Borges v. City of Eureka et al

Filing 268

JUDGMENT ON SPECIAL VERDICT. Signed by Judge Yvonne Gonzalez Rogers on 10/30/17. (fs, COURT STAFF) (Filed on 10/30/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CASE NO.: 15-CV-00846 YGR

STEPHANY BORGES, individually and as
successor-in-interest to Daren Borges,

JUDGMENT ON SPECIAL VERDICT

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Plaintiff,

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vs.

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COUNTY OF HUMBOLDT,
SHERIFF MICHAEL DOWNEY,
TIM HERSHBERGER, TERRI BITTNER,
TIM HAMMER and DAVID SWIM,

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Defendants.

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This action came on regularly for trial on August 18, 2017, in Courtroom 1 of the United

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States District Court, Northern District of California, Eureka Division, Honorable Yvonne

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Gonzalez Rogers, presiding. The Plaintiff in this Case, No. CV 15-00846-YGR, Stephany

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Borges, individually and as successor-in-interest to Daren Borges, was represented by Dale K.

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Galipo and John Fattahi. Defendants County of Humboldt, David Swim, Terri Bittner, Tim

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Hammer, Tim Hershberger and Michael Downey were represented by Nancy K. Delaney,

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Nicholas R. Kloeppel and Amy A. Hunt of Mitchell, Brisso, Delaney & Vrieze.

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A jury of eight persons was regularly empaneled and sworn. Witnesses were sworn and

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testified. After hearing the evidence, the jury was instructed by the Court and the Case was

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submitted to the jury. The parties stipulated that all individual defendants acted in the course and

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scope of their public employment. The jury deliberated and thereafter returned into Court with its

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special verdict as follows:

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Verdict Form

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First Claim

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Did Stephany Borges establish that the defendant listed below deprived Daren Borges of

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his rights to adequate medical care in violation of the Due Process Clause of the Fourteenth

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Amendment:

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Tim Hershberger

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Terri Bittner

X

Yes

No

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Tim Hammer

X

Yes

No

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David Swim

X

Yes

No

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Proceed to the Second Claim

Yes

X

No

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Second Claim
Did Stephany Borges establish that the defendant listed below deprived her of the right to

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be free from interference with familial association in violation of the Fourteenth Amendment:

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Tim Hershberger

Yes

X

No

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Terri Bittner

Yes

X

No

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Tim Hammer

Yes

X

No

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David Swim

Yes

X

No

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If you answered “Yes” to any question under the First Claim or the Second Claim then
proceed to the Third Claim.

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Alternatively, if you answered “No” to all defendants under the First Claim and the
Second Claim proceed to the Fourth Claim.

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Third Claim

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Did Stephany Borges establish that the County of Humboldt is liable under Section 1983
as a result of either: (a) an official policy, practice, or custom, or (b) the failure to train:
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Yes

No

Did Stephany Borges establish that Michael Downey is liable under Section 1983 as a

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supervisor:

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Yes

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X

No

Proceed to the Fourth Claim.

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Fourth Claim

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Did Stephany Borges establish that the defendant listed below deprived Daren Borges of

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his rights to have medical care summoned in violation of California Government Code Section

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845.6:

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Tim Hershberger

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Terri Bittner

X

Yes

No

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Tim Hammer

X

Yes

No

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David Swim

X

Yes

No

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Yes

X

No

If you answered “Yes” to any question under any of the Claim (First, Second, Third or

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Fourth) then proceed to Damages. Alternatively, if you answered “No” to all of the Claims,

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please sign and date the last page of this verdict form, then return to the Court.

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Damages

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We, the jury, award damages in the following amount:

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$2,500,000.00”

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Special Verdict Form

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For any defendant for whom you answered “Yes” for the First Claim and/or the Second

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Claim, do you find by a preponderance of the evidence that the defendant engaged in the

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conduct with malice, oppression, or reckless disregard of Stephany Borges’ or Daren Borges’

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rights:

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Tim Hershberger

Yes

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Terri Bittner

Yes

X

No

Not applicable

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Tim Hammer

Yes

X

No

Not applicable

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David Swim

Yes

X

No

Not applicable”

No

X

Not applicable

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NOW THEREFORE IT IS ORDERED, ADJUDGED AND DECREED that: Plaintiff

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Stephany Borges shall recover the sum of $2,500,000.00 from Defendants County of Humboldt,

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Terri Bittner, Tim Hammer, and David Swim, plus post-judgment interest, costs, and attorneys’

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fees as provided by law. Plaintiff shall file any application for costs or attorneys’ fees within 35

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days of entry of judgment, or within 7 days of the filing of any reply in support of any Rule 50(b)

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motion, whichever is later.

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IT IS ALSO ORDERED, ADJUDGED AND DECREED that Plaintiff shall take nothing

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from Defendants Timothy Hershberger and Michael Downey, and all claims against said

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defendants are dismissed. Plaintiff shall take nothing on her claims for interference with familial

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association under the Fourteenth Amendment, and all such claims are dismissed. Plaintiff shall

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take nothing on her prayer for punitive damages, and any claim for such damages is dismissed.

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DATED: ______________
October 30, 2017

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____________________________________
Honorable Yvonne Gonzalez Rogers
United States District Court

APPROVED AS TO FORM:

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By:

/s/ Nancy K. Delaney
Nancy K. Delaney, Attorneys for County Defendants

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