Pajas et al v. County of Monterey et al

Filing 288

JOINT PRETRIAL STATEMENT AND ORDER (adopting 182 as modified by the Court). Signed by Judge Beth Labson Freeman on 2/6/2019. (blflc1S, COURT STAFF) (Filed on 2/6/2019)

1
2
3
4
5
6
7
8
9
10
11

Dan Stormer, Esq. [S.B. #101967]
Cindy Pánuco, Esq. [S.B. #266921]
HADSELL STORMER & RENICK LLP
128 N. Fair Oaks Avenue
Pasadena, California 91103
Telephone: [phone]
Facsimile: [phone]
Emails: [e-mail]
[e-mail]
Lori Rifkin, Esq. [S.B. # 244081]
HADSELL STORMER & RENICK LLP
4300 Horton Street, #15
Emeryville, CA 94608
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiffs
[Additional Counsel cont. on next page]

12
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

13
14
15
16
17

ESTATE OF MARK VASQUEZ PAJAS, SR.,
deceased, by and through ROSEMARY LOPEZ,
as Administrator; ROSEMARY LOPEZ;
YVETTE PAJAS; MARK PAJAS, JR.; JANEL
PAJAS; XAVIER PAJAS,

Case No.: 16-CV-00945-BLF
[Related to Case No.: CV-14-05481-BLF]
[Assigned to the Honorable Beth Labson Freeman Courtroom 3]

Plaintiffs,

18
19

vs.

JOINT PRETRIAL STATEMENT AND
[PROPOSED] ORDER

20

COUNTY OF MONTEREY; CALIFORNIA
FORENSIC MEDICAL GROUP; CHRISTINA
KAUPP; and DOES 1-20,

DATE:
TIME:
CRTRM:

21
22

Defendants.

23
24

December 6, 2018
1:30 p.m.
3

Complaint filed:
Discovery Cut-Off:
Motion Cut-Off:
Trial Date:

February 25, 2016
July 28, 2017
June 28, 2018
January 28, 2019

25
26
27
28
JOINT PRETRIAL STATEMENT AND ORDER
Case No.: 16-CV-00945 -BLF

1

[Additional Counsel cont. from first page]

2

6

CHARLES J. McKee, SBN 152458
County Counsel
MICHAEL R. PHILIPPI, SBN 120967
Deputy County Counsel
County of Monterey
168 West Alisal Street, Third Floor
Salinas, California 93901-2653
Telephone: [phone]
Facsimile: [phone]

7

Attorneys for Defendant COUNTY OF MONTEREY

3
4
5

8
9
10
11
12
13
14

Alan L. Martini, SB No. 77316
SHEUERMAN, MARTINI, TABARI, ZENERE & GARVIN
A Professional Corporation
1033 Willow Street
San Jose, California 95125
Telephone [phone]
Facsimile [phone]
Emails: [e-mail]
Attorneys for Defendants
CALIFORNIA FORENSIC MEDICAL
GROUP, INC. and CHRISTINA KAUPP

15
16
17
18
19
20
21
22
23
24
25
26
27
28
JOINT PRETRIAL STATEMENT AND ORDER
Case No.: 16-CV-00945 -BLF

1

Plaintiffs Estate of Mark Vasquez Pajas, Sr., deceased, by and through Rosemary Lopez, as

2

administrator, Rosemary Lopez, Yvette Pajas, Mark Pajas, Jr., Janel Pajas, and Xavier Pajas and

3

remaining Defendants County of Monterey, California Forensic Medical Group, and Christina Kaupp, by

4

and through their respective attorneys of record (hereafter collectively referred to as “the Parties”),

5

hereby submit their Joint Pretrial Statement and [Proposed] Order pursuant to Judge Labson Freeman’s

6

Standing Order Re Final Pretrial Conference – Jury Trial, revised April 10, 2014.

7

1.

The Action.

8

a.

9

All parties have been served. The remaining parties in this action are:

10

•

The Parties.

Plaintiffs Estate of Mark Vasquez Pajas, Sr., deceased, by and through Rosemary Lopez,

11

as administrator, Rosemary Lopez, Yvette Pajas, Mark Pajas, Jr., Janel Pajas, and Xavier

12

Pajas

13

•

14

Defendants County of Monterey, California Forensic Medical Group, and Christina
Kaupp.

15

The following Defendants were dismissed pursuant to joint stipulation:

16

•

17

The following Defendants were granted summary judgment:

18

•

Sheriff Steve Bernal. (Dkt. No. 176.)

19

b.

Substance of the Action.

20

Plaintiffs’ First Amended Complaint was filed on August 5, 2016 (Dkt. No. 63). The court

Defendants King City and Officer Steve Orozco.

21

entered summary judgment in favor of Sheriff Bernal in his individual capacity on November 5, 2018.

22

(Dkt. No. 176). Plaintiffs’ remaining claims to be decided by the jury are:

23
24
25

1.

Plaintiffs’ Fourteenth Amendment claim for Failure to Protect from Harm
against the County, CFMG, and Kaupp.

To establish deliberate indifference for failure to protect from substantial risk of serious harm,

26

pretrial detainees like Mark Pajas must prove the following elements by a preponderance of the evidence:

27

(1) Mr. Pajas faced a substantial risk of serious harm; (2) Defendant was deliberately indifferent to that

28

risk, that is, the defendant knew of it and disregarded it by failing to take reasonable measures to address
JOINT PRETRIAL STATEMENT AND ORDER

-1-

Case No.: 16-CV-00945-BLF

1
2

it; and (3) The acts and/or failures to act of the defendant caused harm to Mr. Pajas.
Authority: Ninth Circuit Manual of Model Jury Instruction No. 9.25; Farmer v. Brennan, 511

3

U.S. 825, 832 (1994); Castro v. Cnty. of L.A., 833 F.3d 1060, 1070-73 (9th Cir. 2016); Lemire v.

