Estate of James Barrick v. Moore ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THE ESTATE OF JAMES BARRICK No. 2:18-cv-02216-MCE-DB and PAMELA TAYLOR, individually 12 and as successor in interest to the Estate of James Barrick, 13 Plaintiffs, MEMORANDUM AND ORDER 14 v. 15 THE COUNTY OF SAN JOAQUIN, 16 THE SAN JOAQUIN COUNTY SHERIFF’S OFFICE, CINDY BORGES 17 and JOHNNIE MORRIS, 18 Defendants. 19 20 By way of this action, The Estate of James Barrick and Pamela Taylor, 21 individually and as successor in interest to the Estate (collectively “Plaintiffs” unless 22 otherwise indicated) seek redress from the County of San Joaquin, the San Joaquin 23 County Sheriff’s Office, Cindy Borges and Johnnie Morris (“Defendants”) as a result of 24 the suicide of James Barrick (“Decedent”) when he was in Defendants’ custody. 25 Plaintiffs allege Defendants are liable on various grounds, including constitutional 26 deprivations under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, 27 negligence, violations of the California Government Code, and entity/supervisorial 28 liability on grounds that the omissions that led to Decedent’s death were the result of a 1 custom, policy or repeated practice on the part of the County and Sheriff’s Department. 2 Presently before the Court is Defendants’ Motion for Summary Judgment (ECF No. 29), 3 which for the reasons outlined below, is GRANTED.1 4 5 BACKGROUND 6 7 On September 6, 2017, Decedent, was arrested by the San Joaquin County 8 Sheriff’s Office on multiple felony and misdemeanor charges apparently stemming from 9 his operation of a stolen vehicle while under the influence. He was processed into the 10 San Joaquin County Jail (“Jail”) as a pretrial detainee. Defs’ Statement of Undisputed 11 Fact, (“UF”), Nos. 1, 2. Philip Featherston, a correctional officer assigned to pre- 12 booking at the Jail, completed a Medical Screen Questionnaire at 4:47 p.m. Decl. of 13 Philip Featherston, ECF No. 29-6, Ex E. Decedent denied suicide attempts in the past 14 five years and further denied any present suicidal ideations. Although Featherston 15 thought he was under the influence, Decedent was nonetheless described as alert, 16 responsive and not confused. Id. 17 In an initial medical evaluation prepared later that afternoon, Decedent again 18 denied any present suicidal ideation or past suicide attempts over the same time period. 19 Decl. of Cindy Borges, ECF No. 29-3, ¶ 6, Ex. G. He was again described as alert and 20 oriented. Thereafter, at 6:30 p.m., Jail staff prepared an “ETOH [Alcohol] Withdrawal 21 Assessment” which indicated that Decedent had last consumed alcohol some four hours 22 beforehand at 2:30 p.m. Borges Decl., ¶ 12, Ex. I. 23 Because Decedent recounted a thirty-year history of drinking up to 30 beers each 24 day, he was placed on an alcohol withdrawal protocol and put into medical housing for 25 three days so that he could be properly medicated and monitored. At no point prior to 26 /// 27 1 Because oral argument would not have been of material assistance, the Court ordered this 28 matter submitted on the briefs. E.D. Cal. Local Rule 230(g). 1 September 9, 2021, when Decedent was released into the general population, did he 2 express any suicidal thoughts to Jail staff. Id. at ¶¶ 10-13. 3 Decedent also underwent a mental health evaluation and suicide risk screening 4 on the day he was booked into the Jail. Borges Decl., ¶ 9. Fong Vang, a Senior 5 Psychiatric Technician employed by the County and working at the Jail, prepared the 6 assessment at 7:20 p.m., nearly three hours after Decedent had initially been booked 7 and about five hours following his last drink. Vang Decl., ECF No. 29-9, Ex. I. While 8 Decedent recounted a history of post-traumatic stress and bipolar disorders, he 9 specifically denied yet again any current suicidal ideation or history of suicide attempts. 10 Id. Mr. Vang described Decedent as “alert and oriented” (id.) and “did not believe 11 Mr. Barrick was at-risk for suicide.” Vang Decl., ¶ 6. 