Nishimoto v. County of San Diego et al

Filing 155

ORDER (1) Granting Defendant Brantman's Motion for Summary Judgment [Doc. 86 ]; (2) Denying Motions to Seal [Docs. 82 , 93 , 107 ]. Signed by Judge Roger T. Benitez on 3/22/2019. (anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ROCHELLE NISHIMOTO, Individually and as Successor in Interest to JASON NISHIMOTO, 13 14 15 Case No.: 3:16-cv-1974-BEN-LL ORDER: (1) GRANTING DEFENDANT BRANTMAN’S MOTION FOR SUMMARY JUDGMENT, [Doc. 86]; Plaintiff, v. COUNTY OF SAN DIEGO, et al., 16 Defendants. (2) DENYING MOTIONS TO SEAL [Docs. 82, 93, 107] 17 18 19 20 21 22 23 24 Plaintiff Rochelle Nishimoto, individually and as Successor in Interest to Jason Nishimoto, brought suit against the County of San Diego, six County employees, Correctional Physicians Medical Group (“CPMG”), and CPMG Nurse Practitioner Anne Brantman for claims related to the death of her son, Jason Nishimoto, who committed suicide while incarcerated at Vista Detention Facility.1 NP Brantman now moves for summary judgment on the five claims against her. [Doc. 86.] CPMG joins the motion. 25 26 27 28 The parties jointly dismissed all of Plaintiff’s claims against the County of San Diego and the six individually named County Defendants. [Doc. 142.] 1 1 3:16-cv-1974-BEN-LL 1 [Doc. 97.] For the following reasons, the motion is GRANTED, and the claims against 2 NP Brantman and CPMG are dismissed. 3 I. BACKGROUND 4 A. Evidentiary Objections 5 NP Brantman asserts 12 evidentiary objections to which Plaintiff did not respond. 6 [Doc. 98-1.] The Court resolves these objections before turning to the undisputed facts. 7 1. Plaintiff’s Exhibit W – Portions of Vicky Felizardo’s Deposition 8 NP Brantman claims that she advised County Nurse Vicky Felizardo that Jason 9 Nishimoto would need a medical observation cell2 due to his medical and suicidal needs. 10 Plaintiff attempts to dispute such facts by citing Exhibit W to show that Nurse Felizardo 11 “denies this conversation took place” and to show that “[she] was not even working at 12 [Vista] on September 25, 2015.” [Doc. 95 at pp. 9, 10.] NP Brantman objects that the 13 cited testimony lacks personal knowledge under FRE 602, is irrelevant under FRE 402, 14 and mischaracterizes the evidence. 15 In the cited testimony, Nurse Felizardo testifies that she lacks any memory of talking 16 with NP Brantman on September 25, 2015, or of anything else on that day, aside from the 17 County Operations meeting she attended.3 Therefore, the cited testimony does not support 18 either fact alleged by Plaintiff. First, the fact that Nurse Felizardo attended a meeting in 19 Clairemont on September 25, 2015, does not equate to Plaintiff’s unsupported assertion 20 that Nurse Felizardo did not work at Vista at all that day. Second, Nurse Felizardo’s 21 inability to recall a conversation with NP Brantman does not equate to an outright denial 22 that the conversation took place. See Fed. Elect’n Com’n v. Toledano, 317 F.3d 939, 949 23 (9th Cir. 2002) (“[F]ailure to remember and lack of knowledge are not sufficient to create 24 25 26 27 28 The parties inconsistently refer to these cells as both “medical isolation” and “medical observation” cells. For consistency, all references throughout are to “medical observation” cells. 3 Nurse Felizardo only remembered she attended the County Operations meeting that day after she reviewed a document reflecting that fact. 2 2 3:16-cv-1974-BEN-LL 1 a genuine dispute.”). Furthermore, because Nurse Felizardo cannot recall that day’s events, 2 she lacks sufficient personal knowledge to testify about them. See FRE 602 (requiring 3 “sufficient [evidence] to support a finding that the witness has personal knowledge of the 4 matter”). Therefore, NP Brantman’s objection to Exhibit W under both FRE 602 and as a 5 mischaracterization of the evidence is SUSTAINED. 6 2. Plaintiff’s Exhibit DD – Deputy Johnson’s Deposition at 153:16-24 7 The objection is SUSTAINED. Plaintiff alleges that Deputy Johnson “adamantly 8 testified that NP Brantman did not relay or express concern regarding Jason’s suicide risk.” 9 [Doc. 95 at p. 16.] In support, Plaintiff cites Deputy Johnson’s deposition at 153:16-24: 10 11 Q: Did Nurse Brantman ever communicate to Nurse Felizardo that Jason Nishimoto was also, in addition to suffering – potentially suffering from withdrawal symptoms, was a suicide risk? 12 13 A: No. 14 As NP Brantman correctly argues, however, because Deputy Johnson did not pay attention 15 to the entirety of NP Brantman and Nurse Felizardo’s conversation, he lacks personal 16 knowledge to testify whether NP Brantman definitively did or did not discuss with Nurse 17 Felizardo that Nishimoto was “a suicide risk.” See [Doc. 83-8 at p. 66 (Ex. 19f, Johnson 18 Depo., 152:10-15) (“I can’t remember – I don’t think she knew kind of what he did – or 19 who he was, but, you know, NP Brantman explained what’s going on with him or she 20 believed what could possibly be going on with him, and then they had a conversation about 21 vital signs and stuff, and I didn’t really pay attention to a whole lot of it.”) (emphasis 22 added); id. at 257:25-258:2 (“I don’t know what medical was made aware of by Ms. 23 Brantman, whether they agreed that they were going to move him later or not.”)]. 