4

California Dep't of Corr. & Rehab., 726 F.3d 1062, 1077-78 (9th Cir. 2013) (holding that appropriate

5

deliberate indifference inquiry for protection from harm analysis evaluates whether policymakers knew

6

that policies would pose a risk to someone in inmate’s situation, not simply whether they were

7

subjectively aware of the decedent’s specific needs); Hydrick v. Hunter, 500 F.3d 978, 994 (9th Cir.

8

2007) (rights of detainees under Fourteenth Amendment are at least coextensive with those applicable to

9

prisoners under the Eighth Amendment); Estate of Abdollahi v. Cnty. of Sacramento, 405 F. Supp. 2d

10

1194, 1206 (E.D. Cal. 2005) (substantial risk of harm from heroin detoxification established when county

11

knew some inmates are heroin users or addicts, knew that withdrawal is a health problem requiring

12

medical attention, and did not adopt sufficient detoxification procedures).

13

County Defendants’ Statement: Plaintiffs’ misstate the law with regard to the cases cited.

14

Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1077-78 (9th Cir. 2013) applies to claims

15

against individual Defendants sued in their individual capacity. Defendant Bernal is sued in his official

16

capacity, not his individual capacity. Estate of Abdollahi v. Cnty. of Sacramento, 405 F. Supp. 2d 1194,

17

1206 (E.D. Cal. 2005) does not apply to this case, since the Court’s ruling was based on the fact that

18

heroin addicts were housed in general population and not detoxification cells. Here it is undisputed that

19

Mr. Pajas was held in a detoxification cell.

20

Defendants CFMG and Kaupp’s Statement: The elements for a pretrial detainee’s Fourteenth

21

Amendment claim against an individual for deprivation of adequate medical care or failure to protect

22

from harm are: “(I) the defendant made an intentional decision with respect to the conditions under which

23

the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious

24

harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a

25

reasonable official in the circumstances would have appreciated the high degree of risk involved -

26

making the consequences of the defendant’s conduct obvious; and (v) by not taking such measures, the

27

defendant caused that plaintiff’s injuries.” Gordon v. Cty of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018)

28

(medical care claim); see also Castro, 833 F.3d at 1071 (failure to protect claim). “With respect to the
JOINT PRETRIAL STATEMENT AND ORDER

-2-

Case No.: 16-CV-00945-BLF

1

third element, the defendant’s conduct must be objectively unreasonable.” Gordon, 888 F.3d at 1125

2

(quotation marks and citation omitted).

3

The elements of a pretrial detainee’s Fourteenth Amendment claim against an entity defendant for

4

deprivation of adequate medical care or failure to protect from harm are those set forth in Monell and its

5

progeny. Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016) (citing Montell v. Dep’t of

6

Soc. Servs. of the City of New York, 436 U.S. 658 (1978)). A detainee must show (1) “a direct causal link

7

between a municipal policy or custom and the alleged constitutional deprivation,” and (2) “demonstrate

8

that the custom or policy was adhered to with deliberate indifference to the constitutional rights of the

9

jail’s inhabitants.” Castro, F.3d at 1076-76. The deliberate indifference standard for municipalities is an

10

objective standard. Castro, 833 F.3d at 1076. “[A]n objective standard applies to municipalities ‘for the

11

practical reason that government entities, unlike individuals, do not themselves have states of mind.’”

12

Mendiola-Martinez, 836 F.3d at 1248 (quoting Castro, 833 F.3d at 1076). “This Castro objective

13

standard is satisfied when ‘a § 1983 plaintiff can establish that the facts available to city policymakers

14

puts them on actual or constructive notice that the particular omission [or act] is substantially certain to

15

result in the violation of the constitutional rights of their citizens.’” Id. at 1248-49 (quoting Castro, 833

16

F.3d at 1076 (alteration in original).

17
18
19

2.

Plaintiffs’ Fourteenth Amendment claims against the County, CFMG, and
Kaupp for Failure to Provide Adequate Medical Care.

To establish deliberate indifference for failure to provide adequate medical care, under the

20

Fourteenth Amendment to the United States Constitution, pretrial detainees like Mark Pajas must prove

21

the following elements by a preponderance of the evidence: (1) Mr. Pajas had a serious medical need; (2)

22

Defendant was deliberately indifferent to that serious medical need, that is, the defendant knew of it and

23

disregarded it by failing to take reasonable measures to address it; and (3) The acts and/or failures to act

24

by the defendant caused harm to Mr. Pajas.

25

Authority: Ninth Circuit Model Jury Instruction No. 9.25; Brown v. Plata, 563 U.S. 493, 501-02

26

(2011) (inmates have a right to adequate treatment for serious medical and mental health needs under the

27

Fourteenth and Eighth Amendments); Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir.

28

2018); Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010) (courts evaluating claims of
JOINT PRETRIAL STATEMENT AND ORDER

-3-

Case No.: 16-CV-00945-BLF

1

pretrial detainees under Fourteenth Amendment use same analytical framework for those sentenced under

2

Eight Amendment); Hydrick v. Hunter, 500 F.3d 978, 994 (9th Cir. 2007) (rights of detainees under

3

Fourteenth Amendment are at least coextensive with those applicable to prisoners under the Eighth

4

Amendment); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 2001) Hernandez, 110 F. Supp. 3d at

5

948.