12 On September 21, 2017, after being housed at the Jail for about two weeks and 13 not having sought any further care, Decedent used a computer “kiosk” available at all 14 times for inmates to request medical or psychiatric attention. UF Nos. 17, 18. He asked 15 to “speak with a psychologist or psychiatrist regarding my mental health issues that I 16 have been dealing with since childhood.” Id. at No. 19. Decedent was evaluated by a 17 Psychiatric Licensed Vocational Nurse, Navjot Dhami, the very next day, September 22, 18 2017. Id. at No. 20. Decedent again denied current suicidal ideation of any kind and 19 “firmly contracted for [his] life and safety,” stating that he “had to live for his family and 20 his dog.” Dhami Decl., ECF No. 29-4, ¶¶ 9-15, 18, Ex. F. Ms. Dhami accordingly 21 cleared Decedent to remain in the general population and ordered a referral to a Jail 22 mental health clinician for “stress/depression.” UF Nos. 23-24. Because, according to 23 Dhami, the referral for further treatment was not suicide related (Dhami Decl., ¶¶ 19-20), 24 the follow-up care she recommended would likely not commence until between seven 25 and ten business days following her request. Borges Dep., 31:17-22. 26 It is undisputed that Decedent never reported any suicidal ideation to any Jail staff 27 (whether healthcare or custodial) at any time between the time after he was booked into 28 the Jail on September 6, 2017 and the time of his death. UF Nos. 31-32. On October 1, 1 2017, however, at approximately 4:05 a.m. he was found hanging in his cell by 2 correctional officer Johnnie Morris, who was assigned to monitor the Housing Unit 5 area 3 where Decedent was housed, after two inmates reported that Decedent was not getting 4 up as directed in preparation for a formal inmate count. Id. at Nos. 56-57. Decedent 5 used a bedsheet to suspend himself from a ventilation grill in his cell located behind the 6 cell door and accompanying window. Id. at No. 58. Morris took Decedent down, called 7 for assistance, and employed emergency first aid. Id. at 59-60. Decedent was taken by 8 ambulance to the San Joaquin County General Hospital where he was later pronounced 9 dead. 10 Morris never spoke to Decedent, and at no time did Decedent ever report any 11 suicidal thoughts to Morris. Id. at Nos. 63-64. At the time of Decedent’s suicide, 12 correctional officers were mandated by County policy to perform both informal and 13 formal counts of inmates at the Jail throughout the day. Id. at No. 67. For purposes of 14 the time period involved here, informal checks were required at 11:30 a.m. and 2:00 a.m. 15 County Custody Division Policy 3.1.0, Ex. M to the Decl of Michael Tibon, ECF No. 29-7, 16 p. 4. A formal count was mandated after prisoners arose for breakfast at 4:00 a.m., 17 typically between 4:30 and 5:00 a.m. Id. In addition, general welfare checks were 18 performed on an hourly basis. Tibon Decl., ¶ 26. All of these checks are verified 19 through use of a pipe-like device that, when engaged with electronic portals located 20 throughout the cellblock area, signifies that the required checks have been made. UF 21 Nos. 41-43. 22 Defendant Morris began working at Housing Unit 5 at 12:00 a.m. the morning of 23 the incident. UF 38. The electronic records generated by the “pipe” show that he 24 performed welfare checks on the inmates housed in that area at 12:22 a.m (soon after 25 he started his shift), and at 1:00 a.m., 3:04 a.m., and 3:49 a.m. See Tibon Decl., ¶ 27. 26 The only informal count that Morris did on his shift (which would have ended at 27 /// 28 /// 1 6:00 a.m.) was at 2:00 a.m.,2 and the records show that count as being performed at 2 2:01 a.m that morning.3 Id. At deposition, Morris opined that he specifically recalls 3 seeking Decedent’s skin/movement at the time of his informal count at 2:01 a.m., as 4 required by County policy for an informal count. Morris Dep., 22:14-17. While Lt. Tibon 5 characterized Morris’ final 3:49 a.m. check on Decedent, performed some 15 minutes 6 before Decedent was found hanging, as a welfare check (Tibon Decl., ¶ 27), Morris 7 himself testified at deposition he did that round as a precursor to the 4:00 a.m. “formal” 8 check that never occurred given Decedent’s demise.4 At any rate, the parties agree that 9 the 3:49 a.m. check was not an informal count requiring Morris under County policy to 10 affirmatively see Decedent’s skin or movement/breathing. Significantly, once Morris did 11 enter Decedent’s cell after being alerted by other inmates at 4:05 a.m. and found 12 Decedent hanging behind the door, Morris saw that the blankets on his bed had 13 apparently been purposely arranged in a way that made it appear that Decedent 14 remained sleeping. Morris Dep., 29:8-15. 15 Decedent’s mother, Plaintiff Pamela Taylor, instituted the present action on 16 August 14, 2018, both individually and on behalf of her son’s estate. According to the 17 operative First Amended Complaint (ECF No. 24, hereinafter “FAC”), Taylor called Jail 18 employees repeatedly to alert them to Decedent’s mental health issues, including 19 depression, as well as the fact that he posed a suicide risk. FAC, ¶¶ 13-15. Plaintiffs 20 21 2 Morris unequivocally testified that the only informal count on his shift was at 2:00 a.m., stating that “informal count for me” is 2:00 a.m. which is consistent with that required at the Jail between 22 12:00 a.m. and 6:00 a.m. Morris Dep., 12:10-11. The previous 11:30 p.m. informal count would have been before Morris’ shift began. 