a showing of 20 either “(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 21 causal connection between the supervisor‟s wrongful conduct and the constitutional violation.” 22 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); see also Taylor v. List, 880 F.2d 1040, 1045 23 (9th Cir. 1989) (“A supervisor is only liable for constitutional violations of his subordinates if [he] 24 . . . directed the violations, or knew of the violations and failed to act to prevent them.”). The 25 requisite causal connection may be proved by (i) the supervisor‟s “own culpable action or inaction 26 in the training, supervision, or control of subordinates;” (ii) his “acquiescence in the constitutional 27 deprivation of which a complaint is made;” or (iii) “conduct that showed a reckless or callous 28 indifference to the rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000). 22 1 Plaintiffs provide little explanation about their theory of supervisory liability against 2 Sheriff Doyle, but argue that “Sheriff Doyle‟s legal duties are clear, and the multiple failures of his 3 department to enact, train to [sic] and enforce necessary and state-mandated policies and 4 procedures must be placed squarely on his doorstep.” Opp‟n at 12. Defendants contend that 5 Plaintiffs have failed to provide facts supporting these claims and also argue that Sheriff Doyle is 6 entitled to qualified immunity. Mot. at 14-15; Reply at 8-9. 7 There is no evidence that Sheriff Doyle personally participated in any of his subordinates‟ 8 potential deliberate indifference to Carmignani; Sheriff Doyle was not present during the events in 9 question. Additionally, Defendants argue there is no evidence Sheriff Doyle was responsible for any unconstitutional customs, policies, practices, and procedures giving rise to such deliberate 11 United States District Court Northern District of California 10 indifference as alleged in Plaintiffs‟ Complaint. They argue Sheriff Doyle was not in fact 12 responsible for creating, evaluating, and modifying jail policies/procedures. Giacomini Brewer, 13 Ex. N (Hickey Dep.) 20:19-22:1; 26:6-8, Dkt. No. 101-3. Rather, they assert that the jail captain 14 is primarily responsible for implementation of policy at Marin County Jail. Id. at 30:9-11; Hickey 15 Decl. ¶ 5. 16 In response, Plaintiffs argue that the responsibility for adopting and enforcing jail policies 17 and procedures is assigned by Title 15, section 1029, which defines “Facility Administrators” as 18 “the sheriff, chief of police, chief probation officer, or other official charged by law with the 19 administration of a local detention facility/system.” See Cal. Code Regs. tit. 15, § 1029 (emphasis 20 added). The critical word in section 1029‟s definition is “or”—the provision does not say the 21 Sheriff must be the Facility Administrator. Additionally, Plaintiffs present Marin County Sheriff‟s 22 Departmental Policies, Policy 1-2, which states that the Sheriff is the “Overall administrator of the 23 Sheriff‟s Department, charged by law with the administration of local detention facilities in Marin 24 County.” Martinelli Decl., Ex. 4. The problem is that neither party provided evidence about 25 Sheriff Doyle‟s actual duties or whether he actually functioned as the jail administrator. 26 As the limited evidence available to the Court is conflicting, summary judgment is 27 inappropriate at this time. There remains a material dispute as to Sheriff Doyle‟s actions or 28 inactions, and whether any of those actions could constitute a constitutional violation. Qualified 23 1 immunity is likewise unavailable as the Court cannot determine at this point what if any actions 2 Sheriff Doyle took in order to assess whether it would be clear to a reasonable supervisor that his 3 conduct was unlawful. See Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2012) (where a 4 Section 1983 claim is brought against a supervising official, qualified immunity is taken into 5 account, and a supervisor faces liability only where it would be clear to a reasonable supervisor 6 that his conduct was unlawful in the situation he confronted); see also LaLonde v. Cnty. of 7 Riverside, 204 F.3d 947, 953 (9th Cir. 2000) (if “there is a material dispute as to the facts 8 regarding what the [supervisor] actually did, the case must proceed to trial” (citing Act 9 Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993))). Accordingly, Defendants‟ Motion for Summary Judgment on this claim is DENIED. 11 United States District Court Northern District of California 10 C. 12 Section 1983 – Municipality Liability Plaintiffs also bring Section 1983 claims against the County of Marin in its municipal 13 capacity. A municipality or other local government may be liable under Section 1983 if the 14 governmental body “subjects” a person to a deprivation of rights or “causes” a person “to be 15 subjected” to such deprivation. Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 691-92 16 (1978). While municipalities cannot be held vicariously liable under Section 1983 for their 17 employees‟ actions, municipalities can be liable for policies, customs, practices, and or procedures 18 that violate constitutionally protected rights. Id. at 691. A plaintiff must go beyond the 19 respondeat superior theory of liability and demonstrate that the alleged constitutional deprivation 20 was the product of a policy or custom of the local governmental unit, because municipal liability 21 must rest on the actions of the municipality and not the actions of the employees of the 22 municipality. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). The Supreme Court has 23 emphasized that “[w]here a plaintiff claims that the municipality . . . has caused an employee to 24 [violate plaintiff‟s constitutional rights], rigorous standards of culpability and causation must be 25 applied to ensure that the municipality is not held liable solely for the actions of its 26 employee.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997). Thus, “a plaintiff seeking 27 to impose liability on a municipality under § 1983” is required “to identify a municipal „policy‟ or 28 „custom‟ that caused the plaintiff‟s injury.” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 123224 1 2 33 (9th Cir. 2011) (citations and quotation marks omitted). “Official municipal policy includes the decisions of a government‟s lawmakers, the acts of 3 its policymaking officials, and practices so persistent and widespread as to practically have the 4 force of law.” Connick, 131 S. Ct. at 1359. Absent a formal governmental policy, a plaintiff must 5 show a “longstanding practice or custom which constitutes the standard operating procedure of the 6 local government entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified on 7 other ground by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). “[A]n act performed pursuant to 8 a „custom‟ that has not been formally approved by an appropriate decisionmaker may fairly 9 subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Brown, 520 U.S. at 404. Moreover, a policy of inaction may be a 11 United States District Court Northern District of California 10 municipal policy within the meaning of Monell. See Long v. Cnty. of Los Angeles, 442 F.3d 1178, 12 1185 (9th Cir. 2006); Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam). “[A] 13 local governmental body may be liable if it has a policy of inaction and such inaction amounts to a 14 failure to protect constitutional rights.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) 15 (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). 16 “To impose liability against a county for its failure to act, a plaintiff must show: (1) that a 17 county employee violated the plaintiff‟s constitutional rights; (2) that the county has customs or 18 policies that amount to deliberate indifference; and (3) that these customs or policies were the 19 moving force behind the employee‟s violation of constitutional rights. Long, 442 F.3d at 1186 20 (citing Gibson, 290 F.3d at 1193-94). For a policy to be the moving force behind the deprivation 21 of a constitutional right, the identified deficiency in the policy must be “closely related to the 22 ultimate injury.” Gibson, 290 F.3d at 1196 (citation omitted). Plaintiffs‟ burden is to establish 23 “that the injury would have been avoided” had proper policies been implemented. Id. (quotation 24 omitted). Here, Plaintiffs have identified several policies and practices that they allege were the 25 moving force behind the violations of Carmignani‟s constitutional rights. 26 1. 27 Plaintiffs challenge the County‟s policy of allowing “safety checks” without hourly, 28 Inadequate Monitoring Procedures “direct visual observation[s]” in violation of Title 15, section 1027 of the California Code of 25 1 Regulations. Cal. Code Regs. tit. 15, § 1027; see also id. § 1006 (defining “safety checks” as 2 “direct, visual observation . . . to provide for the health and welfare of inmates.”). Although 3 Plaintiffs did not specifically state how this failure to comply with section 1027 led to a 4 constitutional violation, the inference of this alleged noncompliance is, as stated by Plaintiffs‟ 5 Expert, Dr. Neal Benowitz, that “[h]ad [Carmignani] been monitored, his health care providers 6 and others at the jail would have recognized when he became medically unstable” and would have 7 responded in time to save Carmignani‟s life. Giacomini Brewer Decl., Ex. G (Benowitz Report) 8 ¶ 18, Dkt. No. 101. 9 The essence of Plaintiffs‟ argument thus focuses on the Jail‟s practice of inadequately monitoring inmates and particularly those inmates with serious medical needs. Defendants argue 11 United States District Court Northern District of California 10 that if the Court finds a constitutional violation, the circumstances giving rise to that violation 12 arise out of a single instance of unconstitutional activity, not “a constitutionally deficient County 13 Jail policy regarding medical care to inmates nor . . . a constitutionally deficient pattern or practice 14 of deliberate indifference to inmates‟ medical needs at the County Jail.” Mot. at 18. Defendants 15 are correct that “[p]roof of a single incident of unconstitutional activity is not sufficient to impose 16 liability under Monell, unless proof of the incident includes proof that it was caused by an 17 existing, unconstitutional [local government] policy, which policy can be attributed to a [local 18 government] policymaker.” Meehan v. Cnty. of San Diego, 856 F.2d 102, 107 (9th Cir. 1988); see 19 also Connick, 131 S. Ct. at 1360 n.7 (“[C]ontemporaneous or subsequent conduct cannot establish 20 a pattern of violations that would provide „notice to the cit[y] and the opportunity to conform to 21 constitutional dictates . . .”). But here, Plaintiffs argue that there was more than a singular instance 22 of misconduct. They contend it was the Jail‟s regular practice and standard operating procedure to 23 inadequately monitor inmates. Specifically, Plaintiffs maintain that the Jail‟s regular practice and 24 operating procedure was only to observe inmates indirectly, using “tower checks” where deputies 25 looked out the tower window to observe the inmates from dozens of feet away, or listening to 26 inmates in through intercoms in their cells. CSF ¶¶ 157, 192-96. 27 28 When viewed in the light most favorable to Plaintiffs, a reasonable jury could find that the record demonstrates that the County‟s policy and practice of allowing tower checks as a 26 replacement for more regular and direct monitoring was the moving force behind the violation of 2 Carmignani‟s constitutional rights. First, the record establishes that regular monitoring is essential 3 to the overall safety and welfare of inmates and particularly those inmates experiencing drug 4 overdoses or other reactions. Title 15, section 1006 defines “safety checks” as “direct, visual 5 observation . . . to provide for the health and welfare of inmates,” Cal. Code Regs. tit. 15, § 1006 6 (emphasis added), with the natural inference that safety checks are important to maintaining “the 7 health and welfare” of inmates. Section 1027‟s statement that safety checks should be performed 8 “at least hourly” objectively indicates that performing safety checks on a regular basis is part of 9 maintaining inmates‟ health and welfare. Moreover, the Guideline for section 1027 provides that 10 “[t]he intent of the safety check is to account for the presence of the inmate, identify if anything 11 United States District Court Northern District of California 1 appears out of order and look for signs of observable distress or trauma. This includes looking for 12 indications that the inmate may be ill, injured, . . . or otherwise be in need of assistance.” 13 Martinelli Decl., Dkt. No. 131-5, Ex. 3 at 27. The Guideline also states “[s]ome inmates may 14 require more frequent checks based on their special problems or if the configuration of the jail 15 includes blind spots or other factors that result in poor inmate visibility. The more frequently staff 16 observes inmates, the more opportunity there is to supervise their activity and intervene when 17 required.” Id. Title 15 and its Guideline support Dr. Benowitz‟s conclusion that better and more 18 frequent monitoring may have discovered Carmignani‟s medical need and prevented his death. 