6

Defendants CFMG and Kaupp’s Statement: The elements for a pretrial detainee’s Fourteenth

7

Amendment claim against an individual for deprivation of adequate medical care or failure to protect

8

from harm are: “(I) the defendant made an intentional decision with respect to the conditions under which

9

the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious

10

harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a

11

reasonable official in the circumstances would have appreciated the high degree of risk involved -

12

making the consequences of the defendant’s conduct obvious; and (v) by not taking such measures, the

13

defendant caused that plaintiff’s injuries.” Gordon v. Cty of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018)

14

(medical care claim); see also Castro, 833 F.3d at 1071 (failure to protect claim). “With respect to the

15

third element, the defendant’s conduct must be objectively unreasonable.” Gordon, 888 F.3d at 1125

16

(quotation marks and citation omitted).

17

The elements of a pretrial detainee’s Fourteenth Amendment claim against an entity defendant for

18

deprivation of adequate medical care or failure to protect from harm are those set forth in Monell and its

19

progeny. Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016) (citing Montell v. Dep’t of

20

Soc. Servs. of the City of New York, 436 U.S. 658 (1978)). A detainee must show (1) “a direct causal link

21

between a municipal policy or custom and the alleged constitutional deprivation,” and (2) “demonstrate

22

that the custom or policy was adhered to with deliberate indifference to the constitutional rights of the

23

jail’s inhabitants.” Castro, F.3d at 1076-76. The deliberate indifference standard for municipalities is an

24

objective standard. Castro, 833 F.3d at 1076. “[A]n objective standard applies to municipalities ‘for the

25

practical reason that government entities, unlike individuals, do not themselves have states of mind.’”

26

Mendiola-Martinez, 836 F.3d at 1248 (quoting Castro, 833 F.3d at 1076). “This Castro objective

27

standard is satisfied when ‘a § 1983 plaintiff can establish that the facts available to city policymakers

28

puts them on actual or constructive notice that the particular omission [or act] is substantially certain to
JOINT PRETRIAL STATEMENT AND ORDER

-4-

Case No.: 16-CV-00945-BLF

1

result in the violation of the constitutional rights of their citizens.’” Id. at 1248-49 (quoting Castro, 833

2

F.3d at 1076 (alteration in original).

3

3.

4

Plaintiffs’ Fourteenth Amendment Substantive Due Process Claims Against
the County, CFMG, and Kaupp.

5

In order to prove that defendant deprived plaintiffs of their rights to the companionship of, and a

6

relationship with, their husband/father, plaintiffs must prove the following elements by a preponderance

7

of the evidence: (1) Defendant was deliberately indifferent to Mark Pajas’s serious medical needs and/or

8

the substantial risk that he would suffer serious harm, including but not limited to death; (2) The acts

9

and/or failures to act of the defendant prevented Plaintiffs from the companionship of and having a

10

relationship with their husband/father.

11

Authority: Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011) (“The substantive

12

due process right to family integrity or to familial association is well established.”); United States v. Wolf

13

Child, 699 F.3d 1082, 1091 (9th Cir. 2012) (“A parent has a fundamental liberty interest in

14

companionship with his or her child.” (citation and quotation omitted)); Wilkinson v. Torres, 610 F.3d

15

546, 554 (9th Cir. 2010) (Parents and children may assert Fourteenth Amendment substantive due

16

process claims if they are deprived of their liberty interest in the companionship and society of their child

17

or parent through official conduct and where circumstances are such that actual deliberation is practical,

18

an officer’s deliberate indifference meets the “shock the conscience” standard of the Fourteenth

19

Amendment); Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (permitting parents to

20

assert a familial association claim where their decedent, a pre-trial detainee, committed suicide while in

21

prison).

22

4.

Plaintiffs’ Wrongful Death Claim Against CFMG

23

In order to establish their wrongful death claim against CFMG, Plaintiffs must prove by a

24

preponderance of the evidence that CFMG’s unconstitutional failures to protect Mr. Pajas from harm and

25

to provide him adequate medical care constituted (1) a wrongful act or neglect that (2) caused (3) the

26

death of Mark Pajas, the existence of which establishes liability for wrongful death.

27
28

Authority: See Cal. Civ. P. Code § 377.60; Norgart v. Upjohn Co., 21 Cal. 4th 383, 390 (1999);
Lattimore v. Dickey 239 Cal.App.4th 959, 968 (2015).
JOINT PRETRIAL STATEMENT AND ORDER

-5-

Case No.: 16-CV-00945-BLF

1

County Defendants’ Statement: Plaintiffs’ misstate the law with regard to the cases cited.

2

Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1077-78 (9th Cir. 2013) applies to claims

3

against individual Defendants sued in their individual capacity. Defendant Bernal is sued in his official

4

capacity, not his individual capacity. Estate of Abdollahi v. Cnty. of Sacramento, 405 F. Supp. 2d 1194,

5

1206 (E.D. Cal. 2005) does not apply to this case, since the Court’s ruling was based on the fact that

6

heroin addicts were housed in general population and not detoxification cells. Here it is undisputed that

7

Mr. Pajas was held in a detoxification cell.

8
9

As to the County of Monterey, to establish a Monell claim, Plaintiffs must prove (1) a direct
causal link between a County custom or policy and the deprivation of Mr. Pajas’ constitutional rights to

10

adequate medical care and/or protection from harm, and (2) the custom or policy was adhered to with

11

deliberate indifference to the constitutional rights of jail inhabitants. Castro v. Cty. Of Los Angeles, 833

12

F.3d 1060 (9th Cir. 2016). Under California law, 15 CCR § 1056, welfare checks for inmates housed in a

13

sobering cell “shall be conducted no less than every half hour.”

14

At least two routes can lead to the conclusion that a municipality has inflicted a constitutional

15

injury. First, a plaintiff can show that a municipality itself violated someone's rights or that it directed its

16

employee to do so. Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, (1994).

17

Alternatively, in limited situations, a plaintiff can demonstrate that a municipality is responsible for a

18

constitutional tort committed by its employee, even though it did not direct the employee to commit the

19

tort. 520 U.S. at 406-7.

