Borges v. City of Eureka et al

Filing 121

ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 67 Defendants' Motion for Summary Judgment; denying 72 Defendants' Motion to Exclude Expert Testimony. (fs, COURT STAFF) (Filed on 1/25/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEPHANY BORGES,

Case No. 15-cv-00846-YGR

Plaintiff,
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v.

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT; DENYING
DEFENDANTS’ MOTION TO EXCLUDE

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CITY OF EUREKA, ET AL.,
Defendants.

Re: Dkt. Nos. 67, 72

United States District Court
Northern District of California

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Plaintiff is the mother of decedent Daren Borges, who died as a result of acute

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methamphetamine intoxication while detained in a sobering cell of the Humboldt County

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Correctional Facility (the “County jail”) on June 13, 2014. Plaintiff brings the following: (1)

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section 1983 denial of medical care claim under the Fourth and Fourteenth Amendments against

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individual arresting City of Eureka police officers (“City officers”) and detaining Humboldt

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County correctional officers (“County officers”); (2) section 1983 interference with familial

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relationship claim under the Fourteenth Amendment against City and County officers; (3) section

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1983 municipal and supervisory liability claim against the City of Eureka (“City”), Humboldt

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County (“County”), and Sheriff Downey; (4) Americans with Disabilities Act and Rehabilitation

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Act claims for failure to provide reasonable accommodations against the City and County; and (5)

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state law claims for violation of California Government Code section 845.6 and negligence for

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failing to summon medical care against all defendants. Presently pending before the Court are (1)

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Defendants’ Motion for Summary Judgment (Dkt. No. 67) and (2) Defendants’ Motion to Exclude

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Expert Testimony (Dkt. No. 72).

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The Court having carefully considered the papers, pleadings, admissible evidence, and
arguments of the parties ORDERS as follows:

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(A)

Defendants’ Motion to Exclude Expert Testimony is DENIED.

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(B)

Defendants’ Motion for Summary Judgment is GRANTED IN PART and DENIED IN

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PART as follows:

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1. Defendants’ motion for summary judgment as to the Fourth Amendment

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United States District Court
Northern District of California

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unreasonable seizure claim against the City officers is GRANTED.
2. Plaintiff’s Fourteenth Amendment claim against City officers for denial of
medical care is DISMISSED AS MOOT.
3. Defendants’ motion for summary judgment as to the Fourth Amendment denial
of medical care claim for City officers is GRANTED.
4. Defendants’ motion for summary judgment as to the Fourth and Fourteenth

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Amendment denial of medical care claims against the County officers Corporal

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Bittner, Corporal Hammer, Officer Swim, and Supervising Correctional Deputy

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Hershberger is DENIED.

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5. Defendants’ motion for summary judgment as to the Fourth and Fourteenth

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Amendment denial of medical care claims against County officer Corporal

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Basler is GRANTED.

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6. Defendants’ motion for summary judgment as to the Fourteenth Amendment
familial interference claim against the City officers is GRANTED.
7. Defendants’ motion for summary judgment as to Fourteenth Amendment

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familial interference claim against County officers Corporal Bittner, Corporal

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Hammer, Officer Swim, and Supervising Correctional Deputy Hershberger is

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DENIED.

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8. Defendants’ motion for summary judgment as to the Fourteenth Amendment
familial interference claim against County officer Corporal Basler is GRANTED.
9. Defendants’ motion for summary judgment as to the section 1983 claim for
municipal and supervisory liability against the City is GRANTED.
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10. Defendants’ motion for summary judgment as to the section 1983 claim for

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municipal and supervisory liability against the County is DENIED.

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11. Defendants’ motion for summary judgment as to the section 1983 claim for

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municipal and supervisory liability against Sheriff Downey is DENIED.
12. Defendants’ motion for summary judgment as to the Americans with

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Disabilities Act and Rehabilitation Act claims against the City and County is

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GRANTED.
13. Defendants’ motion for summary judgment as to the section 845.6 claim

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against the County and County officers Corporal Bittner, Corporal Hammer,

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Officer Swim, and Supervising Correctional Deputy Hershberger is DENIED.
14. Defendants’ motion for summary judgment as to the section 845.6 claim

United States District Court
Northern District of California

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against County officer Corporal Basler is GRANTED.

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15. Defendants’ motion for summary judgment as to the section 845.6 claim

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against the City and City officers is GRANTED.

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16. Defendants’ motion for summary judgment as to the negligence claim against

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the County and County officers is GRANTED.

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17. Defendants’ motion for summary judgment as to the negligence claim against

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the City and City officers is GRANTED.

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I.

BACKGROUND
On June 13, 2014, at approximately 2:00 p.m., City of Eureka police officers received and

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responded to a call concerning a male on a city sidewalk who appeared to be under the influence

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and was taking off his clothes. (Dkt. No. 79 at AMF 1.) Upon arrival at the city sidewalk, Officer

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Michael Stelzig saw that Borges was displaying what Stelzig understood to be signs of stimulant

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intoxication, namely, sweating, glassy eyes with a blank stare, uncontrollable body movements,

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and mumbling. (Id. at AMF 3.) Officer Stelzig arrested Borges for public intoxication. Officer

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Bryon Franco arrived at the scene shortly after Officer Stelzig, and the two of them agreed with

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one another that Borges did not need to be transported to a hospital emergency room, but could

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instead be taken directly to the County jail. (Id. at AMF 17.)
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Upon arrival at the County jail, Officer Stelzig informed the jail staff that Borges was

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“methed out.”. (Id. at 19.) Meanwhile, Borges remained in the back seat of Officer Stelzig’s patrol

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car, where—unseen by Officer Stelzig—he banged his head on the door/window. (Id. at AMF 22.)

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Once inside the County jail, Corporal Teri Bittner and Officer David Swim began the

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initial pat-down of Borges. (See id. at AMF 201.) Due to Borges’s resistance and unpredictability,

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an additional officer, Corporal Tim Hammer, was asked to assist. (Id. at AMF 30.) Supervising

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Correctional Deputy Tim Hershberger was not directly involved in the pre-booking of Borges, but

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plaintiff presents evidence that he observed Borges and was able to hear the encounter from his

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desk in the processing area. (Id. at AMF 33.)

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If a detainee is “uncooperative” at the County jail, the County jail’s practice requires that

United States District Court
Northern District of California

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the medical evaluation be postponed until after the detainee is placed in a sobering cell. (Id. at

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AMF 38.) Borges was thus placed in a sobering cell at 2:40 p.m. by Officer Swim and Corporals

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Bittner and Hammer. (Id. at AMF 41.) Deputy Hershberger was also present. (Id. at AMF 34.)

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After Borges was placed in the sobering cell, a nurse from CFMG, the medical group with whom

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the County contracts to provide medical services, came to evaluate him approximately 20 minutes

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later, at 3:00 p.m. (Id. at AMF 45.) The nurse did not go inside the sobering cell because Borges

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was “swinging his shirt around and appeared agitated.” (Dkt. No. 67 at 15.) In general, the medical

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staff will not go inside the sobering cell to examine the inmate and take his vital signs if he is

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uncooperative. (See id. at 14.)

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Over the next hour, County officers performed five sobering cell safety checks.1 (See id. at

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16-17; Dkt. No. 78 at 24-29.) Some of the County officers also observed a monitor in the County

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jail processing area, Dkt. No. 79 at AMF 375, which contained a live feed of the sobering cell, the

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video recording of which has since been preserved and is part of the summary judgment record,

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Dkt. No. 79-21. The parties disagree as to what one can observe on the video. Plaintiff argues that

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the video evidences that the County officers saw “Borges take his clothes off, soak them in toilet

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County officers also performed one sobering cell safety check prior to the 3:00 p.m.
CFMG nurse’s evaluation.
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water, fling them around, yell, roll around on the floor, and spin in circles on the floor.” (Dkt. No.

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78 at 25.) Plaintiff further describes the video as showing that Borges “flopped around on the cell

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floor naked, fanned himself to cool off, became more agitated and distressed, held his head in his

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hands as if crying, washed his groin with toilet-water soaked clothing, kicked the privacy wall,

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assumed a face down position with his legs trembling and twitching, then went to his knees

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doubled over looking sick.” (Id.) Plaintiff argues that Borges’s “highly agitated and bizarre

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behavior” was consistent with excited delirium, a symptom of a methamphetamine overdose that

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requires immediate medical attention. (See id.) Defendants do not entirely dispute this description

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of Borges’s behavior, other than to argue that the sobering cell video does not actually show a
“rapid deterioration by Borges,” and to state that there is no “evidence or reasonable inference that

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United States District Court
Northern District of California

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can be drawn that Borges was soaking his clothes in the toilet to “cool himself off.” (Dkt. No. 94

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at 8-9.)

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The parties agree that eventually Borges became more passive. Plaintiff claims Borges’s

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last movement detectable by the sobering cell camera was at 3:16 p.m. (Dkt. No. 78 at 27.)

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Defendants counter that the video shows Borges moving his head at about 3:17 p.m. (Dkt. No. 94

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at 13.) Defendants also argue that the County officers observed Borges breathing, as they indicated

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on the sobering cell log, even though this is not observable from the video. 2 (See id.) Finally, the

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parties agree that, at 4:00 p.m., Corporal Hammer performed a final sobering cell safety check and

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found that Borges did not appear to be breathing. (Dkt. No. 67 at 16; Dkt. No. 78 at 29.)