24 3. Plaintiff’s Exhibit EE – Michael McMunn’s Expert Report 25 NP Brantman objects to the report of Plaintiff’s expert, Michael McMunn, as lacking 26 an authenticating declaration. Under Rule 56(c)(4), “An affidavit or declaration used to 27 support or oppose a motion must be made on personal knowledge, set out facts that would 28 be admissible in evidence, and show that the affiant or declarant is competent to testify on 3 3:16-cv-1974-BEN-LL 1 the matters stated.” Mr. McMunn’s report fails to comply in several respects. First, the 2 report is not signed under penalty of perjury; it merely “certifies” that the statements are 3 true and correct. See Ex. EE at p. 238 (“I certify that these statements are true and correct 4 to the best of my knowledge.”). Nor is the report accompanied by any separate sworn 5 declaration by Mr. McMunn, an alternative mechanism that courts have found to satisfy 6 Rule 56(c)’s functional concerns. See, e.g., Am. Federation of Musicians of United States 7 and Canada v. Paramount Pictures Corp., 2017 WL 4290742 (9th Cir. Sep. 10, 2018) 8 (finding an unsworn expert report accompanied by the expert’s sworn declaration satisfied 9 the functional concerns behind Rule 56(c)(4)). 10 The Court has reviewed other courts’ decisions on similar facts and concludes that 11 Mr. McMunn’s unsworn expert report does not qualify for an exception, particularly 12 because, of those courts that accepted unsworn expert reports, the reports otherwise 13 satisfied Rule 56(c)’s requirements. For example, in Single Chip Systems Corp. v. Intermec 14 IP Corp., 2006 WL 4660129 (S.D. Cal. Nov. 6, 2006), the district court admitted unsworn 15 expert reports where the reports stated in their introductions “that the contents were made 16 on personal knowledge, that the facts would be admissible in evidence, and that the affiants 17 [we]re competent to testify to the information contained herein.” Id. at *6. Mr. McMunn’s 18 report does not so state. Rather, Mr. McMunn “declare[s] [him]self an expert to testify in 19 this matter” and then goes on to “reserve the right to modify [his] findings, if new 20 information or documents are later received.” [Ex. EE at p. 228-29.] Plaintiff offers no 21 response to NP Brantman’s objection. Accordingly, because Mr. McMunn’s expert report 22 is not admissible evidence, the objection is SUSTAINED, and the Court will not consider 23 the report. 24 4. Plaintiff’s Attorney Danielle Pena’s Declaration at 2:19-20 25 Finally, NP Brantman objects to a portion of Plaintiff’s attorney Danielle Pena’s 26 declaration, which provides, “Mr. McMunn testified that the only acceptable housing 27 options for Nishimoto was the EOH or a safety cell.” [Doc. 95-1 at ¶ 5.] NP Brantman 28 argues the declaration is hearsay because it is an out-of-court statement offered for its truth. 4 3:16-cv-1974-BEN-LL 1 The Court agrees. Had Plaintiff wished to submit Mr. McMunn’s testimony, she should 2 have submitted portions of his original deposition testimony. 4 3 B. Factual Background5 4 On September 24, 2015, Adrian Nishimoto called 911 because his brother, Jason 5 Nishimoto, took 60 Klonopin pills and was trying to drive away in his truck. Adrian 6 reported that, when he tried to stop Jason from leaving, Jason chased and hit him with a 7 shovel. 8 incident. Deputies arrested Jason for assault with a deadly weapon and transported him 9 to the Vista Patrol Station (“VPS”) for processing. When the deputies arrived, Jason cooperated and was detained without 10 At VPS, Deputy Klein asked Mental Health Clinician Henkel of the Psychiatric 11 Emergency Response Team (PERT) to evaluate Jason. Per the PERT assessment, Jason 12 did not display symptoms consistent with medical distress, he denied suicidal ideations 13 and homicidal ideations, and he denied auditory and visual hallucinations. Jason denied 14 any previous suicide attempts but reported an overdose one month prior. He also denied 15 recent alcohol use and was able to appropriately respond to questions. In addition, the 16 PERT notes reflect that Jason took Klonopin to assist him with sleeping, was not 17 attempting to overdose, and had not been taking any of his psychiatric medications due 18 to side effects. Based on Jason’s evaluation, the team determined Jason did not satisfy 19 the criteria necessary for involuntary commitment. 20 Next, deputies transported Jason to the San Diego County Sheriff’s emergency room 21 at Tri-City Medical Center (“Tri-City”). There, Dr. Colin Dougherty evaluated Jason for 22 23 24 25 26 27 28 The remainder of Brantman’s evidentiary objections concern various opinions from Mr. McMunn’s expert report. Although many, if not all, of Brantman’s remaining objections numbers 5-11 appear to have merit, the Court need not address them because the Court already determined that Mr. McMunn’s report is inadmissible. Accordingly, the remaining objections are OVERRULED as moot. 5 The following facts are undisputed for purposes of this motion. Those facts that are genuinely disputed are designated accordingly and construed in the light most favorable to Plaintiff, as the non-moving party. 