20

Under the second route to municipality liability, plaintiff need not allege that the municipality

21

itself violated someone's constitutional rights or directed one of its employees to do so. Instead, a plaintiff

22

can allege that through its omissions the municipality is responsible for a constitutional violation

23

committed by one of its employees, even though the municipality's policies were facially constitutional.

24

However, because Monell held that a municipality may not be held liable under a theory of respondeat

25

superior, a plaintiff must show that the municipality's deliberate indifference led to its omission and that

26

the omission caused the employee to commit the constitutional violation. To prove deliberate

27

indifference, the plaintiff must show that the municipality was on actual or constructive notice that its

28

omission would likely result in a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 841, 128 L.
JOINT PRETRIAL STATEMENT AND ORDER

-6-

Case No.: 16-CV-00945-BLF

1

Ed. 2d 811, 114 S. Ct. 1970 (1994). Compared to the more direct route to municipal liability discussed

2

above, "much more difficult problems of proof" are presented in a case where a city employee acting

3

under a constitutionally valid policy violated someone's rights. Board of County Comm'rs, 520 U.S. at

4

406.

5

The County contends that Plaintiffs cannot establish a direct causal link between any policy of the

6

County and/or act or omission of a County employee and Mr. Pajas’ death. The County contends

7

Plaintiffs cannot establish any policy or custom of the County was constitutionally deficient. The County

8

contends Plaintiffs cannot establish that the County adhered to a policy or custom with deliberate

9

indifference to any of Mr. Pajas’ constitutional rights.

10

c.

11

Plaintiffs seek compensatory and punitive damages, funeral and burial costs, and costs of suit,

12

Relief Sought.

including reasonable attorneys’ fees, and any other relief the court deems just and proper.

13

d.

14

This Court has jurisdiction over the federal claims brought in this lawsuit pursuant to 28 U.S.C.

Federal Jurisdiction and Venue.

15

§§ 1331 and 1343. This Court has supplemental jurisdiction over the state law claims asserted herein

16

pursuant to 28 U.S.C. § 1367, because the claims form part of the same case or controversy arising

17

under the United States Constitution and federal law.

18

2.

19

Factual Basis of the Action.
a.

Undisputed Facts.

20

1.

Rosemary Pajas is the wife of Mark Pajas Sr.

21

2.

Yvette Pajas is the daughter of Mark Pajas Sr.

22

3.

Mark Pajas Jr. is the son of Mark Pajas Sr.

23

4.

Janel Pajas is the daughter of Mark Pajas Sr.

24

5.

Xavier Pajas is the son of Mark Pajas Sr.

25

6.

Mark Pajas Sr. was 56 years old on January 19, 2015.

26

7.

The County of Monterey operates the Monterey County Jail (“County Jail”)
through the Monterey County Sheriff’s Office.

27
28

8.

CFMG is the private corporation contracted by Monterey County to provide

JOINT PRETRIAL STATEMENT AND ORDER

-7-

Case No.: 16-CV-00945-BLF

1

health care at the County Jail.

2

9.

3

Christina Kaupp is, and was at all relevant times, a registered nurse employed
by CFMG to provide medical care to inmates in the County Jail.

4

10.

In the afternoon of January 19, 2015, Mr. Pajas was arrested in King City.

5

11.

Nearly four hours later, King City Police Officer Orozco took Mr. Pajas to

6

Natividad Medical Center where he was evaluated by Emergency Department

7

physician, Dr. Daniel Wasserman.

8

12.

9

Mr. Pajas informed Dr. Wasserman and the triage nurse that he was a regular
heroin user, had successfully detoxed on numerous previous occasions, and that he

10

would “need help” for the withdrawal symptoms he expected during his

11

incarceration.

12

13.

13

Dr. Wasserman diagnosed Mr. Pajas with cellulitis, leg swelling, and shortness of
breath.

14

14.

Dr. Wasserman’s discharge instructions were that “if [Pajas] develop[s] chest pain

15

or shortness of breath return to the ER immediate.” With these instructions, Dr.

16

Wasserman medically cleared Mr. Pajas for jail at 6:30 p.m.

17

15.

18

Mr. Pajas was then taken to Monterey County Jail where he reported that he used
3/4 grams of heroin daily and that he used heroin earlier that day.

19

16.

During the “intake triage assessment” by a registered nurse employed by CFMG,

20

at 7:00 p.m., Pajas told her that he used “a lot” of heroin “earlier today” and stated,

21

“he is ‘coming down’ and needs meds to help him.”

22

17.

23

Mr. Pajas.

24
25
26

18.
b.

Mr. Pajas was pronounced dead on January 20, 2015 at 2:53 p.m.

Disputed Facts.
1.

27
28

At 4:05 a.m., on January 20, 2015, Deputy Quintero started a sobering cell log for

Whether Mr. Pajas had a serious medical need while in custody of the Monterey
County Jail;

2.

Whether deputies made medical decisions about whether to place inmates in

JOINT PRETRIAL STATEMENT AND ORDER

-8-

Case No.: 16-CV-00945-BLF

1
2

sobering cells;
3.

3
4

Whether Mr. Pajas was undergoing opiate withdrawal at any time during his
incarceration;

4.

Whether the cause of Mr. Pajas’s death was recent ingestion of methamphetamine

5

which triggered an arrythmia superimposed on preexisting significant coronary

6

artery disease and enlarged heart;

7

5.

Whether the cause of Mr. Pajas’s death was opiate detoxification;

8

6.

Whether any of the medications or assessments that Mr. Pajas refused would have

9
10

prevented his death;
7.

11
12

a sobering cell;
8.

13
14

9.

10.

11.

12.

13.

14.

Whether the County failed to ensure that CFMG provided adequate detoxification
treatment to inmates;

15.