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At that point, the County officers initiated emergency medical care, but Borges did not
have an observable pulse. (Dkt. No. 67 at 17.) Borges was transported from the jail to the hospital

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Between 3:17 p.m. and 4:00 p.m., County officers performed three safety checks that
plaintiff contends were inaccurate to the extent they described Borges as breathing in the sobering
cell log. (Dkt. No. 78 at 28-29.) Plaintiff argues that the checks were not long enough for the
County officers to be able to tell whether or not Borges was breathing, since they ranged in time
from just 1 to 2.6 seconds. (See id. at 28.) Defendants counter that two of the three checks were
not 2.6 and 2.3 seconds, as plaintiff alleges, but actually 3.238 and 3.169 seconds, respectively.
(Dkt. No. 94 at 14.) Defendants also argue that “[i]f respirations are occurring at the usual rate of
12 to 20 times per minute, it is certain at the higher end that a respiration was visible and more
likely than not at the lower end as a matter of simple arithmetic.” (Id.)

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by emergency medical personnel at approximately 4:16 p.m. (Id.) Borges died as a result of acute

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methamphetamine intoxication. (Dkt. No. 79 at AMF 445.) Plaintiff argues that Borges more than

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likely would have survived with proper medical treatment if he had been taken to the hospital at

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any point prior to 3:45 p.m. (Dkt. No. 78 at 29.)

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II.

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EVIDENTIARY ISSUES
Defendants seek to exclude the following opinions of plaintiff’s police and jail practices

expert, Richard Lichten: (1) “opinions based upon the subjective interpretation or

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misinterpretation of video of the decedent,” (2) “opinions as to any policy for which there is no

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foundation that the policy is that of the agency or entity to which it is attributed,” and (3) “the

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absence of any policy with respect to a monitoring system that is not required at the Humboldt

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United States District Court
Northern District of California

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County Correctional Facility.” (Dkt. No. 72 at 5.) The Court addresses each in turn.

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A. Lichten’s Opinions Based Upon the Sobering Cell Video

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Defendants do not dispute that Lichten is qualified to offer an expert opinion as to police

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policies and practices, or to opine on what reasonable officers would do in a given hypothetical

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situation. However, they claim that because Lichten “has no purported expertise in forensic video

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analysis,” he is not “qualified to conclude from the video what could be observed in real time by

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any police officer or correctional officer compared to what is captured on the video.” (Id. at 3.)

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However, plaintiff does not offer Lichten’s opinion to conclude what any of the County officers

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observed in real-time. Rather, Lichten simply included a recitation of the facts in his Rule 26

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report that includes a description of what he observed on the video recordings in order to lay a

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proper foundation for his opinions on police and jail practices, and what reasonable officers would

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have done in response to the facts as he describes them. If defendants believe Lichten has

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“misdescribed” what is depicted on the video, then they will have the opportunity to cross-

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examine him regarding the factual basis for his opinions, and to offer their own expert witness to

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interpret the events on the video. Defendants’ “recourse is not exclusion of the testimony, but,

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rather, refutation of it by cross-examination and by the testimony of [his] own expert witnesses.”

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Humetrix v. Gemplus, 268 F.3d 910, 919 (9th Cir. 2001).

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Defendants’ motion to exclude Lichten’s opinion based upon what he observed in the
video is therefore DENIED.

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B. Lichten’s Opinion Regarding Breach of County Policy

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Defendants argue that Lichten improperly concluded that a policy marked “Humboldt

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County Adult Policy and Procedure Manual” was the policy of the Humboldt County Correctional

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Facility, instead of CFMG, the medical group providing services to the County jail. (Dkt. No. 72

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at 4.) Based on this, defendants argue that Lichten incorrectly concluded that the County policy

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was breached because medical staff did not see Borges prior to being admitted to the sobering cell.

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Defendants claim that the County policy instead requires only that the inmate be seen within one
hour of being placed in the sobering cell, and that the policy was therefore not breached in this

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United States District Court
Northern District of California

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case. Once again, defendants’ “recourse is not exclusion of the testimony, but, rather, refutation of

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it by cross-examination and by the testimony of [their] own expert witnesses.” Humetrix, 268 F.3d

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at 919. The jury will then decide whether the County’s policy was breached.

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Defendants’ motion to exclude Lichten’s opinion that County policy was breached based
on the “Humboldt County Adult Policy and Procedure Manual” is therefore DENIED.

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C. Lichten’s Opinion Regarding the Sobering Cell Monitoring System

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Defendants move to exclude Lichten’s opinion that the County is “neglectful for failing to

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have adequate policies regarding an audio monitoring system in the subject sobering cell” on the

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basis that “there is no foundation that such a system is required in the subject sobering cell.” (Dkt.

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No. 72 at 5.) Regardless of whether a “requirement” to use a monitoring system in the sobering

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cell existed, Lichten is entitled to offer his expert opinion as to what types of measures a

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reasonable municipality would have adopted with regard to the monitoring of the sobering cell.

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The fact that a state regulation may not require audio monitoring in the sobering cell is something

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the jury may consider when deciding whether to accept Lichten’s conclusion as to the sufficiency

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of the steps the County took to monitor the sobering cell. Further, as stated previously, defendants

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can present their own expert testimony on this issue.

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Defendants’ motion to exclude Lichten’s opinion that the County was neglectful for not
having a monitoring system in the sobering cell is therefore DENIED.
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III.

APPLICABLE LAW ON SUMMARY JUDGMENT
Summary judgment is proper if the pleadings and evidence in the record “show that there

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is no genuine issue as to any material fact” and the moving party is entitled to judgment as a

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matter of law. Fed. R. Civ. P. 56(c). Any party seeking summary judgment bears the initial burden

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of identifying those portions of the pleadings and discovery responses that demonstrate the

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absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby. Inc.,

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477 U.S. 242, 248 (1986). An issue is “genuine” only if there is a sufficient evidentiary basis on

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which a reasonable fact finder could find for the nonmoving party, and a dispute is “material” only

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if it could affect the outcome of the suit under governing law. Id. at 248–49.
Defendants, in their motions, have the burden of producing evidence negating an essential

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Northern District of California

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element of each claim on which they seek judgment or showing that plaintiff cannot produce

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evidence sufficient to satisfy their burden of proof at trial. Nissan Fire & Marine Ins. Co., Ltd. v.

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Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If defendants meet that burden, plaintiff may

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defeat summary judgment by showing, through admissible evidence, that a material factual

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dispute exists. California v.Campbell. 138 F.3d 772, 780 (9th Cir. 1998). When deciding a

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summary judgment motion, courts must view the evidence in the light most favorable to the

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nonmoving parties and draw all justifiable inferences in their favor. Anderson, 477 U.S. at 255;

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Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). Summary judgment is rarely

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appropriate when credibility is at issue. SEC v. M & A West. Inc., 538 F.3d 1043, 1055 (9th Cir.

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2008). “Where the facts are disputed, their resolution and determinations of credibility ‘are

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manifestly the province of a jury.’” Wall v. County of Orange, 364 F.3d 1107, 1110–11 (9th Cir.

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2004) (quoting Santos v. Gates, 287 F.3d 846, 852 (9th Cir. 2002)).

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IV.

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ANALYSIS
Plaintiff brings the following: (1) section 1983 denial of medical care claim under the

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Fourth and Fourteenth Amendments against individual arresting City officers and detaining

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County officers; (2) section 1983 interference with familial relationship claim under the

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Fourteenth Amendment against City and County officers; (3) section 1983 municipal and
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supervisory liability claim against the City, the County, and Sheriff Downey; (4) Americans with

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Disabilities Act and Rehabilitation Act claims for failure to provide reasonable accommodations

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against the City and County; and (5) state law claims for violation of California Government Code

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section 845.6 and negligence for failing to summon medical care against all defendants. The

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analysis for each follows:

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A.

Section 1983 Claims Against Individual Defendants

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To prevail on a section 1983 claim against individual officers, a plaintiff must show that
the officer, acting under color of state law, caused the deprivation of a federal right. Hafer v. Melo,

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502 U.S. 21, 25 (1991) (citation omitted). However, officers sued in an individual capacity may

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assert a defense based on qualified immunity, which precludes liability if “their conduct does not

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Northern District of California

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violate clearly established statutory or constitutional rights of which a reasonable person would

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have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). To determine

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whether an officer is entitled to qualified immunity, a court must evaluate two independent

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questions, (1) whether the officer’s conduct violated a constitutional right, and (2) whether that

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right was clearly established at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232

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(2009) (citations omitted).

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A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a

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reasonable official would understand that what he is doing violates that right.” Anderson v.

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Creighton, 483 U.S. 635, 640 (1987). Although the ultimate burden is upon plaintiff to show that

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the constitutional right was clearly established, on summary judgment the court must resolve all

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factual disputes and draw all reasonable inferences in her favor. See Clairmont v. Sound Mental

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Health, 632 F.3d 1091, 1110 (9th Cir. 2011). “If a genuine issue of material fact exists that

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prevents a determination of qualified immunity at summary judgment, the case must proceed to

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trial.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citation omitted).