4 5 3:16-cv-1974-BEN-LL 1 medical clearance and noted Jason’s history of schizoaffective disorder and use of multiple 2 medications. Dr. Dougherty discharged Jason and instructed him to follow up with his 3 primary psychiatrist and primary physician within one to two days. 4 Following discharge, deputies transported Jason to Vista Detention Facility 5 (“Vista”). At Vista, Leah Gache, RN, performed an initial medical intake screening and 6 noted that Jason was previously seen at Tri-City for taking a “bunch of Klonopin 7 yesterday.” Nurse Gache noted that Jason exhibited normal speech and thought process, 8 was cooperative, denied suicidal and homicidal ideations, and did not report any 9 hallucinations. Jason denied any history of prior suicide attempts. Nurse Gache 10 recommended that Jason be placed on the psychiatric sick call list for the next day because 11 of his psychiatric medications. Deputy Arjis Gertzke, the classification deputy, determined 12 that Jason should be placed into administrative segregation because he had displayed a 13 continual inability or unwillingness to conform to the minimum standards expected of 14 those in mainline housing, and Deputy Gertzke suspected Jason was intellectually disabled. 15 On September 25, 2015, Deputy Johnson, a mental health liaison deputy, reviewed 16 Jason’s arrest report and conveyed the report’s information to CPMG Defendant Anne 17 Brantman, RN, a psychiatrist nurse practitioner. NP Brantman noted her concern about 18 Jason’s current placement in administrative segregation housing. She confirmed with 19 charge nurse, Vicky Felizardo, RN, that there was a single medical observation cell 20 available and discussed her recommendation to place Jason there.6 Nurse Felizardo pushed 21 back on NP Brantman’s recommendation, saying that another inmate from Tri-City would 22 23 24 25 26 27 28 6 Plaintiff attempts to dispute the fact that NP Brantman and Nurse Felizardo discussed Jason’s housing recommendation by citing Nurse Felizardo’s testimony that she does not recall the conversation with NP Brantman on September 25, 2015. As already discussed in ruling on NP Brantman’s evidentiary objection, however, “failure to remember and lack of knowledge are not sufficient to create a genuine dispute.” Fed. Elect’n Com’n v. Toledano, 317 F.3d 939, 949 (9th Cir. 2002). Therefore, this fact is not disputed. 6 3:16-cv-1974-BEN-LL 1 need the available medical observation cell. NP Brantman responded that Jason needed a 2 medical observation cell because of his medical and suicidal needs, as well as Jason’s likely 3 detox and withdrawal from Klonopin. 4 Medical observation cells at Vista are visible from the nursing station. Nursing staff 5 and deputies conduct hourly checks of inmates placed in medical observation cells, which 6 can be used as enhanced observation cells. The San Diego County Sheriff’s Department’s 7 Suicide Prevention and Enhanced Observation Protocol’s “Decision Tree” recommends 8 that inmates who deny active suicidal ideations but who have been identified as having 9 suicide risk factors be placed in administrative segregation, a medical observation cell, or 10 an observation housing unit. [Doc. 86-8 at p. 145.] The Protocol recommends placement 11 in a safety cell only for those inmates who (1) verbalize active suicidal ideations and (2) 12 are intoxicated and/or belligerent. [Id.] Inmates housed in safety cells are stripped of their 13 clothes and belongings and given a special blanket and pair of slippers. 14 After talking with Nurse Felizardo, NP Brantman left to evaluate Jason in person. 15 During NP Brantman’s evaluation, Jason appeared to be under the influence, had slurred 16 speech, flat affect, and was hard to understand but coherent enough for a conversation. 17 Jason’s chief complaint was that he had not taken his medications in a month. NP 18 Brantman also noted Jason’s long history of schizoaffective disorder with substance abuse, 19 that Jason was still drugged from the accidental overdose, but that Jason claimed he was 20 “okay” and denied any current suicidal ideations. 21 Jason gave NP Brantman permission to call his mother, Plaintiff Rochelle 22 Nishimoto, to obtain additional medical history. Plaintiff reported that Jason had a long 23 history of schizoaffective disorder and had been doing well until the past July when he 24 “totally decompensated.” Plaintiff also reported two prior involuntary admissions to Tri- 25 City. She relayed that Jason had not been sleeping for weeks, often got desperate, and then 26 would use marijuana and take too much Klonopin. Finally, she informed NP Brantman 27 28 7 3:16-cv-1974-BEN-LL 1 that Jason took an entire bottle of Klonopin (30-60 pills) on the day before his arrest in an 2 attempt to kill himself.7 [Pltf’s Ex. X at 71:11-72:7.] 3 NP Brantman concluded that Jason was too sedated to start on medication and was 4 still drugged from the overdose. In his chart, she noted his denial of suicidal ideations 5 (“Denies si/hi”), her treatment plan to refer Jason for vital checks and status checks because 6 of his Klonopin overdose, as well as her recommendation for follow up with a psychiatrist 7 in 2 days. [Doc. 86-8 at p. 86-89.] 8 After the phone call with Plaintiff, NP Brantman went back to the nurse’s station to 9 speak with Nurse Felizardo because she wanted to ensure that Jason would receive the last 10 available medical observation cell. She confirmed the cell was still available by asking 11 Nurse Felizardo. Again, Nurse Felizardo pushed back, and the two nurses “energetically” 12 discussed Jason’s arrest, Tri-City clearance, and present symptoms. NP Brantman advised 13 that Jason could begin to suffer from medical complications because Klonopin has a long 14 half-life, and Asian men metabolize the medication more slowly. She also warned that 15 Jason might relapse back to self-harming behavior, given his various suicidal risk factors. 