27
28

Whether any medical professionals were notified when Deputy Quintero started a
sobering cell log for Mr. Pajas;

25
26

Whether any medical professionals were notified when Mr. Pajas was left in the
sobering cell;

23
24

Whether medical professionals were notified by deputies once an inmate was
placed in a sobering cell;

21
22

Whether deputies failed to conduct welfare checks on Mr. Pajas every fifteen
minutes in accordance with County policy;

19
20

Whether the County failed to ensure that deputies conducted welfare checks every
15 minutes on inmates in detox in accordance with the County’s own policy;

17
18

Whether deputies conducted sobering cell welfare checks every fifteen minutes in
accordance with County policy;

15
16

Whether here deputies made medical decisions about whether to place Mr. Pajas in

Whether medical professionals failed to evaluate and make decisions about
whether to place inmates in sobering cells;

16.

Whether a medical professional failed to evaluate and make a decision about

JOINT PRETRIAL STATEMENT AND ORDER

-9-

Case No.: 16-CV-00945-BLF

1
2

whether to place Mr. Pajas in a sobering cell;
17.

3
4

detoxification protocols;
18.

5
6

19.

20.

21.

22.

Whether a nurse ever consulted with a doctor while Mr. Pajas was on a
detoxification protocol;

23.

15
16

Whether a nurse consulted with a doctor when ordering that Mr. Pajas be placed on
a detoxification protocol;

13
14

Whether Mr. Pajas was placed on a detoxification protocol that was appropriate for
opiate withdrawal;

11
12

Whether CFMG’s opiate detoxification protocol was adequately tailored to address
opiate withdrawal;

9
10

Whether CFMG failed to implement policies to ensure adequate detoxification
treatment to inmates;

7
8

Whether CFMG failed to ensure that nurses consulted with doctors when running

Whether Mr. Pajas refused any medication, or was in medical distress that
prevented him from being able to keep down medication;

24.

17

Whether Mr. Pajas refused any medical treatment, or was in medical distress that
prevented him from being able to accept medical treatment;

18

25.

Whether any CFMG treater provided appropriate treatment to Mr. Pajas;

19

26.

Whether Nurse Kaupp appropriately evaluated Mr. Pajas;

20

27.

Whether Nurse Kaupp provided appropriate medical treatment to Mr. Pajas;

21

28.

Whether Nurse Kaupp required Mr. Pajas to stand up or get up in order to receive

22
23

medical treatment;
29.

24

Whether CFMG treaters, including Nurse Kaupp, complied with CFMG policies
and procedures in treating Mr. Pajas;

25

30.

Whether Nurse Kaupp’s treatment of Mr. Pajas met the medical standard of care;

26

31.

The cause of Mr. Pajas’s death.

27

32.

CFMG is a for-profit corporation.

28

33.

Defendants CFMG and the County had been directly informed since at least 2013

JOINT PRETRIAL STATEMENT AND ORDER

-10-

Case No.: 16-CV-00945-BLF

1
2

of problems with their opiate detoxification policies, procedures, and practices.
34.

On May 23, 2013, a class action lawsuit filed against the County and CFMG

3

alleged various constitutional violations in the conditions of confinement at the

4

Jail, including, inter alia, detoxification procedures.

5

35.

As part of the Hernandez litigation, the parties, including the County and CFMG,

6

jointly retained Mike Puisis, D.O., as a neutral expert to evaluate the adequacy of

7

the medical care being provided to inmates at the Jail.

8

36.

On November 6, 2013, Dr. Puisis issued his Monterey County Jail Health Care

9

Evaluation, concluding that Defendants’ “policies and practices for providing

10

medical care”—including Defendants’ drug and alcohol withdrawal policies—

11

“harmed inmates or placed them at great risk of serious harm.”

12

37.

To address the risk of harm from opiate withdrawal at the Jail, Dr. Puisis’s report

13

concluded that “[d]etoxification procedures at MCJ should be reviewed, policy

14

should be clarified and practice should be strengthened so that detainees who are

15

intoxicated and withdrawing from alcohol or other substances are protected and

16

appropriately managed.”

17

38.

On April 15, 2015, a federal court granted a preliminary injunction against the

18

County of Monterey and CFMG, relying in part on Dr. Pusis’s evaluation, and

19

making the following findings:

20

a.

Defendants’ policies and procedure for chemically dependent inmates

21

permit nurses “to diagnose chemical dependency. This is inappropriate. All

22

patients identified as chemically dependent and thereby placed in

23

detoxification should be diagnosed by a physician or mid-level provider.”

24

b.

“In practice, nurses use a poorly written detoxification protocol which is

25

inconsistently followed. This has the appearance, based on chart reviews,

26

of nurses making up rules as they go along.”

27
28

c.

“The role of physicians in [Defendants’ detoxification] policy is not clear.
The policy appears to allow nurses to manage withdrawal by virtue of using

JOINT PRETRIAL STATEMENT AND ORDER

-11-

Case No.: 16-CV-00945-BLF

1

a protocol which, in practice, is not strictly followed. The policy requires

2

nurses consult with a physician for any one of 8 abnormal signs,” however

3

as of April 2015 this was not happening.

4

d.

As a result, alcohol and other drug withdrawal syndromes are managed by
officers and nurses without physician supervision.”

5
6

e.

Defendants’ Sobering Cell policy, “does not specify who is responsible for

7

placement of detainees in sobering cells and initiating detoxification. In

8

practice officers do this which is not clinically appropriate as this assumes

9

a diagnosis which physicians or mid-level providers should make.”

10

f.

Defendants’ “Sobering Cells-Custody’s Role” policy, “directs officers to

11

house persons in sobering cells deemed by custody to be intoxicated on

12

alcohol or other drugs or a threat to themselves or others. ….The County’s

13

policy places the responsibility for determining whether an inmate should

14

be placed in a sobering cell on deputies who “have no training for this

15

function.”