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Plaintiff asserts that individual officers violated the following constitutional rights, and the

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analysis for each follows: (1) the Fourth Amendment based on unreasonable seizure by City

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officers, (2) the Fourth and Fourteenth Amendments based on denial of medical care by City

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officers, (3) the Fourth and Fourteenth Amendments based on denial of medical care by County
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officers, and (4) the Fourteenth Amendment based on familial interference by City and County

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officers.

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1. Fourth Amendment Claim Against City Officers for Unreasonable Seizure
Plaintiff alleges that the City officers detained and arrested Borges in violation of his

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Fourth Amendment right to be free from unreasonable searches and seizures. (Dkt. No. 25 at ¶¶

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34-38.) However, at the hearing on this motion, on December 13, 2016, plaintiff conceded that the

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City officers did, in fact, have probable cause to arrest Borges.

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United States District Court
Northern District of California

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Defendants’ motion for summary judgment as to the Fourth Amendment unreasonable
seizure claim against the City officers is therefore GRANTED.
2. Fourth and Fourteenth Amendment Claims Against City Officers for Denial
of Medical Care
Plaintiff brings a Fourth Amendment claim or, in the alternative, a Fourteenth Amendment

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claim for denial of medical care by the arresting City officers, Officers Stelzig and Franco. (Dkt.

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No. 111 at 1-2.) Plaintiff alleges that Borges had “signs and symptoms of a high level of

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methamphetamine intoxication and possible overdose, excited delirium, and/or a head injury.”

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(Dkt. No. 78 at 35.) Plaintiff further alleges that “[o]fficers are reasonably trained that any one of

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these three conditions requires immediate medical attention, and the simple step of either calling

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paramedics or transporting Borges to the hospital would not have been contrary to any legitimate

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police interests.” (Id.) Thus, under the Fourth Amendment, plaintiff claims that Officers Stelzig

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and Franco “unreasonably denied and delayed medical assistance” for Borges. (Dkt. No. 25 at ¶

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47.) Under the Fourteenth Amendment, plaintiff claims that the City officers were “recklessly and

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deliberately indifferent to [Borges’s] serious medical needs.” (Id. at ¶ 53.)

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At the hearing on this motion, on December 13, 2016, the parties agreed that Borges’s

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right to medical care during and immediately after his arrest was governed by the Fourth

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Amendment and its “objective reasonableness” standard, rather than the Fourteenth Amendment’s

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guarantee of “substantive due process.”3 Thus, as the Fourth Amendment provides an explicit

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textual source of constitutional protection for the conduct at issue here, plaintiff’s Fourteenth

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Amendment claim against the City officers for denial of medical care is DISMISSED AS MOOT.

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The Fourth Amendment requires law enforcement officers to provide objectively
reasonable post-arrest care. Mejia, 2012 WL 1079341, at *5 n. 12 (citing Tatum, 441 F.3d at

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1099). However, the Ninth Circuit has not prescribed the exact contours of what constitutes

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objectively reasonable post-arrest care. Id. (citing Tatum, 441 F.3d at 1099). At a minimum,

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though, the Ninth Circuit has required police officers to “seek necessary medical attention by

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promptly summoning help or taking the injured arrestee to a hospital.” Estate of Cornejo ex rel.

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Solis v. City of Los Angeles, 618 F. App’x 917, 920 (9th Cir. 2015) (citing Tatum, 441 F.3d); see

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Northern District of California

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also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245 (1983) (“Whatever the standard may

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be, [the defendant] fulfilled [his] constitutional obligation by seeing that [the apprehended person]

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was taken promptly to the hospital that provided the treatment necessary for his injury.”).

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In Tatum, for instance, the Ninth Circuit held that “a police officer who promptly summons

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the necessary medical assistance has acted reasonably for purposes of the Fourth Amendment”

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where the arrestee’s labored breathing after being handcuffed made it clear he was in distress.

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Tatum, 441 F.3d at 1099 (citation omitted). The Ninth Circuit specifically held that the officers in

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Tatum did not violate the Fourth Amendment by failing to perform CPR, since officers are not

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required to provide “what hindsight reveals to be the most effective medical care for an arrested

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suspect.” Id. at 1098-99 (emphasis added) (citing Maddox v. City of Los Angeles, 792 F.2d 1408,

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1415 (9th Cir. 1986).

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See also Tatum v. City and Cty. of San Francisco, 441 F.3d 1090, 1098–99 (9th Cir.
2006); Mejia v. City of San Bernardino, No. 11–cv–452, 2012 WL 1079341, at *5 n. 12 (C.D. Cal.
Mar. 30, 2012) (noting that Tatum mandates analysis of post-arrest medical care under the Fourth
Amendment in the wake of Graham v. Connor, 490 U.S. 386 (1989)); Von Haar v. City of
Mountain View, No. 10-CV-02995-LHK, 2011 WL 782242, at *3 (N.D. Cal. Mar. 1, 2011) (“the
Ninth Circuit has recently treated the failure to provide adequate medical care during and
immediately following an arrest as a claim properly brought under the Fourth Amendment and
subject to the Fourth Amendment’s objective reasonableness standard” (citations omitted)).

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Drawing all reasonable inferences in favor of the non-moving party, plaintiff has not

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proffered sufficient evidence that the City officers failed to provide objectively reasonable post-

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arrest care to Borges. Even assuming that the City officers knew Borges was under the influence

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of a stimulant and may have had signs of an overdose, plaintiff has offered no authority to suggest

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that the only reasonable course of action is to take the arrestee to the hospital rather than a nearby

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jail, where the arrestee should receive a medical evaluation. Although taking Borges to the

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hospital may have been the most effective medical care for him in hindsight, this is not required

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by the Fourth Amendment. Moreover, in this case, plaintiff’s medical expert admits that Borges

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was clinically stable at the time of his arrest, Dkt. No. 82-1 at 15, and video footage of the arrest
shows that Borges was capable of understanding officer instructions and was compliant at the time

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Northern District of California

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of his arrest, Dkt. No. 79-19. Thus, the arresting City officers did not violate Borges’s Fourth

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Amendment right to medical care.

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For the reasons stated above, defendants’ motion for summary judgment as to the Fourth

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Amendment denial of medical care claim for City officers Stelzig and Franco is therefore

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GRANTED.

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3. Fourth and Fourteenth Amendment Claims Against County Officers for
Denial of Medical Care
Plaintiff also brings a Fourth Amendment claim or, in the alternative, a Fourteenth

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Amendment claim for denial of medical care by the County officers who detained Borges in the

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sobering cell after he was brought to the County jail. (Dkt. No. 111 at 1-2.) Plaintiff asserts that

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the County officers failed to follow their own policies “requiring a nurse to conduct [an] intake

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medical evaluation due to Borges’s delirious and ‘uncooperative’ state, failed to conduct even a

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minimal medical screening, and . . . made observations of obvious distress that should have led to

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emergency medical treatment, or at least immediate medical evaluation.” (Dkt. No. 78 at 30.)

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Plaintiff further argues that, “[i]nstead of calling for a nurse or arranging for transportation to the

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hospital, [the County officers] rushed Borges into a sobering cell, where they watched him rapidly

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deteriorate over a video monitor.” (Id.) Thus, using the Fourth Amendment rubric, plaintiff claims

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that the County officers “unreasonably denied and delayed medical assistance” for Borges. (Dkt.
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No. 25 at ¶ 47.) Using the Fourteenth Amendment rubric, plaintiff claims that the County officers

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were “recklessly and deliberately indifferent to [Borges’s] serious medical needs” and “violated

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[Borges’s] substantive due process liberty interest in reasonably nonrestrictive confinement

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conditions.” (Id. at ¶¶ 53-54.)

5
6

a. Legal Standard: Fourth versus Fourteenth Amendment
The parties do not dispute that Borges—a warrantless arrestee who had not been convicted

7

of any crime—had some constitutional right to medical care during his detention in the sobering

8

cell. At a minimum, all parties agree that Borges had a Fourteenth Amendment right to medical

9

care that would be governed by the Fourteenth Amendment’s “deliberate indifference” standard.
Plaintiff, however, argues that Borges also had a Fourth Amendment right to medical care, and

11
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Northern District of California

10

that the Court’s analysis should therefore be governed by the Fourth Amendment’s “objective

12

reasonableness” standard. (Dkt. No. 78 at 33-42.) See Cty. of Sacramento v. Lewis, 523 U.S. 833,

13

842 (1989) (favoring an explicit textual source of constitutional protection over a more

14

generalized notion of substantive due process when determining which constitutional amendment

15

governs a particular right).

16

The Ninth Circuit has not addressed this question directly and its prior decisions suggest

17

alternative conclusions. Compare Pierce v. Multnomah Cnty., Oregon, 76 F.3d 1032, 1043 (9th

18

Cir. 1996) (holding that, because the Fourth Amendment is used “to assess the constitutionality of

19

the duration of or legal justification for a prolonged warrantless, post-arrest, pre-arraignment

20

custody,” it “should also apply to evaluate the condition of such custody” (citations omitted)) with

21

Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1197, 1187 (9th Cir. 2002) (holding that, under

22

Pierce, “the Fourth Amendment sets the ‘applicable constitutional limitations’ for considering

23

claims of excessive force during pretrial detention,” but that pretrial detainee’s “right to receive

24

adequate medical care while in the custody of the County . . . derive[d] from the due process

25

clause” under the Fourteenth Amendment), overruled on other grounds, Castro v. Cty. of Los

26

Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc).