19 Benowitz Report ¶ 18.7 Second, courts have found that such failure to monitor inmates can result in substantial risk 20 21 to their serious medical needs. See, e.g., Estate of Abdollahi v. Cnty. of Sacramento, 405 F. Supp. 22 2d 1194, 1206 (E.D. Cal. 2005) (denying county‟s summary judgment motion where a reasonable 23 jury could find the jail‟s failure to conduct regular safety checks as stated in Title 15, section 1027 24 posed a substantial risk to inmates); Wereb, 727 F. Supp. 2d at 923; Morris v. Dallas Cnty., 960 F. 25 7 26 27 28 Importantly, Defendants have submitted contradictory evidence by Dr. Raymond Deutsch, who notes that “[v]isual observations performed by the deputies would not have made it obvious or even apparent that they needed to summon medical care. Even if visual inspections were performed at other times by the deputies, it would not have made any difference as Mr. Carmignani would have appeared as if he was sleeping.” Deutsch Decl. ¶ 6, Dkt. No. 99. This evidence highlights a genuine dispute of material fact related to proof of causation. 27 1 Supp. 2d 665, 686 (N.D. Tex. 2013). Indeed, in Wereb, the court concluded that “a reasonable 2 factfinder could find that the failure to provide detainees with the right to medical care was an 3 obvious consequence of Maui County‟s employees‟ failure to closely monitor detainees or view 4 them in person.” 727 F. Supp. 2d at 923. The defendants had failed to follow police department 5 protocols, which required in-person visual checks of detainees, and instead had surveyed the 6 decedent, Wereb, primarily through video monitoring. Id. at 903. Despite purportedly monitoring 7 Wereb every fifteen minutes via video, Wereb was found dead in his cell around twenty-seven 8 hours after his last recorded movement. Id. As in this case, the Wereb defendants did not conduct 9 regular direct, visual observations of the inmate and instead primarily relied on alternative methods of observation, which did not necessarily reveal an accurate and complete picture of the 11 United States District Court Northern District of California 10 inmate‟s condition. Id. at 923. The Wereb court concluded that given the known drawbacks of the 12 alternative monitoring methods, it should have been obvious to Maui County that “monitoring 13 detainees exclusively by video would deprive county employees of an accurate understanding of 14 detainees‟ medical needs.” Id. These facts precluded summary judgment. 15 Here, a reasonable jury could conclude that failure to provide regular monitoring was 16 evidence of the County‟s deliberate indifference to substantial risks to inmates. See Connick, 131 17 S. Ct. at 1361-63 (recognizing that in some cases the likelihood of constitutional violations is an 18 obvious consequence of a county‟s policy or practice). Among other things, a reasonable jury 19 could conclude that the County‟s tower checks would not allow deputies to adequately observe 20 inmates such as Carmignani. Likewise, as in Wereb, the Jail‟s choice to allow an alternative 21 method of monitoring to take the place of direct visual observations could be found inadequate to 22 protect inmates from substantial risks posed to them while in the Jail. Ultimately, a reasonable 23 juror could conclude that the County‟s practice and standard operating procedure of conducting 24 indirect safety checks and monitoring posed a substantial risk to Carmignani, the County was 25 aware of that risk, and the County‟s practice and standard operating procedure was the moving 26 force behind the constitutional violation. Accordingly, the Court finds that genuine issues of 27 material fact remain as to the County‟s practice and standard operating procedure relating to 28 inmate monitoring. 28 1 2. 2 Also related to the issue of monitoring is Plaintiffs‟ assertion that the County failed to 3 develop and implement necessary policies for how to conduct proper safety checks. Plaintiffs 4 presented evidence from the County‟s person most knowledgeable witness, Sergeant Hickey, that 5 that the County had no policies specifically addressing the safety check requirement of section 6 1027. Hickey Dep. 74:10-21. Additionally, he testified that “[m]onitoring of medical is done by 7 our nursing and should be done by our nursing. Deputies aren‟t checking for any kind of medical 8 emergency, dire need. They should not be in observation of a medical need.” CSF ¶ 131. 9 Failure to Implement Policies for Conducting Monitoring/Safety Checks In Morris, the court found that fact issues relating to a jail‟s lack of monitoring precluded summary judgment on a municipal liability claim. 960 F. Supp. 2d at 686. Specifically, the 11 United States District Court Northern District of California 10 plaintiffs presented evidence that Dallas County‟s policy or custom was not to monitor inmates or 12 observe them for their physical or medical needs. Id. The only time direct visual observations 13 occurred was during meals or hygiene/cleanliness checks. Id. Moreover, Dallas County stipulated 14 that the jail staff did not monitor the medical condition of the inmates, nor were there policies for 15 such monitoring. Id. This evidence, coupled with the admission that the jail did not have a 16 procedure by which guards would pass on health information to the nursing staff, led the Morris 17 court to conclude that genuine issues of material fact remained, precluding summary judgment on 18 plaintiffs‟ municipal liability claim. Id. 19 While Morris is merely persuasive authority, the Ninth Circuit has “consistently has found 20 that a county‟s lack of affirmative policies or procedures to guide employees can amount to 21 deliberate indifference, even when the county has other general policies in place.” Long, 442 F.3d 22 at 1189. Here, taking the facts in the light most favorable to the Plaintiffs, the County‟s failure to 23 implement policies about how to monitor inmates and particularly those with medical needs fails 24 to adequately instruct deputies of their responsibilities. In turn, a reasonable jury could find the 25 County‟s decision not to enact such policies is predictably likely to result in the violation of 26 detainees‟ rights to not have their medical needs met with deliberate indifference. The obvious 27 consequence of the County‟s failure to enact such policies is demonstrated by Sergeant Hickey‟s 28 belief that the deputies are not responsible for monitoring for medical needs at all. There is also 29 1 conflicting evidence in the record about how the safety checks are performed, with some deputies 2 taking more careful steps to monitor inmates and other deputies only primarily using tower 3 checks. See CSF ¶ 199. The record establishes a triable issue as to whether the County‟s failure 4 to implement a policy outlining the specific requirements for adequately monitoring detainees 5 amounted to deliberate indifference to Carmignani‟s constitutional rights. 