16

g.

Defendants’ use of custody officers to “identify persons at risk for

17

withdrawal, to evaluate persons who appear to be intoxicated, or to make

18

medical decisions with respect to isolation for this purpose. . . . places

19

detainees at risk for harm.” Id. at 20.

20

39.

In the afternoon of January 19, 2015, Mr. Pajas was arrested in King City. for

21

alleged “reckless driving” on his bicycle, transporting a controlled substance for

22

sale, and resisting arrest.

23

40.

24
25

The CFMG medical staff noted that Pajas was to be placed on “opiate detox” and a
specified series of medications to be taken throughout the following days.

41.

The “opiate detox protocol” includes a plan for treatment including medications

26

for symptom management. The standardized protocol also requires assessment by

27

an RN every four hours and that vital signs be taken once per day.

28

42.

Pajas was placed in a “sobering cell” at approximately 4:17 a.m. on January 20th.

JOINT PRETRIAL STATEMENT AND ORDER

-12-

Case No.: 16-CV-00945-BLF

1

CFMG nursing staff assessed Mr. Pajas in the sobering cell and reported that he

2

had vomited in the cell.

3

43.

4

15 CCR §1056 requires welfare checks of inmates housed in a sobering cell occur
no less than every half hour.

5

44.

Monterey County Sheriff’s Office deputies complied with 15 CCR § 1056 31

6

times out of 32 welfare checks conducted on Mr. Pajas while he was under a

7

sobering cell protocol.

8

45.

9

The County’s internal policies went over and above the requirements of 15 CCR §
1056 and required that deputies complete, and log welfare checks for sobering

10

cells every 15 minutes.

11

46.

12

During the time Mr. Pajas was in the sobering cell, multiple 15-minute welfare
checks were not completed by deputies.

13

47.

Mr. Pajas’s cause of death was sudden cardiac death due to ventricular arrhythmia.

14

48.

All other facts are disputed.

15

c.

16

Defendant County intends to request that the Court take judicial notice of Title 15 of the

17

Requests for Judicial Notice

California Code of Regulations.

18

Plaintiffs intend to request that the Court take judicial notice of the federal court decision

19

Hernandez v. County of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015)

20

3.

21

Disputed Legal Issues.
a.

Plaintiffs’ Claims: Plaintiffs will allege three constitutional claims against Defendants

22

County of Monterey, CFMG and Christina Kaupp R.N., as well as a wrongful death claim against

23

CFMG.

24

1.

25
26

Fourteenth Amendment claim for failure to provide adequate medical care and
failure to protect from harm

The parties dispute whether the County, CFMG and Kaupp were deliberately indifferent to Mark

27

Pajas’s serious medical needs and failed to protect him from harm in violation of the Fourteenth

28

Amendment.
JOINT PRETRIAL STATEMENT AND ORDER

-13-

Case No.: 16-CV-00945-BLF

1

County and CFMG liability: The parties dispute Plaintiffs’ claims against the County and CFMG

2

for Defendants’ failures to protect Mr. Pajas from harm, and failures to provide him medical care in

3

violation of the Fourteenth Amendment.

4

The Fourteenth Amendment protects pretrial detainees from dangerous conditions of

5

confinement, and obligates those who run jails to take reasonable measures to protect those confined

6

within them. Farmer, 511 U.S. at 832; Castro v. Cnty. of L.A., 833 F.3d 1060, 1070-73 (9th Cir. 2016)

7

see also Hydrick v. Hunter, 500 F.3d 978, 994 (9th Cir. 2007) (rights of detainees under Fourteenth

8

Amendment at least coextensive with those of prisoners under Eighth Amendment).

9

The Fourteenth Amendment also requires jail officials to provide pretrial detainees necessary and

10

adequate treatment for serious medical needs. Brown v. Plata, 563 U.S. 493, 501-02 (2011); Estelle v.

11

Gamble, 429 U.S. 97, 104 (1976); Doty v. Cnty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); see Hydrick,

12

500 F.3d at 994. A serious medical need is one which, without treatment, “could result in further

13

significant injury or the unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050,

14

1059 (9th Cir. 2001). Heroin withdrawal is a serious medical need under the Fourteenth Amendment.

15

Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018); Hernandez, 110 F. Supp. 3d at 948.

16

Jail officials who are deliberately indifferent to a serious medical need or substantial risk of

17

serious harm to a pretrial detainee violate the Fourteenth Amendment. Castro, 833 F.3d at 1070. The

18

Ninth Circuit evaluates Fourteenth Amendment claims solely under an objective deliberate indifference

19

standard. Gordon, 888 F.3d at 1124-25 (applying objective standard to inadequate medical care claim);

20

Castro, 883 F.3d at 1070 (applying objective standard to failure-to-protect claim). This objective

21

deliberate indifference standard applies to both Monell and individual liability Fourteenth Amendment

22

claims. Gordon, 888 F.3d at 1124-25.

23

The objective deliberate indifference standard asks whether “there was a substantial risk of

24

serious harm to the plaintiff that could have been eliminated through reasonable and available measures

25

that the [official] did not take, thus causing the injury that plaintiff suffered?” Castro, 833 F.3d at 1070;

26

Gordon, 888 F.3d at 1125. For a failure to protect or inadequate medical care claim, a pretrial detainee

27

does not have to prove a jail official’s state of mind or actual awareness of the level of risk. Gordon, 888

28

F.3d at 1124 & n.4; see also Castro, 833 F.3d at 1069 (no “state-of-mind requirement” independent of
JOINT PRETRIAL STATEMENT AND ORDER

-14-

Case No.: 16-CV-00945-BLF

1

that necessary to show violation of underlying federal right). It is sufficient that Defendants were on

2

actual or constructive notice that the conditions created by their policies, procedures, and/or practices

3

posed a substantial risk of serious harm, but did not take reasonable measures to address that risk. Castro,

4

833 F.3d at 1070-71; see also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248-49 (9th Cir. 2016).

5

Moreover, a detainee need not establish that Defendants were aware of his specific needs, but, rather, that

6

Defendants were on notice that their policies would pose a risk to someone in his situation. Lemire v.