27
28

For the reasons outlined below, the Court finds it is not necessary at this juncture to decide
whether Borges had a Fourth Amendment right to medical care, rather than just a Fourteenth
13

1

Amendment right. As outlined below, with respect to Corporal Bittner, Corporal Hammer, Officer

2

Swim, and Supervising Correctional Deputy Hershberger, sufficient evidence exists from which a

3

jury could find that each violated Borges’s right to medical care even under the more defendant-

4

friendly “deliberate indifference” standard of the Fourteenth Amendment. With respect to

5

Corporal Basler, even under the more plaintiff-friendly “objective reasonableness” standard of the

6

Fourth Amendment, insufficient evidence exists from which a jury could find that he violated

7

Borges’s right to medical care.

8
9
10

United States District Court
Northern District of California

11
12

b. Analysis as to Corporal Bittner, Corporal Hammer, Officer Swim, and
Supervising Correctional Deputy Hershberger
i.

The Impact of Castro on the Fourteenth Amendment’s
“Deliberate Indifference” Standard

While this case was pending, the Ninth Circuit decided Castro, 833 F.3d 1060, which

13

analyzed a Fourteenth Amendment claim against officers who failed to prevent an attack against a

14

pretrial detainee by another inmate with whom he was jailed. The Castro court announced a new,

15

objective “deliberate indifference” standard for analyzing a pretrial detainee’s “failure-to-protect”

16

claim, which no longer required proof of an officer’s subjective awareness of the risk to which he

17

was exposing the detainee. See id. at 1070-71. The parties disagree over Castro’s application here.

18

Plaintiff argues this new objective “deliberate indifference” standard should be used to analyze the

19

Fourteenth Amendment claim for denial of Borges’s medical care. (Dkt. No. 116 at 2.) Defendants

20

disagree. (Dkt. No. 114 at 13, n. 4.) The Court will first address how Castro changed the

21

Fourteenth Amendment “deliberate indifference” standard in “failure-to-protect” cases before

22

discussing how the Castro “deliberate indifference” standard also applies to the Fourteenth

23

Amendment denial of medical care claim in this case.

24

Prior to Castro, the Ninth Circuit had held that a single “deliberate indifference” test

25

existed under both the Eighth and Fourteenth Amendments. Castro, 833 F.3d 1060, 1068

26

(citations omitted). This was a subjective “deliberate indifference” test, derived from the Eighth

27

Amendment, which required the plaintiff to prove an officer’s punitive intent or subjective

28

awareness of the risk of harm. Id. (citations omitted). In Castro, though, the court found that this
14

1

prior Ninth Circuit precedent was cast into “serious doubt” as a result of the Supreme Court’s

2

ruling in Kingsley, which held that a pretrial detainee need not prove an officer’s “subjective intent

3

to punish” to support a Fourteenth Amendment excessive force claim (as opposed to an Eighth

4

Amendment claim). Id. at 1068-70 (citing Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015)). The

5

Castro court held that, “[i]n sum, Kingsley rejected the notion that there exists a single ‘deliberate

6

indifference’ standard applicable to all § 1983 claims, whether brought by pretrial detainees or by

7

convicted prisoners.” Id. at 1069 (citing 135 S.Ct. 2466).
After examining Kingsley at length, the Castro court also held that “the broad wording of

9

Kingsley . . . did not limit its holding to ‘force’ but spoke to ‘the challenged governmental action’

10

generally.” Id. at 1070 (citing 135 S.Ct. at 2473–74). The Castro court thus extended Kingsley’s

11
United States District Court
Northern District of California

8

elimination of the subjective awareness requirement beyond Fourteenth Amendment excessive

12

force cases, holding that Kingsley also applied to Fourteenth Amendment failure-to-protect claims.

13

Id. In so holding, Castro overruled the single, subjective “deliberate indifference” standard

14

previously used to analyze both Eighth and Fourteenth Amendment claims, finding that Kingsley

15

required these two types of claims to have different “deliberate indifference” standards. Id. In its

16

place, Castro articulated an objective “deliberate indifference” test for Fourteenth Amendment

17

failure-to-protect claims, in which the plaintiff need only prove that the officer’s conduct was

18

subjectively “intentional,” but may then otherwise rely on “purely objective” evidence, rather than

19

having to prove punitive intent or subjective awareness of risk. 833 F.3d at 1068-70.

20

The Castro court did not specifically address whether this new objective “deliberate

21

indifference” test should apply specifically to pretrial detainees’ Fourteenth Amendment claims

22

arising from untreated serious medical needs. However, the Ninth Circuit has long analyzed

23

claims that government officials failed to address pretrial detainees’ serious medical needs using

24

the same “deliberate indifference” standard as cases alleging that government officials failed to

25

protect pretrial detainees in some other way. See id. at 1085 (Ikuta, J., dissenting) (collecting

26

cases). In addition, Castro expressly overruled Clouthier v. County of Contra Costa, 591 F.3d

27

1232 (9th Cir. 2010)—a case which itself involved claims that correction facility officials failed to

28

address the serious medical needs of a pretrial detainee—for interpreting “deliberate indifference”
15

1

as requiring proof of the officer’s subjective intent to punish. 833 F.3d at 1070. Thus, when

2

considered alongside Castro’s broad interpretation of Kingsley, the Court finds that applying

3

Castro’s objective “deliberate indifference” test to this case is an appropriate lens through which

4

to evaluate the claim. See also Guerra v. Sweeny, No. 113CV01077AWIBAMPC, 2016 WL

5

5404407, at *3 (E.D. Cal. Sept. 27, 2016) (finding that Castro should apply to pretrial detainees’

6

claims of injury resulting from untreated serious medical needs).
ii.

7
8
9

Under Castro, the elements of Borges’s Fourteenth Amendment claim against the
individual County officers are:
(1)

11
United States District Court
Northern District of California

10

(2)

12

(3)

13
14
15
16

Application of the Castro “Deliberate Indifference” Test

(4)

The [officer] made an intentional decision with respect to the
conditions under which [Borges] was confined;
Those conditions put [Borges] at substantial risk of suffering
serious harm;
The [officer] did not take reasonable available measures to
abate that risk, even though a reasonable officer in the
circumstances would have appreciated the high degree of risk
involved—making the consequences of the [officer’s] conduct
obvious; and
By not taking such measures, the defendant caused [Borges’s]
injuries.

Castro, 833 F.3d at 1071.

17

The parties do not dispute that the first element of the Castro test is easily met here, as the

18

County officers made intentional decisions regarding the conditions of Borges’s confinement and

19

medical care. (See Dkt. No. 114 at 3, Dkt. No. 116 at 2.) Indeed, only a purely accidental act or

20

inaction would fail to satisfy this first requirement. See id. at 1070 (noting this element “would not

21

be satisfied in the failure-to-protect context if the officer’s inaction resulted from something totally

22

unintentional,” such as “an accident or sudden illness that rendered him unconscious and thus

23

unable to monitor the cell”).

24

The remaining three elements of the Castro test are “purely objective.” Id. Thus, drawing

25

all reasonable inferences in favor of plaintiff, on the second element, the Court finds that a dispute

26

of material fact exists as to whether Borges faced a substantial risk of serious harm. At best, the

27

experts disagree. Defendants’ medical expert believes that Borges ingested a lethal dose of

28

methamphetamine and would not have recovered even with medical care. (Dkt. No. 114 at 6.)
16

1

Plaintiff’s medical expert believes that he could have saved plaintiff if he had been brought to the

2

emergency room. (Id.)

3

“With respect to the third element, the defendant’s conduct must be objectively

4

unreasonable, a test that will necessarily turn on the facts and circumstances of each particular

5

case.” Castro, 833 F.3d at 1071 (citations and internal quotation marks omitted). The Castro court

6

held that this required only that there be “substantial evidence that a reasonable officer in the

7

circumstances would have appreciated the high degree of risk involved . . . .” Id. at 1072. In

8

Castro, the court found that “[t]here clearly [was] sufficient evidence” to support the jury’s

9

finding of “deliberate indifference” because the officers knew or should have known that (1) the
plaintiff was too intoxicated to care for himself, (2) the inmate they placed in the sobering cell

11
United States District Court
Northern District of California

10

with him was combative, (3) the jail’s written policies forbade their conduct, and (4) other housing

12

options were available. Id. at 1073.

13

Here, drawing all reasonable inferences in favor of plaintiff, sufficient facts exist from

14

which a jury could find that a reasonable officer under the circumstances would have appreciated

15

the high degree of risk involved to Borges and taken reasonable measures to abate that risk,

16

including, without limitation, calling for the jail nurse to render medical care to Borges, either

17

during his intake or after observing Borges’s behavior on the sobering cell’s camera monitor. (See

18

Lichten Report at Op. Nos. 3- 5.) A jury could also find that a reasonable officer in Corporal

19

Hammer’s position would have contacted Borges to ascertain that he was alright or called the jail

20

nurse to assess Borges after observing his behavior during the first and second sobering cell safety

21

checks. (See Lichten Report at ¶ 63.)