16 Nurse Felizardo confirmed she would place Jason in the last available medical observation 17 cell, stating, “Ok, Ms. Annie . . . we’ll put him in.” NP Brantman believed Nurse Felizardo 18 would comply with her recommendation.8 19 20 21 22 23 24 25 26 27 28 7 NP Brantman argues that Plaintiff told her Jason accidentally overdosed on the Klonopin in an attempt to fall asleep, not to kill himself. Because Plaintiff cites evidence in the record contradicting NP Brantman’s account, however, this fact is disputed. [Pltf’s Ex. X, 71:11-72:7.] As such, the fact is construed in favor of Plaintiff as the non-moving party. 8 In her Opposition, Plaintiff lays out the facts surrounding the nurses’ conversation but concludes with a general statement that “the county and Defendant Felizardo deny these conversations took place, and they deny being advised about moving Nishimoto or about concern for his risk of suicide.” [Doc. 95 at p. 12.] This conclusory and unsupported denial, however, does not create a genuine dispute. 8 3:16-cv-1974-BEN-LL 1 Medical staff never transferred Jason to a medical observation cell. This was the 2 first time medical staff did not follow NP Brantman’s housing recommendation. Jason 3 remained in the administrative segregation cell for two more days without medication or 4 psychiatric treatment. During a routine security check on September 27, 2015, Deputy 5 Jose Navarro discovered Jason hanging in his cell. 6 In support of summary judgment, NP Brantman offers the declaration of Holly 7 Viloria, a nurse practitioner dually-licensed in the State of California as a family nurse 8 practitioner and psychiatric/mental health nurse practitioner with extensive experience 9 working with schizoaffective disorder and incarcerated patients. [86-4 at ¶ 3.] After 10 reviewing numerous pertinent materials related to the lawsuit, NP Viloria offered her sworn 11 opinion about the standard of care required of a psychiatric nurse practitioner practicing in 12 the Southern California community. She concluded that NP Brantman complied with the 13 standard of care at all times during her care, evaluation, and treatment of Jason. 14 In her sworn opinion, NP Viloria specifically opined that Jason’s “presentation did 15 not warrant placement into a safety cell.” [Id. at ¶ 8.] She found that, because Jason was 16 not acutely suicidal, placement into a safety cell was not appropriate and could have been 17 more traumatic because of his schizoaffective disorder. [Id.] NP Viloria additionally 18 opined that NP Brantman appropriately recommended a psychiatric sick call within 48 19 hours of the initial mental health assessment, as required under San Diego County’s 20 policies and procedures. [Id. at ¶ 12.] Finally, NP Viloria opined that NP Brantman 21 appropriately decided not to order any medications for Jason because of her concerns about 22 Jason’s level of consciousness/sedation from the possible Klonopin overdose, as well as 23 his statements that he had not taken his medications for a month and had a history of severe 24 side effects on psychotropic medications. [Id. at ¶ 13.] NP Viloria explained that, “[i]f 25 [Jason] had been taking his medications regularly and was not too sedated and thus a risk 26 for respiratory or central nervous system depression, it would have been appropriate to 27 continue his medications.” [Id.] NP Viloria further explained that “[a]bruptly restarting 28 an antipsychotic or anticholinergic would have placed [Jason] at further risk for medical or 9 3:16-cv-1974-BEN-LL 1 psychiatric destabilization” for several specific reasons: Jason’s history of side effects with 2 psychotropics; his not taking routine medications for at least a month; the fact that his full 3 medical history was not available because of his intoxication; Jason’s presentation with an 4 altered sensorium; and the fact that withdrawal symptoms for Klonopin can often be 5 delayed and last for several days, increasing risk of seizures. 6 medications that would have been available at Vista act on dopamine receptors and also 7 increase the risk of seizures. [Id.] Therefore, NP Viloria opined, “[i]t was essential that 8 [Jason] be closely monitored to be free from any benzodiazepine withdrawal symptoms 9 before his medications were restarted.” [Id.] 10 II. [Id.] Antipsychotic DISCUSSION 11 A. Legal Standard 12 “A party is entitled to summary judgment if the ‘movant shows that there is no 13 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 14 of law.’” City of Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 15 2014) (quoting Fed. R. Civ. P. 56(a)). “The moving party initially bears the burden of 16 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 17 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 18 (1986)). “The court must view the evidence in the light most favorable to the nonmovant 19 and draw all reasonable inferences in the nonmovant’s favor.” City of Pomona, 750 F.3d 20 at 1049. “‘Where the record taken as a whole could not lead a rational trier of fact to find 21 for the nonmoving party, there is no genuine issue for trial.’” Id. (quoting Matsushita Elec. 22 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 23 NP Brantman moves for summary judgment on all of Plaintiff’s claims against her, 24 including her two § 1983 claims (Counts 1 and 4 for Deliberate Indifference to Serious 25 Medical Needs and Deprivation of Familial Relationships) and her three California state 26 law claims (Counts 5, 6, and 7 for Negligence, Medical Malpractice, and Wrongful Death). 