7

California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1077-78 (9th Cir. 2013).

8
9

To establish Monell liability against the County and CFMG, Plaintiffs must show that: (1) “a
direct causal link” between a County custom or policy and the deprivation of Mr. Pajas’ constitutional

10

rights to adequate medical care and/or protection from harm, and (2) “the custom or policy was adhered

11

to with deliberate indifference to the constitutional rights of the jail’s inhabitants.” See Castro v. Cty. of

12

Los Angeles, 833 F.3d 1060, 1075-76. “The custom or policy must be a deliberate choice to follow a

13

course of action . . . made from among various alternatives by the official or officials responsible for

14

establishing final policy with respect to the subject matter in question.” Castro, 833 F.3d at 1075

15

(quotation marks and citation omitted).

16

CFMG claims: The elements of a pretrial detainee’s Fourteenth Amendment claim against an

17

entity defendant for deprivation of adequate medical care or failure to protect from harm are those set

18

forth in Monell and its progeny. Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016)

19

(citing Montell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978)). A detainee must

20

show (1) “a direct causal link between a municipal policy or custom and the alleged constitutional

21

deprivation,” and (2) “demonstrate that the custom or policy was adhered to with deliberate indifference

22

to the constitutional rights of the jail’s inhabitants.” Castro, F.3d at 1076-76. The deliberate indifference

23

standard for municipalities is an objective standard. Castro, 833 F.3d at 1076. “[A]n objective standard

24

applies to municipalities ‘for the practical reason that government entities, unlike individuals, do not

25

themselves have states of mind.’” Mendiola-Martinez, 836 F.3d at 1248 (quoting Castro, 833 F.3d at

26

1076). “This Castro objective standard is satisfied when ‘a § 1983 plaintiff can establish that the facts

27

available to city policymakers puts them on actual or constructive notice that the particular omission [or

28

act] is substantially certain to result in the violation of the constitutional rights of their citizens.’” Id. at
JOINT PRETRIAL STATEMENT AND ORDER

-15-

Case No.: 16-CV-00945-BLF

1
2

1248-49 (quoting Castro, 833 F.3d at 1076 (alteration in original).
Kaupp’s liability: Additionally, the parties dispute Christina Kaupp R.N.’s, individual liability

3

under the Fourteenth Amendment for failing to provide Mr. Pajas with adequate medical care and failing

4

to protect him from harm.

5

Jail officials who are deliberately indifferent to a serious medical need or substantial risk of

6

serious harm to a pretrial detainee violate the Fourteenth Amendment. Castro, 833 F.3d at 1070. The

7

Ninth Circuit evaluates Fourteenth Amendment claims solely under an objective deliberate indifference

8

standard. Gordon, 888 F.3d at 1124-25 (applying objective standard to inadequate medical care claim);

9

Castro, 883 F.3d at 1070 (applying objective standard to failure-to-protect claim). This objective

10

deliberate indifference standard applies to both Monell and individual liability Fourteenth Amendment

11

claims. Gordon, 888 F.3d at 1124-25.

12

The objective deliberate indifference standard asks whether “there was a substantial risk of

13

serious harm to the plaintiff that could have been eliminated through reasonable and available measures

14

that the [official] did not take, thus causing the injury that plaintiff suffered?” Castro, 833 F.3d at 1070;

15

Gordon, 888 F.3d at 1125. For a failure to protect or inadequate medical care claim, a pretrial detainee

16

does not have to prove a jail official’s state of mind or actual awareness of the level of risk. Gordon, 888

17

F.3d at 1124 & n.4; see also Castro, 833 F.3d at 1069 (no “state-of-mind requirement” independent of

18

that necessary to show violation of underlying federal right).

19

To establish liability against Nurse Kaupp for deprivation of adequate medical care, and failure to

20

protect from harm, Plaintiffs must establish “(i) the defendant made an intentional decision with respect

21

to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at

22

substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures

23

to abate that risk, even though a reasonable official in the circumstances would have appreciated the high

24

degree of risk involved – making the consequences of the defendant’s conduct obvious; and (iv) by not

25

taking such measures, the defendant caused the plaintiff’s injuries.” Gordon, 888 F.3d at 1125 (medical

26

care claim); see also Castro, 833 F.3d at 1071 (failure to protect claim).

27
28

2.

First and Fourteenth Amendment deprivation of substantive due process

The parties dispute whether Defendants violated the substantive due process rights of Plaintiffs
JOINT PRETRIAL STATEMENT AND ORDER

-16-

Case No.: 16-CV-00945-BLF

1

Rosemary Lopez, Yvette Pajas, Mark Pajas, Janel Pajas, and Xavier Pajas in their familial relationships

2

with Mark Pajas, Sr. Plaintiff must establish that the County and CFMG Defendants deprived Plaintiffs

3

of this interest through conduct that shocks the conscience. Lemire v. Cal. Dep’t of Corr. and Rehab., 726

4

F.3d 1062, 1075 (9th Cir. 2013); see also Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)

5

(“official conduct that ‘shocks the conscience’ in depriving [individuals] of that interest is cognizable as a

6

violation of due process”). “A prison official’s deliberately indifferent conduct will generally ‘shock the

7

conscience’ so long as the prison official had time to deliberate before acting or failing to act in a

8

deliberately indifferent manner.” Lemire, 726 F.3d at 1075; Cnty. of Sacramento v. Lewis, 523 U.S. 833,