23 3 An “informal” count entails checking to ensure that a correctional officer can detect either an 24 inmate’s skin or movement/breathing, whereas a “formal” count, as would have been employed at 4:00 a.m., would compare each inmate’s face with his or her cell placement. Tibon Decl., ¶¶ 25, 28-29; 25 Ex. M (County Custody Division Policy 3.1.0). The record does not reflect any particular requirements associated with a general “welfare check” as opposed to either a formal or informal count. 26 4 Morris testified that he counted the inmates just prior to 4:00 a.m. because that logistically made the remainder of the “formal” count procedure, which required several overlapping forms of record-keeping 27 that could be difficult to perform simultaneously, easier. Morris Dep., 18:8-25. At any rate, contrary to Plaintiffs’ inferences otherwise, the 3:49 a.m. check was not an “informal count” requiring that Morris 28 observe inmates’ skin or movement. 1 allege that the Jail’s failure to do anything in response was in violation of its own policy, 2 and they aver that any treatment that was provided was “deficient” and “did not 3 adequately address [Decedent’s] suicidal tendencies.” Id. at ¶ 17. Cindy Borges is one 4 of two named individual defendants, and although it is undisputed that she never herself 5 provided any treatment to Decedent, as the Jail’s Chief Medical Health Clinician she did 6 supervise its provision of mental health services. In addition, Plaintiffs sued correctional 7 officer Johnnie Morris on grounds that he did not properly monitor Decedent on the 8 morning of his suicide, alleging that if he had complied with the Jail’s policy for 9 conducting welfare checks Decedent’s death could have been averted. Id. at ¶ 18. 10 Defendants now move for summary judgment on grounds that Plaintiffs have not 11 demonstrated a viable cause of action. 12 13 STANDARD 14 15 The Federal Rules of Civil Procedure provide for summary judgment when “the 16 movant shows that there is no genuine dispute as to any material fact and the movant is 17 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 18 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 19 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 20 Rule 56 also allows a court to grant summary judgment on part of a claim or 21 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 22 move for summary judgment, identifying each claim or defense—or the part of each 23 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 24 Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a 25 motion for partial summary judgment is the same as that which applies to a motion for 26 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 27 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 28 judgment standard to motion for summary adjudication). 1 In a summary judgment motion, the moving party always bears the initial 2 responsibility of informing the court of the basis for the motion and identifying the 3 portions in the record “which it believes demonstrate the absence of a genuine issue of 4 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 5 responsibility, the burden then shifts to the opposing party to establish that a genuine 6 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith 7 Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 8 253, 288-89 (1968). 9 In attempting to establish the existence or non-existence of a genuine factual 10 dispute, the party must support its assertion by “citing to particular parts of materials in 11 the record, including depositions, documents, electronically stored information, 12 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 13 not establish the absence or presence of a genuine dispute, or that an adverse party 14 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 15 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 16 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 17 Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 18 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also 19 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 20 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 21 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 22 before the evidence is left to the jury of “not whether there is literally no evidence, but 23 whether there is any upon which a jury could properly proceed to find a verdict for the 24 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 25 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 26 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 27 Rule [56(a)], its opponent must do more than simply show that there is some 28 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 1 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 2 nonmoving party, there is no ‘genuine issue for trial.’” Id. 587. 