27 The Court addresses each claim in turn. 28 10 3:16-cv-1974-BEN-LL 1 B. Section 1983 Claims (Counts 1 and 4) 2 Plaintiff brings her two constitutional claims against NP Brantman under 42 U.S.C. 3 § 1983. The parties agree that, for the purpose of evaluating those claims, Jason was a 4 pretrial detainee because he had not been convicted of any crime. See Castro v. County of 5 Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016) (explaining plaintiff was “a pretrial 6 detainee who had not been convicted of any crime”); Clouthier v. County of Contra Costa, 7 591 F.3d 1232, 1243 (9th Cir. 2010) (overruled on other grounds by Castro, 833 F.3d at 8 1070) (explaining plaintiff was a mentally ill “pretrial detainee confined at MDF in 9 connection with battery and vandalism charges”). 10 “Medical care claims brought by pretrial detainees . . . arise under the Fourteenth 11 Amendment’s Due Process Clause, rather than under the Eighth Amendment’s Cruel and 12 Unusual Punishment Clause.” Gordon v. Cty. of Orange, 888 F.3d 1118, 1124 (9th Cir. 13 2018). 14 defendant requires: 15 16 17 18 19 20 Accordingly, a pretrial detainee’s medical care claim against an individual (1) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (4) by not taking such measures, the defendant caused the plaintiff’s injuries. 21 22 Id. at 1125. 23 As to the third element, the defendant’s conduct must be objectively unreasonable, 24 which turns on the facts and circumstances of each particular case. Id. Importantly, these 25 claims require proof of “more than negligence but less than subjective intent—something 26 akin to reckless disregard.” Id. Thus, contrary to a prisoner bringing claims under the 27 Eighth Amendment, a pretrial detainee bringing claims under the Fourteenth Amendment 28 “need not prove those subjective elements about the [defendant]’s actual awareness of the 11 3:16-cv-1974-BEN-LL 1 level of risk.” Id. at 1125, n. 4 (internal quotation marks omitted) (emphasis added). 2 Further, “[a] court must make this determination from the perspective of a reasonable 3 officer on the scene, including what the officer knew at the time, not with the 20/20 vision 4 of hindsight.” Id. “[T]he mere lack of due care by a state official does not deprive an 5 individual of life, liberty, or property under the Fourteenth Amendment.” Id. 6 In support of summary judgment, NP Brantman contends that her conduct was not 7 so objectively unreasonable under the circumstances that it fell to the level of reckless 8 disregard sufficient to support Plaintiff’s § 1983 claim. Specifically, NP Brantman argues 9 that she recommended Jason’s placement in a medical observation cell, not the 10 administrative segregation cell where he remained until his death, and she relayed her 11 concerns to other medical staff about the physical and mental risks inherent in Jason’s 12 detox from the Klonopin, including his increased risk of suicidal ideations. 13 Plaintiff responds that NP Brantman was deliberately indifferent because there are 14 “hotly disputed facts” about whether she did, in fact, recommend transferring Jason to a 15 medical observation cell in response to learning about his medical history and risks. [Doc. 16 95 at p. 14.] As already discussed in the background and evidentiary objections sections, 17 however, the facts are undisputed that (1) NP Brantman recommended a medical 18 observation cell housing placement and (2) relayed her concerns to staff about Jason’s 19 medical and suicide-related needs. Accordingly, the Court need not further address this 20 argument. 21 In the alternative, Plaintiff argues that, even if NP Brantman did make the housing 22 recommendation she professes to have made, that recommendation was “deliberately 23 indifferent because a medical observation cell is not a suicide prevention cell.” [Doc. 95 24 at p. 15.] Because Plaintiff does not identify admissible evidence showing the County has 25 “suicide prevention cells,” the Court assumes that Plaintiff intends to refer to the County’s 26 “safety cells” and refers to them as such, throughout. See [Doc. 86-8 (San Diego County’s 27 Suicide Prevention & Enhanced Observation Protocol) (discussing decision tree and 28 protocol for using safety cells for inmates with active suicidal ideations)]. 12 3:16-cv-1974-BEN-LL 1 To evaluate the objective reasonableness of NP Brantman’s conduct, the Court 2 considers the information known to her at the time. The admissible evidence shows that 3 Jason had a history of schizoaffective disorder, recently attempted to commit suicide by 4 overdosing on Klonopin, had a history of several prior suicide attempts, denied that he was 5 currently experiencing suicidal ideations, exhibited physical signs of overdose, and would 6 likely go through Klonopin withdrawal, which could lead to suicidal ideations and other 7 medical risks. The undisputed facts show that Jason repeatedly denied having any active 8 suicidal ideations. Accordingly, NP Brantman’s medical observation cell recommendation 9 complied with the County of San Diego’s Enhanced Observation Decision Tree and 10 Protocol. [Ex. 17 at Doc. 86-8.] Plaintiff does not offer any admissible evidence to show 11 otherwise. 