6 3. Communication Deficiencies 7 Plaintiffs also challenge the policies and practices relating to communications about 8 inmates‟ medical needs between the Jail‟s medical staff and deputies. First, Plaintiffs challenge 9 the use of Marin County Jail Medical and Mental Health Services Policy 705, which in 2011 stated: “[t]he Detention physician, Nurse Manager or DHS, or any health care staff designee, shall 11 United States District Court Northern District of California 10 communicate information obtained in the course of medical/mental health screening and care, to 12 jail authorities when necessary for the protection of the welfare of the prisoner, or others, 13 management of the jail, or maintenance of jail security.” CSF ¶ 130 (citing Martinelli Decl., Ex. 8 14 at 4). According to Plaintiffs, the Jail‟s administrators “allowed [this] vital tool for prisoner 15 protection to be ignored and forgotten.” Opp‟n at 10. Sergeant Hickey testified that there were no 16 policies or procedures in 2011 requiring the Jail‟s medical staff to alert the custodial staff as to 17 medical concerns for prisoners entering the Jail‟s general population. Hickey Dep. 36:2-10. 18 Second, Plaintiffs assert that the Jail failed “to provide training to medical staff and issue 19 policies and procedures on the proper input of critical medical information into the jail‟s central 20 computer system . . . .” Opp‟n at 11. Sergeant Hickey also testified that while there were 21 electronic files containing inmates‟ medical information on the computer system available to the 22 Jail deputies, there was no policy or procedure requiring them to review this information. Id. at 23 36:19-37:12. Third, Plaintiffs assert that the Jail failed to have appropriate communication 24 protocols with respect to medications taken off a person booked into the jail. Opp‟n at 11. 25 Among other things, Plaintiffs point out that an Embeda pill was found on Carmignani at the time 26 of booking and the deputy who discovered the pill then did not inform the Jail‟s medical staff or 27 anyone else about the discovery of this pill. 28 As described above, a municipality‟s failure to implement policies can amount to 30 1 deliberate indifference. See Long, 442 F.3d at 1189. Additionally, a county‟s failure to 2 “adequately to train its employees to implement a facially valid policy can amount to deliberate 3 indifference.” Id. at 1188 (citing Berry v. Baca, 379 F.3d 764, 768 (9th Cir. 2004) (even where 4 county‟s policy for releasing inmates was theoretically reasonable, as a matter of law, the county 5 could not be immune from allegations that, in practice, its implementation of the policy amounted 6 to deliberate indifference)). 7 Here, Sergeant Hickey testified that it is a recurring situation where inmates with medical 8 needs are sent into the Jail‟s general population; however, he also recognized that there were no 9 policies or procedures in 2011 requiring the Jail‟s medical staff to alert the custodial staff about those inmates‟ medical issues. Hickey Dep. 36:2-10. The fact that the Jail was aware that inmates 11 United States District Court Northern District of California 10 in general population have medical issues but there is no enforced method or training as to 12 whether and how to communicate information about those medical issues suggests deliberate 13 indifference to inmates‟ medical needs. See Morris, 960 F. Supp. 2d at 686-87. Specifically, the 14 record indicates that the Jail knew there were inmates with medical needs, but it does not have 15 clear policies or trainings for medical staff and deputies to be informed of those needs so that they 16 may be able to react and pass along information as necessary. See Johnson v. Hawe, 388 F.3d 17 676, 686 (9th Cir. 2004) (“[A] violation of federal rights may be a highly predictable consequence 18 of a failure to equip law enforcement officers with specific tools to handle recurring situations.”). 19 This evidence raises triable issues regarding whether the County‟s failure to implement, train, and 20 enforce policies on communications between the Jail‟s deputies and medical staff amounted to 21 deliberate indifference to Carmignani‟s constitutional rights. 22 4. Ad Hoc Repeal of Wakeup Requirement 23 Plaintiffs also challenge the ad hoc repeal of the jail‟s policy requiring graveyard shift pod 24 deputies to ensure that prisoners are awake with the bed made by 6 a.m. Opp‟n at 10-11. As 25 described above, it is Plaintiffs‟ burden to establish “that the injury would have been avoided” had 26 proper policies been implemented. Gibson, 290 F.3d at 1196 (citation omitted). Here, 27 presumably, Plaintiffs‟ contention is that had the wakeup requirement been followed, 28 Carmignani‟s overdose could have been discovered and avoided. While Plaintiffs have not shown 31 1 that the mere failure to allow inmates to sleep past 6 a.m. is itself evidence of deliberate 2 indifference, it may be another piece of evidence of inadequate monitoring as discussed above. 3 5. Transfer and Detoxification/Overdose Protocols 4 Finally, Plaintiffs contend that the County was deliberately indifferent for its “failure to 5 have an adequate policy and procedure on the identification of an inmate who is experiencing an 6 overdose, . . . a transfer policy and procedure when an inmate encounters problems during 7 detoxification, . . . [or] a written opiate detoxification protocol.” Opp‟n at 11. 8 9 In support, Plaintiffs rely on Nurse Fetterly‟s testimony that she either was unaware of, or could not remember, any specific policies or procedures on identifying inmates who may be overdosing, what to do if a nurse suspects an inmate is overdosing, putting inmates into an opiate 11 United States District Court Northern District of California 10 detox protocol, and transferring inmates when they encounters problems during detoxification. 12 See Opp‟n at 11 (citing CSF ¶¶ 95, 99, 100, 110, 114, 115); see also Defendants‟ responses to 13 related CSF paragraphs. Plaintiffs also provided the declaration of their expert, Nurse Terry 14 Fillman, who reviewed the County of Marin‟s Standardized Procedures for Registered Nurses as 15 to opiate and benzodiazepine withdrawal and alcohol withdrawal. Fillman Decl. ¶ 6, Dkt. No. 16 131-8. Nurse Fillman opines “that the policies and procedures that existed at the Marin County 17 Jail in July of 2011 . . . were inadequate insofar as they did not clearly set forth procedures and 18 symptoms necessitating immediate transfer to a hospital or other medical facility.” Id. at ¶ 25. 