22

The fourth and final element of the Castro test requires “that the officers’ failure to take

23

reasonable measures to protect [Borges] caused his injuries.” Castro, 833 F.3d at 1072. A jury

24

could find that this element is met here, where plaintiff’s medical expert states that Borges more

25

than likely would have survived with access to proper medical treatment. (Dkt. No. 82 -1 at ¶ 12.)

26

iii.

Qualified Immunity

27

For the purposes of the qualified immunity analysis, defendants argue in their motion that,

28

“[t]o the extent any [constitutional] violation is found to have occurred, such a violation would not
17

1

have been clearly established and qualified immunity should apply.” (Dkt. No. 67 at 26.)

2

Defendants offer no further support for this argument. However, in their supplemental briefing,

3

defendants note that, “particularly with respect to plaintiff’s Fourth and Fourteenth Amendment

4

denial of medical care claims against the County [officers], the case law is not clearly

5

established,” which the Court interprets as an attempt to support their earlier argument that there

6

was no clearly established constitutional right that could have been violated. (Dkt. No. 94 at 18.)
Defendants’ arguments fail to persuade. While the legal standard to evaluate such conduct

8

may be unclear, the nature of the constitutional violation is not. See Hope v. Pelzer, 536 U.S. 730,

9

741 (2002) (holding that the state of the law need only be sufficiently clear to give defendants fair

10

notice their conduct was illegal). Here, just as in Castro, “[t]he contours of the right required only

11
United States District Court
Northern District of California

7

that the individual defendants take reasonable measures to mitigate the substantial risk to [the

12

decedent].” 833 F.3d 1067. Thus, the officers’ obligations did not change, even though the court in

13

Castro was (and is also here) applying a new, objective “deliberate indifference” standard to the

14

analysis of the Fourteenth Amendment claim. See id. A reasonable officer would have known that

15

ignoring serious signs of medical distress would violate a detainee’s constitutional rights,

16

regardless of which legal standard is ultimately applied to analyze the violation. Therefore,

17

qualified immunity does not bar the claim against the County officers.

18

For the reasons set forth above, defendants’ motion for summary judgment as to the Fourth

19

and Fourteenth Amendment denial of medical care claims against Corporal Bittner, Corporal

20

Hammer, Officer Swim, and Supervising Correctional Deputy Hershberger is DENIED.

21
22

c. Analysis as to Corporal Basler
Plaintiffs allege that Corporal Basler was seated at the nearby computer desk in the

23

processing area while Borges was being patted down, and that he also got up to assist Corporal

24

Bittner, Corporal Hammer, Officer Swim, and Officer Stelzig as they walked Borges to the

25

sobering cell. (Dkt. No. 79 at AMF 241, 353-354.) Plaintiffs further allege that, after Corporal

26

Hammer performed the first sobering cell safety check, he had a discussion with Corporal Basler

27

and Corporal Bittner immediately after he came back from the safety check. (Id. at AMF 402.)

28
18

1

Even if the more plaintiff-friendly Fourth Amendment “objective reasonableness” standard

2

applied in this case, the Court finds nothing in this summary judgment record to support a jury

3

finding that Corporal Basler acted in a manner that was objectively unreasonable under the

4

circumstances. Even more tellingly, plaintiff’s police expert also offers no support for the

5

proposition that Corporal Basler behaved unreasonably.

6
7

Thus, defendants’ motion for summary judgment as to the Fourth and Fourteenth
Amendment denial of medical care claims against Corporal Basler is GRANTED.
4. Fourteenth Amendment Claims Against City Officers and County Officers for

8

Familial Interference

9

Plaintiff alleges that the City officers and County officers violated her Fourteenth

11
United States District Court
Northern District of California

10

Amendment substantive due process right to familial association with her deceased son, Borges.

12

“This circuit has recognized that parents have a Fourteenth Amendment liberty interest in the

13

companionship and society of their children.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.

14

2010) (citing Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.1991)). Neither party

15

appears to dispute that this right was clearly established for the purposes of the qualified immunity

16

analysis.

17

To show that her Fourteenth Amendment right to familial association was violated,

18

plaintiff must prove that the officers’ conduct “shock[ed] the conscience.” Lewis, 523 U.S. at 846;

19

see also Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). Although the overarching test is

20

whether the officers’ conduct “shock[ed] the conscience,” the Ninth Circuit has distinguished

21

between familial interference cases where this standard is met by showing only that the officer

22

acted with “deliberate indifference” and cases that require a more demanding showing that the

23

officer acted with a “purpose to harm” for reasons unrelated to legitimate law enforcement

24

objectives. Porter, 546 F.3d. at 1137 (citing Lewis, 523 U.S. at 836).

25

To determine which standard is appropriate here, the “critical consideration is whether the

26

circumstances are such that actual deliberation [by the officers] [was] practical.” Id. (quoting

27

Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir.1998) (internal quotation

28

marks omitted)). When actual deliberation is practical, then an officer’s “deliberate indifference”
19

may suffice to shock the conscience. Id. However, if a law enforcement officer must make a snap

2

judgment because of an escalating situation, his conduct may only be found to shock the

3

conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.

4

Id. at 1137-40. “A court may determine at summary judgment whether the officer had time to

5

deliberate (such that the deliberate indifference standard applies) or instead had to make a snap

6

judgment because he found himself in a quickly escalating situation (such that the purpose to harm

7

standard applies), so long as the undisputed facts point to one standard or the other.” Chien Van

8

Bui v. City & Cty. of San Francisco, 61 F. Supp. 3d 877, 901 (N.D. Cal.2014) (citation and

9

internal quotation marks omitted). “By its nature,” though, “the determination of which situation

10

the officer actually found himself in is a question of fact for the jury, so long as there is sufficient

11
United States District Court
Northern District of California

1

evidence to support both standards.” Id. (citation and internal quotation marks omitted).

12

Drawing all reasonable inferences in favor of plaintiff, sufficient evidence exists for a jury

13

to find that both the City and County officers were able to deliberate during the course of Borges’s

14

arrest and his subsequent detention. Thus, for the purposes of this motion, the Court applies the

15

“deliberate indifference” standard to plaintiff’s Fourteenth Amendment familial interference claim

16

under the “shocks the conscience” test.4

17
4

18
19
20
21
22
23
24
25
26
27
28

City defendants’ arguments to the contrary do not persuade. In their original briefing on
this motion, the parties agreed that the “deliberate indifference” standard should apply in this case.
(Dkt. Nos. 67 at 24-25, 78 at 36-37, and 94 at 15-18). In their supplemental briefing, however,
City defendants now conflate various standards. They seem to argue that the “shocks the
conscience” standard applies, is “higher,” and is not met. (Dkt. No. 113 at 3-4; see also Dkt.
No.117 at 2-3.) As outlined above, Ninth Circuit precedent is clear that, in this context, “deliberate
indifference” is simply a subset of the “shocks the conscience” test. Porter, 546 F.3d at 1137.
Also, City defendants now rely on case law using the “purpose to harm” standard, rather
than the “deliberate indifference” standard, to argue that the officers’ conduct did not “shock the
conscience” in this case. (See Dkt. No. 113 at 41.) Those cases differ from this one, however,
given the amount of time both City and County officers had to deliberate. As City defendants
themselves point out in their supplemental briefing, Officer Stelzig even had time to discuss with
Officer Franco “just the total well-being of Mr. Borges, on whether we felt that he needed medical
clearance, or, you know, obviously he’s going to be medically checked out at the jail. . . .” (Dkt.
No. 113 at 5.) In contrast, cases in which the Ninth Circuit has found that the “purpose to harm”
standard is appropriate to deal with situations that evolved so quickly that actual deliberation was
not possible and required “repeated split-second decisions.” Porter, 546 F.3d at 1139-1140
(holding that actual deliberation was not possible and applying the “purpose to harm” standard
where a five-minute altercation presented a series of events that “were in constant flux, with much
yelling, confusion and a driver who was refusing to exit or stop his car”); Wilkinson, 610 F.3d at
20

a. The Impact of Castro on the “Deliberate Indifference” Test

1
2

As previously discussed, the Castro court specifically found that “the broad wording of

3

Kingsley . . . did not limit its holding to ‘force’ but spoke to ‘the challenged governmental action’

4

generally,” which suggests that Kingsley and Castro should extend to most claims arising under

5

the Fourteenth Amendment’s substantive due process clause. See Castro, 833 F.3d at 1070 (citing

6

135 S.Ct. at 2473–74). In addition, despite supplemental briefing, the only familial interference

7

case either party cites where the officers had time to deliberate is Lee v. of Los Angeles, 250 F.3d

8

668, 685–86 (9th Cir. 2001), which itself suggests an objective standard is appropriate for

9

analyzing plaintiff’s familial interference claim. Thus, the Court will apply Castro’s objective