12 NP Brantman also offers the unchallenged expert opinion of Holly Viloria, RN, 13 MSN, FNP, PMHNP-BC who opined that NP Brantman complied with the standard of care 14 at all times during her care for and treatment of Jason. NP Viloria opined that because 15 Jason did not present as acutely suicidal, his presentation did not warrant placement in a 16 safety cell. NP Viloria further opined that NP Brantman’s medical observation cell 17 recommendation was appropriate under the circumstances because such cells are within 18 visual proximity of the nursing station, are used for enhanced observation, and are rounded 19 every hour by both nursing staff and deputies.9 Inmates placed in safety cells are stripped 20 of all clothing and provided only slippers and a special blanket. Plaintiff does not dispute 21 NP Viloria’s opinion that, because of Jason’s schizoaffective disorder, a decision to house 22 Jason naked in a safety cell could have harmed his mental health further and been even 23 more traumatic. 24 25 26 27 28 9 Moreover, Plaintiff does not identify any evidence showing that NP Brantman behaved unreasonably by believing that medical staff would implement her placement recommendation. Rather, it is undisputed that Jason’s placement was the first time staff did not follow NP Brantman’s placement recommendation. 13 3:16-cv-1974-BEN-LL 1 Plaintiff offers no admissible evidence showing that NP Brantman’s medical 2 observation cell recommendation was inappropriate. For example, Plaintiff further argues 3 that NP Brantman should have recommended Jason’s placement in a safety cell because 4 medical observation cells have the same tie-off points and fixtures used by inmates to 5 commit suicide as in administrative segregation cells.10 But, an examination of Plaintiff’s 6 cited evidence does not support her assertion: Plaintiff cites an exhibit containing several 7 photographs of Vista medical observation cells, but the Court is unable to discern the “tie- 8 off” points in these cells. See [Doc. 94 at pp. 28-32.] Regardless, even assuming the 9 difference between the cells is a properly supported fact, Plaintiff still does not support her 10 observation with admissible evidence showing that NP Brantman’s housing 11 recommendation was somehow negligent, much less deliberately indifferent. For purposes 12 of summary judgment, “mere allegation and speculation do not create a factual dispute.” 13 Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir. 2007). Thus, without 14 evidence, Plaintiff’s conclusory argument about what NP Brantman “should have” done 15 cannot “present[] a sufficient disagreement to require submission to a jury.”11 Anderson v. 16 Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 17 18 19 20 21 22 23 24 25 26 27 28 To the extent Plaintiff also argues that NP Brantman’s decision not to start Jason on medication at the time of her assessment was deliberately indifferent, the Court disagrees. Plaintiff does not offer admissible evidence showing NP Brantman should have started Jason on medications when he was still sedated by Klonopin. See also [Doc. 86-4 at ¶ 13 (expressing professional medical opinion that NP Brantman appropriately decided not to order medications because of “her concerns over [Jason’s] level of consciousness/sedation . . . in addition to his statements that he had been off his medications for a month and had a history of severe side effects on psychotropic medications in the past”)]. 11 In fact, Plaintiff concedes as much in her Opposition, providing, “[Nurse] Brantman’s conduct would not rise to the level of deliberate indifference if she acted as testified to; meaning she 1) recommend [sic] a specialty cell and 2) relayed her concerns regarding Nishimoto’s suicide risk.” [Doc. 95 at p. 17. (italics added)]. As already discussed, these facts are undisputed, and thus, it appears that Plaintiff concedes her § 1983 claims against NP Brantman must fail. The Court agrees. 10 14 3:16-cv-1974-BEN-LL 1 Plaintiff’s citation to Estate of Vela v. Monterey, 2018 WL 4076317 (N.D. Cal. Aug. 2 27, 2018), is not persuasive. The inmate in Estate of Vela voiced current suicidal ideations 3 and was relocated to a safety cell, as a result. Four hours later, a psychiatrist evaluated the 4 inmate, and she was returned to administrative segregation where she hung herself four 5 days later. The district court denied summary judgment against the psychiatrist because of 6 the numerous issues of material fact as to the psychiatrist’s adequacy of care. In sharp 7 contrast to Estate of Vela, Plaintiff here does not identify any such genuine issues of 8 material fact. Accordingly, summary judgment is GRANTED in NP Brantman’s favor on 9 Plaintiff’s § 1983 serious medical needs claim.12 10 In addition to her deliberate indifference claim, Plaintiff brings a due process claim 11 for deprivation of familial relationships under § 1983. Because Plaintiff’s second § 1983 12 claim is premised on a finding that NP Brantman was deliberately indifferent, summary 13 judgment is additionally GRANTED in favor of NP Brantman on Plaintiff’s due process 14 claim. See Plaintiff’s Third Amended Complaint, Doc. 52 at ¶ 143 (citing County of 15 Sacramento v. Lewis, 523 U.S. 833, 847 (1998)) (“Conduct that was not intentional, but 16 rather was deliberately indifferent, may nevertheless rise to the conscience-shocking level 17 in some circumstances [sufficient to support a deprivation of familial relationships 18 claim].”). 19 C. Negligence, Medical Malpractice, and Wrongful Death (Counts 5 – 7) 20 NP Brantman also moves for summary judgment on Plaintiff’s three state law 21 claims, each of which is based upon the same set of facts as Plaintiff’s § 1983 claims. 