19 According to Nurse Fillman, “[i]f there were adequate written policies in place, Mr. Carmignani 20 would not have been placed in a situation where no one was actively monitoring and/or actively 21 observing him. Stated differently, since the „observation‟ policy and procedure is unwritten, there 22 is no specific procedure in place that provides guidance to staff as to how to transfer a patient like 23 Mr. Carmignani to an appropriate medical facility if the opiate detoxification process encounters 24 medical complication(s).” Id. Nurse Fillman also opines that the Jail provides “no guidance . . . 25 as to what steps [jail staff] should take when an inmate is to be „monitored‟ or „observed‟ during 26 „informal‟ opiate detoxification.” Id. at ¶ 26. 27 28 Having reviewed Plaintiffs‟ statement of facts, the corresponding evidence, and related expert declarations, the purported deficiencies Plaintiffs raise above are tenuous. First, Plaintiffs 32 1 have not shown specifically what was inadequate about the Jail‟s policy and procedures on the 2 identification of an inmate who is experiencing overdose. They do not point to any specific 3 deficiencies in the County‟s policy, nor do they show how the Jail‟s policies or procedures on the 4 identification of overdosing inmates make it deliberately indifferent. As to the Jail‟s knowledge, 5 there is no evidence that the Jail or its policymakers were on actual or constructive notice that an 6 omission or defect existed in the Jail‟s policies and procedures related to overdosing inmates that 7 could cause its staff to violate inmates‟ constitutional rights. Plaintiffs rely on this single incident 8 to establish the County‟s deliberate indifference. 9 In Connick, the Supreme Court held that a district attorney‟s office may not be held liable under Section 1983 for failure to train its prosecutors based upon a single Brady violation. 131 11 United States District Court Northern District of California 10 S.Ct. at 1356. Connick reiterated that “„[d]eliberate indifference‟ is a stringent standard of fault, 12 requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” 13 Id. at 1360 (citation omitted). Disregarding “a known or obvious consequence” means “city 14 policymakers are on actual or constructive notice that a particular omission in their training 15 program causes city employees to violate citizens‟ constitutional rights[.]” Id. While Connick 16 reaffirmed the alternative “single-incident” theory of liability, i.e., that a particular “showing of 17 „obviousness‟ can substitute for the pattern of violations ordinarily necessary to establish 18 municipal culpability[,]” it also reemphasized that the single-incident theory is possible only “in a 19 narrow range of circumstances” where “the unconstitutional consequences of failing to train” must 20 be “patently obvious” before a municipality can be liable under Section 1983 without proof of a 21 pre-existing pattern of violations. Id. at 1361. Applying those principles, Connick rejected 22 municipal liability in that case, reasoning that the risk that a prosecutor would commit a serious 23 Brady violation was not “obvious.” Id. at 1361-62. Licensed attorneys “are trained in the law and 24 equipped with the tools to interpret and apply legal principles, understand constitutional limits, 25 and exercise legal judgment.” Id. at 1361. The single-incident theory did not apply because “[i]n 26 light of this regime of legal training and professional responsibility, recurring constitutional 27 violations are not the „obvious consequence‟ of failing to provide prosecutors with formal in- 28 house training about how to obey the law.” Id. at 1363 (citation omitted). 33 1 As in Connick, here, there is nothing patently obvious about the County‟s purported failure 2 to have protocols about how to identify inmates who are overdosing. Unlike the claims related to 3 monitoring and communications of inmates‟ medical issues where the record shows that the lack 4 of clear policies creates the obvious consequence that the jail staff will not know how to handle 5 the usual and recurring situations at the Jail, Plaintiffs‟ claims related to the overdose 6 identification procedures are not so obvious. Plaintiffs have not shown how the Jail would know 7 that its medical staff, like the attorneys in Connick, were not capable of making reasonable 8 determinations about the circumstances they confronted. In other words, there is nothing about 9 the facts of this case that show that the highly predictable consequence of not having the specific protocols about how to identify an overdosing inmate would mean that the medical staff, with 11 United States District Court Northern District of California 10 their training and expertise, would not otherwise be able to make a determination about whether 12 the inmate was overdosing. Thus, under Connick, the single-incident theory of liability is 13 inappropriate on this claim. 14 Second, as to Plaintiffs‟ assertion that the County lacked a transfer policy and procedure 15 when an inmate encounters problems during detoxification, Plaintiffs fail to develop this theory to 16 describe what is unclear about the procedures for transfer or what symptoms should necessitate 17 transfer but did not under the Jail‟s policy at the time. It is fundamentally unclear what policies or 18 procedures both Plaintiffs and Nurse Fillman are referring to in their analysis. For instance, are 19 Plaintiffs saying the Jail does not have a policy to transfer seriously ill inmates to a hospital? Or 20 are they saying that the policy exists, but it is inadequate because the policy does not address a 21 usual or recurring situation with which the Jail and its staff must deal? Plaintiffs have not 22 provided evidence to show that the County disregarded a known or obvious consequence of its 23 action. Plaintiffs, therefore, have not raised facts that would demonstrate that the County was 24 deliberately indifferent. Even if they had, it is not clear Plaintiffs could overcome Connick‟s 25 hurdles related to obviousness of the alleged risk. 26 Third, Plaintiffs accuse the County of not having a written opiate detoxification protocol. 27 As with the first claim in this section, there is nothing in the record that suggests the County was 28 on actual or constructive notice that a particular omission of a written opiate detoxification 34 1 protocol causes Jail staff to violate inmates‟ constitutional rights. This case is the only incident 2 Plaintiffs provided as evidence that such an omission might result in constitutional violations. 