10

deliberate indifference test to plaintiff’s familial interference claim.5

United States District Court
Northern District of California

11
12
13
14

554 (holding that the “purpose to harm” standard was appropriate where, “[w]ithin a matter of
seconds, the situation evolved from a car chase to a situation involving an accelerating vehicle and
dangerously close proximity to officers on foot”); Moreland, 159 F.3d 365 at 373 (applying
“purpose to harm” standard where police officers were responding to a gun fight in a crowded
parking lot).
5

15
16
17
18
19
20
21
22
23
24
25
26
27
28

The parties were also ordered to brief whether the Castro “deliberate indifference”
standard should apply to plaintiff’s familial interference claim and, assuming that the Castro
standard does apply, whether summary judgment should be granted. (Dkt. No. 112 at 2.)
In her supplemental briefing responding to this order, plaintiff instead appears to argue that
two separate series of Ninth Circuit cases applying Fourteenth Amendment substantive due
process analysis to familial interference claims are no longer good law. (See Dkt. Nos. 115 at 2-6,
116 at 7-13.) Plaintiff appears to have two bases for this argument: (1) that Lewis, 523 U.S. 833,
and its progeny, which use the “shocks the conscience” test, have been called into question by the
Supreme Court’s decision in Kingsley, 135 S. Ct. 2466, which was relied upon by the Ninth
Circuit in Castro, and (2) that Ninth Circuit precedent holding that a due process familial
interference claim should be analyzed separately, without regard to the standard used to analyze
the underlying constitutional violation, has also been called into question by Lingo v. City of
Salem, 832 F.3d 953 (9th Cir. 2016). The Court disagrees.
First, plaintiff argues that, “in light of Kingsley and Castro, it is likely that the Ninth
Circuit would conclude that [Lewis and its Ninth Circuit progeny] only set the standard for a due
process familial interference claim involving accidental or unintentional conduct.” (Dkt. No. 115
at 6.) However, neither Lewis nor Kingsley support finding any liability whatsoever for the type of
“accidental” or “unintentional” conduct plaintiff suggests. In fact, Kingsley reaffirmed Lewis’s
holding that even “liability for negligently inflicted harm is categorically beneath the threshold of
constitutional due process.” 135 S. Ct. at 2472 (quoting Lewis, 523 U.S. at 849) (internal quotation
marks omitted). As the Supreme Court elaborated in Kingsley: “[I]f an officer’s Taser goes off by
accident or if an officer unintentionally trips and falls on a detainee, causing him harm, the pretrial
detainee cannot prevail on an excessive force claim. But if the use of force is deliberate—i.e.,
purposeful or knowing—the pretrial detainee’s claim may proceed.” Id; see also Daniels v.
Williams, 474 U.S. 327, 331 (1986) (“Historically, this guarantee of due process has been applied
21

1
2
3
4
5
6
7
8
9
10

to deliberate decisions of government officials to deprive a person of life, liberty, or property.”
(citations omitted)). Consequently, Kingsley does not alter the “shocks the conscience” test
articulated in Lewis, which has been applied by the Ninth Circuit to familial interference claims, in
the manner suggested by plaintiff.
Plaintiff next appears to argue that the Court should analyze the substantive due process
familial interference claim by the same culpability standard as the underlying constitutional
violation, e.g. the Court should apply a Fourth Amendment “objective reasonableness” standard
when the underlying constitutional violation was a Fourth Amendment violation. (Dkt. No. 115 at
6.) This argument was flatly rejected by the Ninth Circuit in Byrd v. Guess, 137 F.3d 1126 (9th
Cir. 1998), abrogation on other grounds recognized by Moreland, 159 F.3d at 372-73. In Byrd, the
mother and widow of the decedent asserted that, even though their loss of society claims arose
under the Fourteenth Amendment, the real basis for their claims was the violation of the
decedent’s Fourth Amendment rights by the police officers who shot him. Id. at 1134. Thus, the
Byrd plaintiffs argued that their Fourteenth Amendment claim should be governed by the
“objective reasonableness” standard applicable to claims brought under the Fourth Amendment.
Id. In response, the Byrd court held:
This argument has surface appeal: If the police kill a person, why should
the claim of the surviving spouse for loss of society be governed by a different
standard than the claim of the deceased’s estate? The surviving spouse and the
estate have both suffered a loss by the killing. It would certainly simplify jury
instructions if the claims of the surviving spouse and the estate, often brought in
the same action, were both governed by the objective reasonableness standard.
But there is binding and persuasive authority otherwise. The Supreme Court has
stated that “Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.” Rakas v. Illinois, 439 U.S.
128, 133–34 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174
(1969)).

United States District Court
Northern District of California

11
12
13
14
15
16

If the Byrds’ argument is adopted, the Byrds would be entitled to damages
for loss of society if [decedent’s] Fourth Amendment rights were violated. In
essence, the Byrds would be vicariously asserting [decedent’s] Fourth
Amendment rights, in violation of Rakas’s admonition. To avoid this dilemma,
the Byrds’ claim must be governed by a different standard than Sylvan’s claim.
This holding is consistent with our recognition in Curnow v. Ridgecrest Police,
952 F.2d 321 (9th Cir.1991), that a parent’s loss of a child’s society “raises a
different constitutional claim” than the child’s direct Fourth Amendment claim.
Id. at 325.

17
18
19
20
21

Id.

22

Despite this clear ruling to the contrary, plaintiffs attempt to distinguish Byrd by arguing
that its reliance on Rakas and Alderman—which both limited the application of the exclusionary
rule in criminal cases to the person whose Fourth Amendment rights had been violated—was
somehow undermined by the Ninth Circuit’s recent holding in Lingo, 832 F.3d at 959. (Dkt. No.
115 at 5-6.) Lingo, however, held that the exclusionary rule does not apply in section 1983 cases
to prevent officers from defending themselves using the illegally obtained evidence that gave them
probable cause to arrest the plaintiff. 832 F.3d at 959-60. Lingo said nothing that would alter the
well-established rule that Fourth Amendment rights are personal rights that may not be vicariously
asserted, upon which the court’s holding in Byrd was based. Thus, plaintiff’s argument that Lingo
undermines Ninth Circuit precedent holding that Fourteenth Amendment familial interference
claims are to be analyzed separately from the underlying constitutional violation is inapposite.

23
24
25
26
27
28

22

1

b. Application of the Castro Deliberate Indifference Test

2

Although the Ninth Circuit has not applied the Castro objective “deliberate indifference”
test in this context, the reasoning of Castro suggests that the Court should first ask whether the

4

officer’s conduct with respect to plaintiff was subjectively “intentional,” but then rely on “purely

5

objective” evidence to determine if the plaintiff’s Fourteenth Amendment right was violated. See

6

833 F.3d at 1070-71. Thus, with respect to the City officers, assuming their conduct was

7

“intentional,” it appears that the analysis under Castro would be similar to the analysis under the

8

Fourth Amendment’s “objective reasonableness” test outlined in section IV(A)(2) above. For the

9

reasons outlined in that section, where the Court explained that no triable issue of fact exists as to

10

whether the City officers’ conduct was “objectively reasonable,” defendants’ motion for summary

11
United States District Court
Northern District of California

3

judgment as to the Fourteenth Amendment familial interference claim against the City officers is

12

GRANTED.

13

For the reasons set forth in section IV(A)(3)(b)(ii), which already applied the Castro

14

deliberate indifference test to County officers’ conduct, defendants’ motion for summary judgment

15

as to the Fourteenth Amendment familial interference claim against Corporal Bittner, Corporal

16

Hammer, Officer Swim, and Supervising Correctional Deputy Hershberger is DENIED. Likewise,

17

for the reasons set forth in section IV(A)(3)(c), defendants’ motion for summary judgment as to

18

the Fourteenth Amendment familial interference claim against Corporal Basler is GRANTED

19

because there is no triable issue of fact as to whether Corporal Basler acted in a manner that was

20

“objectively unreasonable.”

21

B.

Section 1983 Claim for Municipal and Supervisory Liability against City,

22

County, and Sheriff Downey.

23

1. Legal Standard and Analysis as to Entity Defendants

24

In Monell v. Dep’t of Social Servs., the at Supreme Court held that local governments are

25

“persons” under section 1983 subject to liability for damages where “action pursuant to official

26

municipal policy of some nature cause[s] a constitutional tort.” 436 U.S. 658, 691 (1978).

27

Although a municipality may not be held vicariously liable for the unconstitutional acts of its

28

employees on the basis of an employer-employee relationship with the tortfeasor, it may be held
23

1

liable under Monell when a municipal policy or custom causes an employee to violate another’s

2

constitutional right. 436 U.S. at 691–92. In order to hold a municipality liable, a plaintiff must

3

show that: (1) he or she possessed a constitutional right of which he or she was deprived; (2) the

4

city had a policy; (3) said policy amounted to deliberate indifference to his or her constitutional

5

rights; and (4) such policy was the moving force behind the constitutional violation. Plumeau v.

6

Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir.1997) (citations omitted).

7

Here, the Court has already found no triable issue of fact exists as to the first element with

8

respect to the City defendants in section IV(A)(2), as Borges’s Fourth Amendment right to

9

medical care was not violated by City officers. Thus, defendants’ motion for summary judgment

10

United States District Court
Northern District of California

11

as to the section 1983 claim against the City is GRANTED.
With respect to the County defendants, the Court has found triable issues of fact exist with

12

regard to the first element, as set forth in section IV(A)(3)(b)(ii), since plaintiff has proffered

13

sufficient evidence that some of the County officers’ actions (and inactions) may have deprived

14

Borges of a constitutional right to medical care under the Fourth and/or Fourteenth Amendments.