22 23 24 25 26 27 28 12 Although the parties did not brief the issue, the Court observes that Plaintiff is also unlikely to be able to show causation. Because NP Brantman’s housing placement recommendation for transfer to a medical observation cell was not followed in the first place, it is unclear how the tragic outcome would have been different had NP Brantman recommended a safety cell, instead. In other words, the Court is skeptical that Plaintiff could show a reasonable jury could find NP Brantman’s placement recommendation, which was not implemented, arguably caused Jason’s tragic death. 15 3:16-cv-1974-BEN-LL 1 An ordinary negligence claim requires duty, breach, causation, and damages. Hayes 2 v. County of San Diego, 160 Cal. Rptr. 3d 684, 688 (Cal. 2013). Where the alleged 3 negligent act occurred in the “rendering of professional services,” however, the claim is 4 one for “professional negligence” under California Code of Civil Procedure § 340.5. See 5 Yun Hee So v. Sook Ja Shin, 151 Cal. Rptr. 3d 257, 265 (Cal. Ct. App. 2013). Because 6 Plaintiff’s negligence claim is for NP Brantman’s acts during the “rendering of professional 7 services,” her claim is one for professional negligence.13 8 Like Plaintiff’s professional negligence claim, Plaintiff’s medical malpractice claim 9 is premised upon NP Brantman’s care and treatment of Jason. A medical malpractice claim 10 requires “(1) the duty of the professional to use such skill, prudence, and diligence as other 11 members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a 12 proximately causal connection between the negligent conduct and the resulting injury; and 13 (4) actual loss or damage resulting from the professional’s negligence.” Avivi v. Centro 14 Medico Urgente Med. Ctr., 71 Cal. Rptr. 3d 707, 714 n.2 (Cal. Ct. App. 2008) (internal 15 citations omitted). “The standard of care in a medical malpractice case requires that 16 physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge 17 and care ordinarily possessed and exercised by members of the medical profession under 18 19 20 21 22 23 24 25 26 27 28 “Courts have broadly interpreted ‘in the rendering of professional services.’” Yun Hee So v. Sook Ja Shin, 151 Cal. Rptr. 3d at 265. To determine whether the claim is for “professional negligence,” “the relevant test is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed.” Canister v. Emergency Ambulance Svc., Inc., 72 Cal. Rptr. 3d 792, 804 (Cal. Ct. App. 2008). Thus, actions that are slightly related to patient care are considered professional negligence, so long as the negligent act occurred during the rendering of professional services. See, e.g., Bellamy v. Appellate Dept., 57 Cal. Rtpr. 2d 894 (Cal. Ct. App. 1996) (allowing patient to fall off of hospital bed or gurney is professional negligence, not ordinary negligence); Taylor v. U.S., 821 F.2d 1428, 1432 (9th Cir. 1987) (patient’s separation from ventilator is professional negligence, “regardless of whether separation was caused by the ill-considered decision of a physician or the accidental bump of a janitor’s broom”). 13 16 3:16-cv-1974-BEN-LL 1 similar circumstances.” Munro v. Regents of Univ. of Cal., 263 Cal. Rptr. 878, 882 (Cal. 2 Ct. App. 1989). “The standard of care . . . is a matter peculiarly within the knowledge of 3 experts; it presents the basic issue in a malpractice action and can only be proved by their 4 testimony, unless the conduct required by the particular circumstances is within the 5 common knowledge of the layman.” Id. (citations omitted). “Expert evidence in a 6 malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning 7 in the locality and of the propriety of particular conduct by the practitioner.” Willard v. 8 Hagemeister, 175 Cal. Rptr. 365, 369 (Cal. Ct. App. 1981). 9 Here, NP Brantman offers expert evidence through NP Viloria’s declaration, which 10 conclusively establishes that NP Brantman complied with the standard of care at all times 11 during her treatment of Jason. The Court will not rehash NP Viloria’s expert opinions here, 12 as they were already discussed at length previously in Section II.B. See also [Doc. 86-4.] 13 Plaintiff does not offer any admissible evidence to dispute NP Viloria’s reasoning or 14 conclusions.14 Therefore, because a reasonable jury could not find that NP Brantman 15 violated the standard of care owed to Jason, summary judgment is warranted on Plaintiff’s 16 professional negligence and medical malpractice claims. 17 Likewise, summary judgment is warranted on Plaintiff’s wrongful death claim. A 18 wrongful death claim requires negligence, causation, the death of another, and damages. 19 Boeken v. Philip Morris USA, Inc., 108 Cal. Rptr. 3d 806, 820 (Cal. 2010). For the same 20 reasons that Plaintiff cannot show NP Brantman breached a duty to Jason, as required for 21 a negligence claim, Plaintiff’s wrongful death claim must also fail. Therefore, summary 22 23 24 25 26 27 28 As previously discussed, the Court cannot consider Plaintiff’s unsworn expert report. See, e.g., Bucklin v. Am Zurich Ins. Co., 2013 WL 3147019, at *4 n.4 (C.D. June 19, 2013) (“Pilcher’s declaration is not signed under penalty of perjury. Therefore, it is ineligible for consideration pursuant to Fed. R. Civ. P. 56(e)).”). Notably, Plaintiff did not respond to NP Brantman’s evidentiary objection. 14 17 3:16-cv-1974-BEN-LL 1 judgment is GRANTED in NP Brantman’s favor on Plaintiff’s claims for professional 2 negligence, medical malpractice, and wrongful death.15 3 D. CPMG’s JOINDER TO MOTION FOR SUMMARY JUDGMENT 4 CPMG filed a notice of joinder to NP Brantman’s motion for summary judgment. 