3 There is nothing else in the record suggesting that the obvious consequence of failing to have a 4 written opiate detoxification protocol would make constitutional violations likely. Again, under 5 Connick, the single-incident theory of liability is inappropriate on this claim. 6 5. Summary of Municipal Liability Claims 7 In light of the foregoing, a reasonable jury could find that the County‟s policies and 8 practices, and lack thereof, relating to monitoring and communications about inmates‟ medical 9 concerns, were the moving force behind the violation of Carmignani‟s constitutional rights. Accordingly, summary judgment is DENIED on these claims. However, with regard to Plaintiffs‟ 11 United States District Court Northern District of California 10 claims for failure to have adequate policies and procedures regarding (1) identifying overdosing 12 inmates; (2) a transfer policy and procedure, and (3) a written opiate detoxification protocol, 13 Defendants‟ summary judgment motion is GRANTED. 14 D. 15 California Government Code Section 845.6 Claim Defendants also move for summary judgment on Plaintiffs‟ fourth cause of action against 16 Deputies Johnson, McCloskey, and Hammer, as well as Marin County, under California 17 Government Code section 845.6. Section 845.6 provides that generally neither a public entity nor 18 a public employee is liable for injury resulting from “the failure of [a public] employee to furnish 19 or obtain medical care for a prisoner in his custody.” Cal. Gov. Code § 845.6. The statute, 20 however, provides an exception “if the employee knows or has reason to know that the prisoner is 21 in need of immediate medical care and he fails to take reasonable action to summon such medical 22 care.” Id. California courts have narrowly interpreted section 845.6 to create limited liability 23 when: (1) the public employee „knows or has reason to know of the need,‟ (2) of „immediate 24 medical care,‟ and (3) „fails to take reasonable action to summon such medical care.‟” Castaneda 25 v. Dep’t of Corrs. & Rehab., 212 Cal. App. 4th 1051, 1070 (2013), review denied (May 1, 2013). 26 “[S]ection 845.6 creates out of the general immunity a limited cause of action against a public 27 entity for its employees‟ failure to summon immediate medical care only. . . . The statute does not 28 create liability of the public entity for malpractice in furnishing or obtaining that medical care.” 35 1 2 Id. (emphasis in original). Summary judgment is appropriate on Plaintiffs‟ claim against Deputies Johnson and 3 McCloskey. “Liability under section 845.6 is limited to serious and obvious medical conditions 4 requiring immediate care.” Watson v. State, 21 Cal. App. 4th 836, 841 (1993) (citations omitted). 5 It does not impose a duty to monitor the quality of care provided. Id. at 843. Thus, public 6 entities‟ and public employees‟ “duty to provide medical care to prisoners is limited to „. . . cases 7 where there is actual or constructive knowledge that the prisoner is in need of immediate medical 8 care.‟” Lucas v. Cnty. of Los Angeles, 47 Cal. App. 4th 277, 288 (1996) (emphasis in original) 9 (quoting Watson, 21 Cal. App. 4th at 841). Here, there is no evidence Deputies Johnson and McCloskey knew or had reason to know that Carmignani was in need of immediate medical care. 11 United States District Court Northern District of California 10 While Deputy Johnson may have had knowledge of Carmignani‟s drug ingestion, there is no 12 evidence that he understood that Carmignani at any point had an immediate need for medical care. 13 Deputy Johnson could have provided additional monitoring, but this does not alone create liability 14 under section 845.6. See Castaneda, 212 Cal. App. 4th at 1074 (“California courts hold the failure 15 . . . to monitor the progress of an inmate that the public employee has been summoned to assist, 16 are issues relating to the manner in which medical care is provided, and do not subject the State to 17 liability under section 845.6 for failure to summon.” (emphasis in original)). Plaintiffs have 18 provided very little argument or evidence to oppose Defendants‟ motion on this claim. 19 Defendants‟ motion on Plaintiffs‟ section 845.6 claim against Deputies Johnson and McCloskey is 20 therefore GRANTED. 21 As for Deputy Hammer, there is at least a triable issue of fact as to whether she knew or 22 had reason to know that Carmignani had an immediate medical need. Other deputies in Deputy 23 Hammer‟s position were trained to take an inmate‟s failure to respond as an indication of a serious 24 and potentially immediate medical need. Trustee Diaz‟s testimony also suggests that 25 Carmignani‟s appearance at the time indicated an immediate medical need. Deputy Hammer took 26 no action to summon medical help or to inform her fellow deputies that Carmignani would not 27 wake despite her yelling and hard knocking at his door. Instead, Deputy Hammer told Deputy 28 Johnson that Carmignani had “refused” his breakfast. A reasonable jury could find that Deputy 36 1 Hammer knew of or should have known of Carmignani‟s immediate medical need and then failed 2 to summon medical care. Should a jury find Deputy Hammer failed to summon care for 3 Carmignani‟s immediate medical need, section 845.6 permits liability against the County as well 4 for its employee‟s actions. See Castaneda, 212 Cal. App. 4th at 1070. Accordingly, summary 5 judgment on Plaintiffs‟ section 845.6 claim against Deputy Hammer and the County is DENIED. 6 E. Plaintiff Frary’s Wrongful Death Claim and Survival Action 7 1. Wrongful Death Claim (Count Five) 8 Defendants contend that Plaintiff Frary lacks standing to bring Count Five of the Complaint, a claim for wrongful death based on negligence. Mot. at 20. “In California, an action 10 for wrongful death is governed solely by statute, and the right to bring such an action is limited to 11 United States District Court Northern District of California 9 those persons identified therein.” Scott v. Thompson, 184 Cal. App. 4th 1506, 1510 (2010), as 12 modified on denial of reh’g (June 25, 2010). Specifically, standing to sue for wrongful death is 13 governed by California Code of Civil Procedure section 377.60, which authorizes causes of action 14 “to be brought by decedent‟s personal representative „or‟ any of a defined list of persons that 15 includes a decedent‟s spouse, children, or heirs.” Moreland v. Las Vegas Metro. Police Dep’t, 159 16 F.3d 365, 370 (9th Cir. 1998), as amended (Nov. 24, 1998) (citing Cal. Civ. Proc. Code § 17 377.60(a)). Where a decedent leaves issue, “his parents would not be his heirs at all and therefore 18 not entitled to maintain [a wrongful death] action at all.” Chavez v. Carpenter, 91 Cal. App. 4th 19 1433, 1440 (2001) (citations omitted). 