3 In resolving a summary judgment motion, the evidence of the opposing party is to 4 be believed, and all reasonable inferences that may be drawn from the facts placed 5 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 6 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 7 obligation to produce a factual predicate from which the inference may be drawn. 8 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 9 810 F.2d 898 (9th Cir. 1987). 10 11 ANALYSIS 12 13 Plaintiffs seek relief through four state and federal causes of action: (1) a 14 42 U.S.C. § 1983 (“§ 1983”) claim against Borges and Morris based on alleged cruel and 15 unusual punishment under the Fourteenth Amendment; (2) a common law claim based 16 on negligence against all Defendants; (3) a claim under California Government Code 17 §§ 944.6 and 845.6 against Borges, Morris and the Sheriff’s Department for failure to 18 monitor, care for, and respond to persons under their control; and (4) a claim for 19 municipal liability against the entity defendants under § 1983 alleging a custom, practice 20 or repeated practice of permitting the acts and omissions which Plaintiffs allege led to 21 Decedent’s demise. 22 A. Cruel and Unusual Punishment under § 1983 23 Section 1983 permits an individual to sue “[e]very person who, under color of [law] 24 subjects” him “to the deprivation of any rights, privileges, or immunities secured by the 25 Constitution and laws.” As opposed to prisoner claims, which are governed by the 26 Eighth Amendment, a pretrial detainee is entitled to be free from cruel and unusual 27 punishment under the due process clause of the Fourteenth Amendment. Lolli v. County 28 of Orange, 353 F.3d 410, 418-19 (9th Cir. 2003). As indicated above, in their First 1 Cause of Action Plaintiffs allege that Defendants Borges and Morris failed to provide 2 adequate mental health and custodial care to Decedent, which they claim amounts to 3 cruel and unusual punishment in violation of the Fourteenth Amendment. FAC, ¶ 23. 4 The Due Process Clause requires that “persons in custody ha[ve] the established 5 right to not have officials remain deliberately indifferent to their serious medical needs.” 6 Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996). To establish a claim for the violation 7 of this right, a pretrial detainee must first show a “serious medical need.” Id. A pretrial 8 detainee may establish this element by showing he suffered from a serious injury while 9 confined or maintained a heightened risk of suicide. See Clouthier v. Cnty. of Contra 10 Costa, 591 F.3d 1232, 1240 (9th Cir. 2010), overruled on other grounds by Castro v. 11 Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (“We have long analyzed claims that 12 correction facility officials violated pretrial detainees' constitutional rights by failing to 13 address their medical needs (including suicide prevention) . . . ”). 14 Second, a pretrial detainee must show the defendant officials were deliberately 15 indifferent to that serious medical need. Conn v. City of Reno, 591 F.3d 1081, 1095 16 (9th Cir. 2010), cert. granted, judgment vacated sub nom. City of Reno, Nev. v. Conn, 17 563 U.S. 915 (2011), and opinion reinstated, 658 F.3d 897 (9th Cir. 2011). In Castro v. 18 County of Los Angeles, the Ninth Circuit held that an objective deliberate indifference 19 standard applies to pretrial detainees’ Fourteenth Amendment failure to protect claims, 20 instead of the partially subjective standard applied in prior case law. 833 F.3d 1060 21 (9th Cir. 2016) (overruling Clouthier v. County of Contra Costa and implying a failure to 22 prevent suicide case should be analyzed under an objective deliberate indifference 23 standard); see also Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) 24 (applying the objective deliberate indifference standard to claims for violations of the 25 right to adequate medical care and stating the “Supreme Court has treated medical care 26 claims substantially the same as other conditions of confinement violations including 27 failure-to-protect claims”); Horton by Horton v. City of Santa Maria, 915 F.3d 592, 599- 28 603 (9th Cir. 2019) (stating the objective standard would apply because the case 1 involved a pretrial detainee’s Fourteenth Amendment claim for violation of the right to 2 adequate medical care, but finding the case law at the time too sparse to “establish a 3 reasonable officer would [have] perceive[d] a substantial risk” that the decedent would 4 attempt suicide). 