5 [Doc. 97.] In its notice, CPMG provides, “Plaintiff’s counsel confirmed that the only 6 negligence claim against CPMG is for vicarious liability for Anne Brantman.”16 [ p. 7 1-2.] Plaintiff offered no opposition. Because summary judgment is granted in favor of 8 NP Brantman on Plaintiff’s state law claims, CPMG cannot be held vicariously liable. 9 Thus, summary judgment is likewise GRANTED in CPMG’s favor on Plaintiff’s 10 remaining negligence claim. 11 III. MOTIONS TO SEAL [Docs. 82, 93, 107] 12 In conjunction with the parties’ briefing on NP Brantman’s motion for summary 13 judgment, the parties filed several motions to seal. [Docs. 82, 93, 107.] The Court has 14 reviewed the motions and the approximately 500 pages of exhibits the parties propose to 15 seal. The parties contend that each exhibit relates in some way to the investigation by the 16 Citizen Law Enforcement Review Board (“CLERB”), an independent investigatory body. 17 There is a strong presumption in favor of public access to court records. See Nixon 18 v. Warner Comm’ns, Inc., 435 U.S. 589, 597-99 (1978). Thus, a party seeking to seal a 19 judicial record bears the burden of overcoming this strong presumption by meeting the 20 “compelling reasons” standard. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 21 1135 (9th Cir. 2003). That is, the party must “articulate[ ] compelling reasons supported 22 by specific factual findings,” id., that outweigh the general history of access and the public 23 policies favoring disclosure, such as the “public interest in understanding the judicial 24 25 26 27 28 Because summary judgment is granted in NP Brantman’s favor on all claims against her, the Court need not consider her additional argument about Plaintiff’s claim for punitive damages. 16 On October 11, 2018, Plaintiff and CPMG jointly moved to dismiss the deliberate indifference claims against it. [Doc. 78.] 15 18 3:16-cv-1974-BEN-LL 1 process,” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). “The mere fact that 2 the production of records may lead to a litigant’s embarrassment, incrimination, or 3 exposure to further litigation will not, without more, compel the court to seal its records.” 4 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). “Simply 5 mentioning a general category of privilege, without further elaboration or any specific 6 linkage with the documents, [also] does not satisfy the burden.” Id. at 1184. A party’s 7 failure to meet the burden of articulating specific facts showing a “compelling reason” 8 means that the “default posture of public access prevails.” Id. at 1182. 9 Where the party states compelling reasons to seal, the court must “conscientiously 10 balance[ ] the competing interests” of the public and the party who seeks to keep certain 11 judicial records secret. Foltz, 331 F.3d at 1135. After considering these interests, if the 12 court decides to seal certain judicial records, it must “base its decision on a compelling 13 reason and articulate the factual basis for its ruling, without relying on hypothesis or 14 conjecture.” Hagestad, 49 F.3d at 1434 (citing Valley Broadcasting Co. v. U.S. Dist. Ct., 15 798 F.2d 1289, 1295 (9th Cir. 1986)). 16 The “compelling reasons” standard applies fully to dispositive motions like the one 17 at issue here. Kamakana, 447 F.3d at 1179. As compelling reasons, the parties argue that 18 (1) the documents were previously marked “confidential” under their protective order, and 19 (2) filing the documents publicly would hamper the intent under which the CLERB was 20 formed. The Court does not find those reasons sufficient to justify sealing. First, the 21 “compelling reasons” standard is invoked, even if the dispositive motion, or its 22 attachments, were previously filed under seal or protective order. Foltz, 331 F.3d at 1136 23 (“[T]he presumption of access is not rebutted where . . . documents subject to a protective 24 order are filed under seal as attachments to a dispositive motion.”). Second, California 25 state privileges like the one asserted for CLERB investigation-related documents do not 26 automatically justify sealing. See, e.g., Doe v. City of San Diego, 2014 WL 1921742, at 27 *2-3 (S.D. Cal. May 14, 2014) (rejecting argument that state privileges automatically 28 justify sealing). 19 3:16-cv-1974-BEN-LL 1 Of course, the presumption in favor of public access can be overridden, but only for 2 “good cause” where the parties show a particularized harm will result from disclosure, and 3 where the related private interests outweigh the public’s interests in access. The parties 4 have not carried their burden here. Accordingly, the motions are DENIED without 5 prejudice. Within 14 days, the parties shall either (1) file the lodged sealed exhibits 6 publicly or (2) file renewed motions to seal. Should either party choose to file a renewed 7 motion to seal, that party must demonstrate compelling and particularized reasons for 8 sealing each document. 9 III. CONCLUSION 10 For the previous reasons, summary judgment is GRANTED in favor of NP 11 Brantman and CPMG on all remaining claims, and the action is dismissed. The parties’ 12 motions to seal are DENIED without prejudice. 13 IT IS SO ORDERED. 14 15 16 Date: March 22, 2019 __________________________________ HON. ROGER T. BENITEZ United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 20 3:16-cv-1974-BEN-LL

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