15

As to the second and third elements for establishing Monell liability against the County,

16

plaintiff argues that the County failed “to implement adequate training on, and ensure compliance

17

with, written policies” and “failed to enact policies and training to ensure jail staff would

18

recognize signs of medical distress and call medical staff when appropriate.” (Dkt. No. 78 at 40.)

19

As a result, plaintiff argues that the jail staff “would routinely place arrestees who were

20

uncooperative due to a high level of intoxication and/or mental illness in sobering cells without a

21

comprehensive medical and/or health screening,” and failed to “adequately monitor arrestees in

22

sobering cells.” (Id.) Plaintiff argues that these policies and practices, as well as the failure to train,

23

were “deliberately indifferent” because the County was aware of “a substantial risk of serious

24

harm in the form of intoxicated, uncooperative arrestees not receiving proper medical screenings,

25

being improperly placed in poorly monitored sobering cells, and dying at the jail as a result.” (Id.)

26

According to plaintiffs, such awareness was “demonstrated by [the County’s] own written policies

27

that reflect standard jail practices, other deaths at the jail and elsewhere, and their administrative

28

review of the Cotton incident, after which they failed to take corrective action in the face of known
24

1

training and policy deficiencies.” (Id at 40-41.) In contrast, defendants seek summary judgment on

2

the grounds that the evidence shows that the County jail policies with respect to medical services

3

were compliant with Institute for Medical (IMQ) standards, and that each of the County officers

4

involved in this incident acted in compliance with their training and with jail policy. (Dkt. No. 94

5

at 16-18.) Defendants also argue that its sobering cell policies and practices were sufficient. (See

6

id. at 20-22.)

7

When viewed in the light most favorable to plaintiff, the Court finds that, at a minimum,

8

triable issues of fact exist concerning whether (1) the jail’s medical screening practices led to

9

Borges being improperly placed in the sobering cell, (2) the jail’s sobering cell monitoring policies
were followed in this case, and (3) the jail’s sobering cell monitoring policies were sufficient to

11
United States District Court
Northern District of California

10

ensure an inmate’s medical condition was not rapidly deteriorating.

12

First, a jury could find that the County practice of placing an “uncooperative” inmate in the

13

sobering cell prior to a medical evaluation by the medical staff was inadequate since, as

14

defendants acknowledge, the medical staff will not go inside the sobering cell to examine the

15

inmate and take his vital signs if he is “uncooperative.” (Dkt. No. 67 at 14.) Such a practice is akin

16

to the policy of not evaluating uncooperative detainees at issue in Gibson, where the court noted

17

that “it was [the decedent’s] urgent medical need that made him combative and uncooperative, and

18

because [the decedent] was combative and uncooperative County policy directed the jail’s medical

19

staff not to evaluate [decedent] to determine if he had an urgent medical need.” 290 F.3d at 1189.

20

Here, of course, the jail’s practice did require a nurse come to “evaluate” Borges from outside the

21

sobering cell, but a jury could find that such a cursory assessment—which did not include the

22

measurement of vital signs—was insufficient to ensure Borges received adequate medical care,

23

when compared to the in-person medical evaluation for “cooperative” detainees.

24

Second, a jury could find that the County’s sobering cell monitoring policy was not

25

followed in this case. The policy required direct visual observation of inmates held in sobering

26

cells every 15 minutes, and required the officer observing the inmate to document his or her

27

observations on the sobering cell log. (See Dkt. No. 68-1 at 48.) In addition, officers are supposed

28

to “check the inmate’s breathing during cell checks to determine that breathing is regular.” (Id.)
25

1

County defendants argue that this policy was followed here. While it is undisputed that County

2

officers did check the sobering cell once every 15 minutes as required, Borges’s last movement

3

detectable by the sobering cell camera was at 3:16 or 3:17 p.m., nearly 45 minutes prior to when

4

County officers noted that Borges was nonresponsive and began to provide emergency medical

5

care. During the interim, whether the three sobering cell checks ranged in time from 1 to 2.6

6

seconds, as plaintiff argues, or lasted as long as 3.238 seconds, as defendant argues, a jury could

7

find that these checks were not actually long enough for an officer to determine that Borges’s

8

breathing was regular, as required by County policy. (See Dkt. No. 78 at 28-29.)
Third, if a jury found that the County’s sobering cell monitoring policy was followed in

10

this case, that jury could also still find that the policy was insufficient to ensure that an inmate’s

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United States District Court
Northern District of California

9

condition was not rapidly deteriorating, requiring medical assistance. For example, a jury could

12

agree with plaintiff’s expert that the County is “neglectful for failing to have adequate policies

13

regarding an audio monitoring system in the subject sobering cell,” Dkt. No. 72 at 5, regardless of

14

whether a “requirement” existed to use an audio monitoring system in the sobering cell. Thus,

15

when viewed in the light most favorable to plaintiffs, the Court finds that triable issues exist as to

16

whether these practices, policies, and failures were constitutionally adequate.

17

For the County to be liable for “deliberate indifference,” though, it must also have been

18

aware of the risk that its policies or failures presented. Gibson, 290 F.3d at 1190. “[T]his inquiry is

19

subject to demonstration in the usual ways, including inference from circumstantial evidence,”

20

such as other written policies demonstrating notice, common knowledge that a scenario was likely

21

to recur, or a practice of ignoring a need in the past. See id. at 1190-91. (citation and internal

22

quotation marks omitted). “Municipalities’ continued adherence to an approach that they know or

23

should know has failed to prevent tortious conduct by employees may establish the conscious

24

disregard for the consequences of their action—the ‘deliberate indifference’—necessary to trigger

25

municipal liability.” Board of Comm’rs v. Brown, 520 U.S. 397, 407 (1997) (citations and internal

26

quotation marks omitted). In this case, as in Gibson, “a plethora of circumstantial evidence could

27

lead a reasonable jury to infer that the County was aware of the risk that its policies presented.”

28

Gibson, 290 F.3d at 1190.
26

1

As in Gibson, “a jury could conclude that County policymakers knew that inevitably some

2

prisoners arrive at the jail with urgent health problems requiring hospitalization. The fact that

3

County policy requires that detainees be checked for medical conditions requiring immediate

4

attention indicates such knowledge.” Id. Second, a jury could find that the County’s own policy

5

makes it clear that it was aware of the risks of not properly assessing an inmate: if a “proper

6

assessment and/or vital signs cannot be obtained, the arrestee will be refused pending medical

7

clearance from the hospital.” (Dkt. No. 79 at AMF 309.) Third, at least one other death in 2010

8

involving another inmate from a drug overdose occurred, which a jury could find put the County

9

on notice of the need for emergency medical care for inmates with serious drug overdoses. (Dkt.
No. 79 at AMF 501-502.) Fourth, another inmate, Martin Cotton, died in the sobering cell in 2007

11
United States District Court
Northern District of California

10

after receiving an incomplete medical screening, and after County officers failed to intervene

12

despite Cotton spinning, rocking, lying down, attempting to stand but falling down, shadow

13

boxing from a seated position, and hitting his head while in the sobering cell. (Dkt. No. 77-8 at 7.)

14

Cotton’s activity in the sobering cell was followed by a period of approximately forty minutes

15

were County officers noted only that he was “on stomach/breathing” in the sobering cell before

16

medical care was summoned. (Id. at 2.) A jury could find that Cotton’s death also made the

17

County aware of the dangers of inadequate monitoring of inmates in the sobering cell.

18

Finally, triable issues exist as to whether the fourth element for Monell liability is

19

established here. Plaintiff has proffered sufficient evidence to support a finding that the County’s

20

policies, practices, and failures were a “moving force” behind Borges’s death. As previously noted,

21

plaintiff’s medical expert believes Borges could have been saved at any point prior to 3:45 p.m. if

22

he had been brought to the emergency room rather than locked up and left in the sobering cell.

23
24
25
26

Thus, defendants’ motion for summary judgment as to the section 1983 claim against the
County is DENIED.
2. Legal Standard and Analysis as to Sheriff Downey
An official who is a supervisor may be held liable under section 1983 “if there exists either

27

(1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal

28

connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v.
27

1

Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (citation and internal quotation marks omitted). “The

2

requisite causal connection can be established . . . by setting in motion a series of acts by others, . .

3

. or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or

4

reasonably should have known would cause others to inflict a constitutional injury.” Id. (citations

5

and internal quotation marks omitted) (alterations in original). “A supervisor can be liable in his

6

individual capacity for his own culpable action or inaction in the training, supervision, or control

7

of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that

8

showed a reckless or callous indifference to the rights of others.” Id. (citation and internal

9

quotation marks omitted).

10

For the reasons outlined in the previous section regarding the County’s policies and

United States District Court
Northern District of California

11

failures, and drawing all reasonable inferences in favor of plaintiff, a jury could find that Sheriff

12

Downey was aware of the substantial risks posed by intoxicated inmates and inadequate

13

monitoring of the sobering cell, but failed to implement adequate training on existing policies

14

and/or to modify existing policies to make them constitutionally adequate. 6

15
16

Thus, defendants’ motion for summary judgment as to the section 1983 claim against
Sheriff Downey is DENIED.