9

853 (1998) (when jail officials have “extended opportunities to do better” that “are teamed with

10
11

protracted failure even to care, indifference is truly shocking.”).
Kaupp’s Claims: The elements for a pretrial detainee’s Fourteenth Amendment claim against an

12

individual for deprivation of adequate medical care or failure to protect from harm are: “(I) the defendant

13

made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii)

14

those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not

15

take reasonable available measures to abate that risk, even though a reasonable official in the

16

circumstances would have appreciated the high degree of risk involved - making the consequences of the

17

defendant’s conduct obvious; and (v) by not taking such measures, the defendant caused that plaintiff’s

18

injuries.” Gordon v. Cty of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (medical care claim); see also

19

Castro, 833 F.3d at 1071 (failure to protect claim). “With respect to the third element, the defendant’s

20

conduct must be objectively unreasonable.” Gordon, 888 F.3d at 1125 (quotation marks and citation

21

omitted).

22

3.

Claim for wrongful death

23

Plaintiffs’ claim for wrongful death against CFMG is disputed. The parties dispute whether

24

CFMG is liable for the wrongful death of Mark Pajas. Plaintiffs contend that the unconstitutional failures

25

to protect Mr. Pajas from harm and to provide him adequate medical care constituted (1) a wrongful act

26

or neglect that (2) caused (3) the death of Mark Pajas, the existence of which establishes liability for

27

wrongful death. See Cal. Civ. P. Code § 377.60; Norgart v. Upjohn Co., 21 Cal. 4th 383, 390 (1999);

28

Lattimore v. Dickey 239 Cal.App.4th 959, 968 (2015).
JOINT PRETRIAL STATEMENT AND ORDER

-17-

Case No.: 16-CV-00945-BLF

1

The County contends that Plaintiffs cannot establish a direct causal link between any policy of

2

the County and/or act or omission of a County employee and Mr. Pajas’ death. The County contends

3

Plaintiffs cannot establish any policy or custom of the County was constitutionally deficient. The

4

County contends Plaintiffs cannot establish that the County adhered to a policy or custom with

5

deliberate indifference to any of Mr. Pajas’ constitutional rights.

6

4.

7
8

The parties estimate that this case will take 10-12 days of trial.
5.

9

Trial Alternatives and Options.
a.

10
11

Estimate of Trial Time.

Settlement Discussion.

On August 11, 2017, the parties participated in a settlement conference with United States
Magistrate Judge Nathanael Cousins. The matter did not resolve. (Dkt. No. 145).

12

On September 6, 2018 this court referred the case to Judge Cousins for further settlement

13

conference. (Dkt. No. 173). Following the court’s order on summary judgment, the parties have

14

scheduled a further settlement conference with Judge Cousins on December 11, 2018. (Dkt. No. 177).

15

b.

16

Plaintiffs do not anticipate making any amendments to the pleadings or dismissals.

17

c.

18

Defendants CFMG and Christina Kaupp request that the issue of punitive damages be bifurcated

19

Amendments or Dismissals.

Bifurcation and Separate Trial Issues.

and tried separately from the other issues in the case.

20

On motion of any defendant, evidence of that defendant’s net worth or its profits from the

21

allegedly-wrongly conduct is inadmissible until plaintiff has first proved a prima facie case of liability for

22

punitive damages (“malice, oppression or fraud”). [See Mid Continent Cabinetry, Inc. v. George Koch

23

Sons, Inc. (D KS 1990) 130 F.R.D. 149, 152]

24

//

25

//

26

//

27

//

28

//
JOINT PRETRIAL STATEMENT AND ORDER

-18-

Case No.: 16-CV-00945-BLF

1

6.

2

The foregoing admissions having been made by the parties, and the parties having specified the

3

foregoing issues of fact and law remaining to be litigated, this order shall supplement the pleadings and

4

govern the course of trial of this action, unless modified to prevent manifest injustice.

5

Dated: November 21, 2018

Binding Effect of the Joint Pretrial Statement and Order

6

Respectfully Submitted,
HADSELL STORMER & RENICK LLP

7
By:

/s/ - Lori Rifkin
Dan Stormer
Lori Rifkin
Cindy Pánuco
Attorneys for Plaintiffs

8
9
10
11
12
13
14
15

The foregoing admissions having been made by the parties, and the parties having specified the
foregoing issues of fact and law remaining to be litigated, this order shall supplement the pleadings and
govern the course of trial of this action, unless modified to prevent manifest injustice.
Dated: November 21, 2018

CHARLES J. McKEE
County Counsel

16
By:

/s/ - Michael R. Philippi
MICHAEL R. PHILIPPI
Attorneys for Defendant County of Monterey

17
18
19
20
21
22
23

The foregoing admissions having been made by the parties, and the parties having specified the
foregoing issues of fact and law remaining to be litigated, this order shall supplement the pleadings and
govern the course of trial of this action, unless modified to prevent manifest injustice.
Dated: November 21, 2018

SHEUERMAN, MARTINI, TABARI, ZENERE & GARVIN
By:

/s/ - Alan L. Martini
Alan L. Martini
Attorneys for Defendants California Forensic Medical
Group, Inc. and Christina Kaupp

24
25
26
27
28
JOINT PRETRIAL STATEMENT AND ORDER

-19-

Case No.: 16-CV-00945-BLF

1
2

[PROPOSED] ORDER
The Court, having reviewed the above JOINT PRETRIAL STATEMENT AND ORDER and

3

good cause appearing, enters this Joint Pretrial Statement and Order as an Order of the Court, as

4

modified by subsequent Orders of the Court.

5

IT IS SO ORDERED.

6
7

Dated: February 6, 2019

_________________________________
Honorable Beth Labson Freeman
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JOINT PRETRIAL STATEMENT AND ORDER

-20-

Case No.: 16-CV-00945-BLF