20 There is an exception: “Regardless of their status as heirs, parents may sue for the 21 wrongful death of their child „if they were dependent on the decedent.‟” Id. at 1445 (quoting Cal. 22 Civ. Proc. Code § 377.60(b)); see also Foster v. City of Fresno, 392 F. Supp. 2d 1140, 1146 (E.D. 23 Cal. 2005). “„Dependence‟ refers to financial rather than emotional dependency . . . [and] a parent 24 „must show that they were actually dependent, to some extent, upon the decedent for the 25 necessaries of life.‟” Foster, 392 F. Supp. 2d at 1146; Chavez, 91 Cal. App. 4th at 1445 26 (“Financial dependency should be the test for parents who are not heirs of the decedent.”). 27 Accordingly, under section 377.60, a “parent may only assert a wrongful death claim if there are 28 no children or issue or if . . . she is „dependent on the decedent.‟” Id. at 1146 (granting summary 37 1 judgment where parents offered no evidence they were financially dependent on decedent). Defendants argue that because Carmignani left issue—his daughter, Amaya—and as Frary 2 3 testified that she is not claiming any loss of financial support from her son (Frary Dep. 25:25- 4 26:6), Frary is not entitled to bring her wrongful death claim for negligence. Mot. at 22. 5 Plaintiffs, however, assert that Frary can bring negligence claims on behalf of Carmignani‟s estate 6 as Carmignani‟s “personal representative” under section 377.60.8 Frary maintains that because the 7 Alameda County Superior Court appointed her as the Administrator of Carmignani‟s estate, she is 8 the personal representative of the estate under section 377.60. Opp‟n at 20 (citing Dkt. No. 131-9 9 (Request for Judicial Notice); see also Cal. Prob. Code § 58(a) (“Personal representative” means . . . administrator”). Defendants assert that Frary‟s claims fail because (1) Plaintiffs‟ Complaint 11 United States District Court Northern District of California 10 failed to specify that Frary brought wrongful death and survival claims as the Administrator of 12 Carmignani‟s estate; and (2) Frary cannot represent the estate for wrongful death when the heirs 13 are already in the case representing themselves in the suit for wrongful death. Reply at 13. As to 14 Defendants‟ first argument, while Plaintiffs‟ Second Amended Complaint is not the model of 15 clarity, it adequately names and identifies Frary as the administrator of Carmignani‟s estate. See 16 Second Am. Compl. ¶¶ 1, 16. Defendants‟ second argument about whether Frary may represent 17 the estate as Carmignani‟s personal representative is somewhat more complex. 18 “As a „personal representative‟ of the deceased, plaintiff may maintain the action on behalf 19 of the heirs—i.e. as „a statutory trustee to recover damages for the benefit of the heirs.‟” Adams v. 20 Superior Court, 196 Cal. App. 4th 71, 77 (2011) (citations omitted). “[I]t has long been 21 established that [the personal representative] acts as a statutory trustee for the heirs, and that if 22 there be no heir, there is no right of action in the personal representative.” Cal. State Auto Ass’n. 23 v. Jacobson, 24 Cal. App. 3d 850, 852-53 (1972). Thus, as Defendants point out, a wrongful death 24 8 25 26 27 28 In a footnote, Plaintiffs also argue that Frary should be able to recover as any other heir would under the wrongful death claim, not because of dependency, but because “[s]tate law damages rules cannot be applied by a court in a Section 1983 action when to do so would be „inconsistent with the Constitution and laws of the United States.‟” Opp‟n at 21 n.2 (citing Cotton ex rel. McClure v. City of Eureka, Cal., 860 F. Supp. 2d 999, 1011 (N.D. Cal. 2012)). While this case includes Section 1983 claims, those claims are not the subjects of Defendants‟ standing challenge; rather, Defendants‟ current challenge is to Count Five of Plaintiff‟s Complaint, which asserts a state law wrongful death claim on negligence grounds—not constitutional grounds. See Second Am. Compl. at 23-26; see also Mot. at 20. 38 1 claim may be asserted by either (a) the decedent‟s personal representative on behalf of the heirs, or 2 (b) the specified heirs (either as plaintiffs or joined defendants)—but it may not be asserted by 3 both. See Adams, 196 Cal. App. 4th at 77 (citing Scott, 184 Cal. App. 4th at 1511; Gordon v. 4 Reynolds, 187 Cal. App. 2d 472, 474 (1960) (“Either the administratrix or the heirs, but not both, 5 may sue, and if the administratrix sues, the heirs may not.”)). Defendants also argue that where 6 an estate‟s personal representative maintains a wrongful death action, that representative is a 7 fiduciary of the heirs, and should remain neutral when the heirs have conflicting claims. Id. at 78 8 (citations omitted). Defendants contend that even if Frary is the estate‟s “personal representative,” 9 Frary has not remained neutral when the heirs have conflicting claims. See Dkt. No. 108 10 United States District Court Northern District of California 11 (disputing the proposed distribution of the settlement with City Defendants). This case is somewhat unusual because despite Defendants‟ challenge to Frary‟s neutrality, 12 all Plaintiffs joined Plaintiff Frary and Ball‟s Opposition, which asserts that Frary is the proper 13 personal representative of Carmignani‟s estate. Additionally, despite the Plaintiffs‟ dispute over 14 the settlement proceeds from the City Defendants, none of the Plaintiffs have objected to Plaintiff 15 Frary remaining as the personal representative of Carmignani‟s estate. Finally, while 16 Carmignani‟s heirs are represented in this case, both the wrongful death claim for negligence 17 (Count Five) and the survival action for negligence (Count Six) are brought solely by Plaintiff 18 Frary, not Carmignani‟s heirs. 19 The Court takes judicial notice of the Alameda Superior Court‟s order appointing Frary as 20 the administrator of Carmignani‟s estate. Dkt. No. 131-9. Defendants did not object to taking 21 judicial notice of this document, and under Federal Rule of Evidence 201, the Court can judicially 22 notice “[o]fficial acts of the . . . judicial departments of the United States,” which are “capable of 23 accurate and ready determination by resort to sources whose accuracy cannot reasonably be 24 questioned.” See also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 25 2006) (“We may take judicial notice of court filings and other matters of public record”). The 26 Court thus finds that Frary is the personal representative of Carmignani‟s estate as appointed by 27 the Alameda County Superior Court. See also Mathews v. City of Oakland Police Dep’t, 2013 28 WL 6057689, at *9 (N.D. Cal. Nov. 14, 2013) (finding that plaintiff had standing where the 39 1 Alameda Superior Court granted plaintiff‟s petition to become decedent‟s personal representative); 2 Hassanati v. Int’l Lease Fin. Corp., 2014 WL 5032354, at *16 (C.D. Cal. Feb. 18, 2014) (“[A] 3 personal representative is by definition a court-appointed executor or administrator of an estate, 4 not merely an heir, . . . and . . . a personal representative must be a person empowered by law to 5 administer the decedent‟s estate.”). 