17

C.

Americans with Disabilities Act and Rehabilitation Act Claims

18

Plaintiff brings claims under the Americans with Disabilities Act and Rehabilitation Act

19

against the City and County for failing to accommodate Borges’s schizophrenia in a reasonable

20

manner, and for discriminating against him based on his disability. (Dkt. No. 78 at 41.)7 Title II of

21

the Americans with Disabilities Act requires public entities to provide equal access to services,

22

activities, and programs. 42 U.S.C. § 12132. The Rehabilitation Act similarly bars discrimination

23

on the basis of disability in the provision of benefits by programs receiving federal funding. 29

24
6

25
26
27
28

At the hearing on this motion, on December 13, 2016, the parties also agreed that Sheriff
Downey’s liability rose or fell with the County’s Monell liability.
7

Although plaintiff’s complaint also alleges discrimination based on a possible drug
addiction, this was not addressed by plaintiff in her opposition to the motion for summary
judgment. Accordingly, it is not considered as a basis for the Americans with Disabilities Act and
Rehabilitation Act claims here.
28

1

U.S.C. § 794. To establish liability, plaintiff must show that Borges was (1) a qualified individual

2

with a disability; (2) who was excluded from or denied services, programs or activities, or was

3

otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or

4

discrimination was by reason of his disability. Weinrich v. L.A. County Metro. Transp. Auth., 114

5

F.3d 976, 978 (9th Cir. 1997).

6

Although plaintiff has presented sufficient evidence to show that a jury could find that
Borges suffered from schizophrenia, she has not offered any evidence from which a jury could

8

find that Borges was discriminated against on the basis of his schizophrenia. Plaintiff has also

9

presented no authority that a failure to screen adequately for mental health treatment immediately

10

upon arrival at the County jail amounts to a discriminatory policy under either the Americans with

11
United States District Court
Northern District of California

7

Disabilities Act or the Rehabilitation Act.

12
13

Thus, defendants’ motion for summary judgment as to the Americans with Disabilities Act
and Rehabilitation Act claims against the City and County is GRANTED.

14

D.

15

Plaintiff brings state law claims for failure to summon medical care and negligence against

16

all defendants. The Court addresses each in turn.
1. Failure to Summon Medical Care

17
18

State Law Claims for Failure to Summon Medical Care and Negligence

In general, public entities in California are not liable for tortious injury unless liability is

19

imposed by statute. Cal. Gov. Code § 815. “[S]overeign immunity is the rule in California;

20

governmental liability is limited to exceptions specifically set forth by statute.” Castaneda v.

21

Dep’t of Corr. & Rehab., 212 Cal. App. 4th 1051, 1069-70 (2013) (citation and internal quotation

22

marks omitted). However, with regard to “prisoners,”8 “[s]ection 845.6 both affirms the public

23

entity immunity to liability for furnishing medical care [to prisoners], and creates a narrow

24

exception to that immunity.” Id. at 1070. Section 845.6 states in relevant part:

25
26
8

27

At the hearing on this motion, on December 13, 2016, the parties agreed that Borges was
a “prisoner,” for the purposes of the statute, after entering the County jail.

28
29

1
2
3
4
5
6

Neither a public entity nor a public employee is liable for injury
proximately caused by the failure of the employee to furnish or obtain medical
care for a prisoner in his custody; but, except as otherwise provided by Sections
855.8 and 856 [concerning mental illness and addiction], a public employee, and
the public entity where the employee is acting within the scope of his
employment, is liable if the employee knows or has reason to know that the
prisoner is in need of immediate medical care and he fails to take reasonable
action to summon such medical care.
In other words, section 845.6 imposes liability on the public employee and public entity

7

when: (1) the public employee “knows or has reason to know of the need,” (2) for a prisoner’s

8

“immediate medical care,” and (3) “fails to take reasonable action to summon such medical care.”

9

Castaneda, 212 Cal. App. 4th at 1070. Liability under section 845.6 is established by “serious and
obvious medical conditions requiring immediate care.” Watson v. California, 21 Cal. App. 4th

11
United States District Court
Northern District of California

10

836, 841 (1993). This is an objective standard. See Lucas v. County of Los Angeles, 47 Cal. App.

12

4th 277, 288-90 (1996).

13

As set forth in section IV(A)(3)(b)(ii), a reasonable jury could find that County officers

14

Corporal Bittner, Corporal Hammer, Officer Swim, and Supervising Correctional Deputy

15

Hershberger knew of or should have known of Borges’s immediate need for medical care, but

16

failed to summon medical care. Thus, defendants’ motion for summary judgment as to the section

17

845.6 claim against the County, Corporal Bittner, Corporal Hammer, Officer Swim, and

18

Supervising Correctional Deputy Hershberger is DENIED.

19

Likewise, as set forth in section IV(A)(3)(c), a reasonable jury could not find that Corporal

20

Basler knew or should have known of Borges’s immediate need for medical care. Thus,

21

defendants’ motion for summary judgment as to the section 845.6 claim against Corporal Basler is

22

GRANTED.

23

Finally, by its own terms, section 845.6 applies only to a “prisoner.” As plaintiff herself

24

has conceded, Borges was not a prisoner before entering the County jail. (See Dkt. No. 78 at 32-

25

33.) Thus, section 845.6 is not applicable to the City or City officers in this case. Defendants’

26

motion for summary judgment as to the section 845.6 claim against the City and City officers is

27

therefore GRANTED.

28
30

2. Negligence

1
2

Plaintiff concedes that section 844.6(a)(2) immunizes County defendants from a

3

negligence claim. (Dkt. No. 78 at 38.) Thus, defendants’ motion for summary judgment as to the

4

negligence claim against the County and the County officers is GRANTED.
With regard to the City, plaintiff argued at the hearing on this motion, on December 13,

5
6

2016, that section 815 only immunizes the City against a direct claim of negligence, and not a

7

negligence claim based on vicarious liability for the actions of its employees. Defendants

8

presented no argument to the contrary either at the hearing or in their motion. As set forth in

9

section IV(A)(2), however, the Court has found that plaintiff has not offered sufficient evidence to
show that the City officers acted unreasonably. Thus, defendants’ motion for summary judgment

11
United States District Court
Northern District of California

10

as to the negligence claim against the City and City officers is GRANTED.

12

IV.

CONCLUSION

13

For the reasons stated herein,

14

(A)

Defendants’ Motion to Exclude Expert Testimony is DENIED.

15

(B)

Defendants’ Motion for Summary Judgment is GRANTED as to the following

16

claims:

17

1. Defendants’ motion for summary judgment as to the Fourth Amendment

18
19
20

unreasonable seizure claim against the City officers is GRANTED.
2. Defendants’ motion for summary judgment as to the Fourth Amendment denial
of medical care claim for City officers is GRANTED.

21

3. Defendants’ motion for summary judgment as to the Fourth and Fourteenth

22

Amendment denial of medical care claims against County officer Corporal

23

Basler is GRANTED.

24

4. Defendants’ motion for summary judgment as to the Fourteenth Amendment

25

familial interference claim against the City officers and County officer Corporal

26

Basler is GRANTED.

27

5. Defendants’ motion for summary judgment as to the section 1983 claim for

28

municipal and supervisory liability against the City of Eureka is GRANTED.
31

6. Defendants’ motion for summary judgment as to the Americans with

1
2

Disabilities Act and Rehabilitation Act claims against the City and County is

3

GRANTED.
7. Defendants’ motion for summary judgment as to the section 845.6 claim

4

against the City, City officers, and County officer Corporal Basler is GRANTED.

5

8. Defendants’ motion for summary judgment as to the negligence claim against

6

the County, County officers, City, and City officers is GRANTED.

7
8

(C)

Defendants’ Motion for Summary Judgment is DENIED as to the following claims:
1. Defendants’ motion for summary judgment as to the Fourth and Fourteenth

9

Amendment denial of medical care claims against the County officers Corporal

11
United States District Court
Northern District of California

10

Bittner, Corporal Hammer, Officer Swim, and Supervising Correctional Deputy

12

Hershberger is DENIED.
2. Defendants’ motion for summary judgment as to Fourteenth Amendment

13
14

familial interference claim against County officers Corporal Bittner, Corporal

15

Hammer, Officer Swim, and Supervising Correctional Deputy Hershberger is

16

DENIED.
3. Defendants’ motion for summary judgment as to the section 1983 claim for

17
18

municipal and supervisory liability against the County and Sheriff Downey is

19

DENIED.
4. Defendants’ motion for summary judgment as to the section 845.6 claim

20
21

against the County and County officers Corporal Bittner, Corporal Hammer,

22

Officer Swim, and Supervising Correctional Deputy Hershberger is DENIED.

23

(D)

Plaintiff’s Fourteenth Amendment claim against City officers for denial of medical

24

care is DISMISSED AS MOOT.

25

This order terminates Docket Nos. 67 and 72.

26

IT IS SO ORDERED.

27
28

Dated: January 25, 2017

______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
32