6 However, under California law, given that the heirs are already represented in this suit in related wrongful death claims, the Court finds that Carmignani‟s heirs are more appropriate 8 representatives of this claim. See Adams, 196 Cal. App. 4th at 77; Scott, 184 Cal. App. 4th at 9 1511; Gordon, 187 Cal. App. 2d at 474. Defendants agree that “Plaintiff Frary cannot be the 10 administrator for Decedent‟s estate for wrongful death when the heirs are already in the case 11 United States District Court Northern District of California 7 representing themselves in the suit for wrongful death” (Reply at 13), but, as noted above, Count 12 Five is currently brought only by Plaintiff Frary, not Carmignani‟s heirs. See Second Am. Compl. 13 at 23. Accordingly, summary judgment on this claim is GRANTED; however, Plaintiffs are 14 granted leave to amend their Complaint to name Carmignani‟s heirs as Plaintiffs on Count Five of 15 the Complaint, the wrongful death claim based on negligence. 16 2. Survival Action (Count Six) 17 Frary also seeks to represent Carmignani‟s estate in a survival action for negligence. 18 Under California law, “a survivor cause of action is not a new cause of action that vests in the 19 heirs on the death of the decedent. It is instead a separate and distinct cause of action which 20 belonged to the decedent but, by statute, survives that event.” Quiroz v. Seventh Ave. Ctr., 140 21 Cal. App. 4th 1256, 1264 (2006). Section 377.30 governs the surviving cause of action: 22 23 24 25 A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent‟s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent‟s personal representative or, if none, by the decedent‟s successor in interest. 26 Cal. Civ. Proc. Code § 377.30. Here, Plaintiff Frary has established that she is Carmignani‟s 27 personal representative, and as such she has capacity to sue on the Estate‟s behalf; however, 28 Defendants argue that Frary needed to file a special affidavit to pursue this claim. See id. § 377.32 40 1 (“The person who seeks to commence an action or proceeding . . . as the decedent‟s successor in 2 interest under this article, shall execute and file an affidavit”). Frary did not submit this affidavit, but this does not mean that she may not proceed with 3 4 the claim. See Parsons v. Tickner, 31 Cal. App. 4th 1513, 1523-24 (1995) (“Literally, [section 5 377.24] does not require that the affidavit be filed as a condition precedent to commencing or 6 continuing the action.”); Deirmenjian v. Deutsche Bank, A.G., 2006 WL 4749756, at *31 n.157 7 (C.D. Cal. Sept. 25, 2006) (“California law does not require that an heir file an affidavit under § 8 377.32 . . . as [a] condition[] precedent to commencing . . . an action.”); Gutierrez v. City of 9 Woodland, 2012 WL 1640509, at *6 (E.D. Cal. May 9, 2012) (“Section 377.32 does not indicate that it is a condition precedent to filing the lawsuit . . . only that the affidavit must be filed at some 11 United States District Court Northern District of California 10 point.”). Thus, in an abundance of caution, the Court orders Frary to file a declaration that she has 12 the capacity to proceed on behalf of Carmignani‟s Estate in accordance with Cal. Civ. Proc. Code 13 § 377.32. See Estate of Burkhart v. United States, 2008 WL 4067429, at *11 (N.D. Cal. Aug. 26, 14 2008) (ordering same). Summary judgment is thus DENIED WITHOUT PREJUDICE on 15 Count Six, Plaintiff Frary‟s survival action based on negligence, subject to reconsideration if 16 Plaintiff Frary does not file the required declaration within 30 days of this Order.9 17 V. CONCLUSION 18 Taking the facts in the light most favorable to the Plaintiffs, the Court finds that there 19 remain genuine disputes of material fact as to whether the Jail and its staff acted with deliberate 20 indifference to Anthony Carmignani‟s medical needs while he was in their custody. 21 Based on the analysis above, the Court ORDERS as follows: 22 (1) Defendants‟ Motion for Summary Judgment as to Plaintiffs‟ Section 1983 claims 23 against Deputies Johnson and Hammer, Nurse Fetterly, and Sheriff Doyle is DENIED, 24 but GRANTED as to Deputy McCloskey. (2) Defendants‟ Motion for Summary Judgment as to Plaintiffs‟ Section 1983 claims 25 26 27 28 9 Defendants raised an argument on reply about Plaintiffs‟ negligence claims. The Court will not address that argument as Defendants failed to raise them in their opening motion, and Plaintiffs did not have any opportunity to respond. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”). 41 1 against the County of Marin is GRANTED IN PART and DENIED IN PART. 2 Defendants‟ Motion is GRANTED as to Plaintiffs‟ claims against the County for 3 failing to have or failing to have adequately transfer procedures, opiate detoxification 4 protocols, and procedures to identify inmates who are overdosing. Defendants‟ Motion 5 is DENIED as to Plaintiffs‟ claims against the County for failure to monitor and failure 6 to have policies and procedures about how to monitor inmates and communicate 7 information about inmates‟ medical needs. 8 9 10 United States District Court Northern District of California 11 (3) Defendants‟ Motion for Summary Judgment as to Plaintiffs‟ section 845.6 claims against Deputy Hammer and the County is DENIED, but GRANTED as to Deputies McCloskey and Johnson. (4) Defendants‟ Motion for Summary Judgment as to Plaintiff Frary‟s wrongful death 12 claim (Count Five) is GRANTED WITHOUT PREJUDICE, but DENIED as to her 13 survival claim (Count Six). Plaintiff Frary must file the requisite affidavit as described 14 herein within 30 days of this Order to maintain the survival claim. 15 (5) Plaintiffs may amend their Complaint by April 1, 2015 to (1) name Nurse Fetterly as a 16 defendant in Plaintiffs‟ first cause of action, and (2) to name Carmignani‟s heirs as the 17 representatives on Count Five, Wrongful Death Based on Negligence. 18 IT IS SO ORDERED. 19 20 21 22 Dated: February 25, 2015 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 23 24 25 26 27 28 42

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?