5 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 6 1051, 1060 (9th Cir. 2004). “Mere negligence is insufficient for liability.” Clement v. 7 Gomez, 298 F.3d 898, 904 (9th Cir. 2002). In order to demonstrate deliberate 8 indifference, a pretrial detainee must show: “(1) [t]he defendant made an intentional 9 decision with respect to the conditions under which the plaintiff was confined; (2) [t]hose 10 conditions put the plaintiff at substantial risk of suffering serious harm; (3) [t]he defendant 11 did not take reasonable available measures to abate that risk, even though a reasonable 12 officer in the circumstances would have appreciated the high degree of risk involved— 13 making the consequences of the defendant’s conduct obvious; and (4) [b]y not taking 14 such measures, the defendant caused the plaintiff’s injuries. Castro, 833 F.3d at 1071. 15 “With respect to the third element, the defendant’s conduct must be objectively 16 unreasonable, a test that will necessarily turn[ ] on the facts and circumstances of each 17 particular case.” Id. (internal citations and quotation marks omitted). 18 Both supervisors and non-supervisor officials may be liable for acting or failing to 19 act in a manner that is deliberately indifferent. “A supervisor may be held liable under 20 § 1983 if he or she was personally involved in the constitutional deprivation or a 21 sufficient causal connection exists between the supervisor's unlawful conduct and the 22 constitutional violation.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000), as 23 amended (Oct. 31, 2000). “The requisite causal connection can be established . . . by 24 setting in motion a series of acts by others . . . or by knowingly refus[ing] to terminate a 25 series of acts by others, which [the supervisor] knew or reasonably should have known 26 would cause others to inflict a constitutional injury.” Starr v. Baca, 652 F.3d 1202, 1207- 27 08 (9th Cir. 2011) (internal quotation marks omitted). For example, supervisors may be 28 held liable for: “their own culpable action or inaction in the training, supervision, or 1 control of subordinates; 2) their acquiescence in the constitutional deprivation of which a 2 complaint is made; or 3) for conduct that showed a reckless . . . indifference to the rights 3 of others.” Id. 4 Given the above, the key to establishing any potential liability under the First 5 Cause of Action is whether the facts and evidence before this Court are sufficient to 6 demonstrate that either Cindy Borges or Johnnie Morris were “deliberately indifferent” to 7 Decedent’s serious medical needs so as to survive summary judgment on that issue. 8 First, with respect to Cindy Borges, it is undisputed that she never provided any 9 mental health treatment to Decedent directly, or had any contact with him, so as to be 10 liable for any shortcoming or omission on that basis. UF No. 34. Nor is there any evidence 11 that she interfered with any treatment decision by any of the mental health staff that 12 worked at the Jail under her supervision. In addition, and at any rate, Decedent’s intake 13 process on September 6, 2017, documents three separate instances, spanning over a 14 period of nearly three hours, where Decedent consistently denied current suicidal ideation 15 or any history thereof. Id. at Nos. 4-7. That itself belies any claim that Jail staff were 16 deliberately indifferent in failing to provide suicide-related mental health care following 17 Decedent’s booking when no notice of any such proclivity on his part had been provided.5 18 There is also no evidence that Decedent expressed any suicidal thoughts while 19 being medically monitored for alcohol withdrawal symptoms between September 6 20 and 9, 2017. Then, when Decedent did request mental health assistance through a 21 healthcare kiosk on September 21, 2017, for “mental health issues [he had] been 22 dealing with since childhood,” he indicated nothing about suicide. UF No. 19. Finally, 23 when he was evaluated the next day in response to his request, Decedent again denied 24 25 5 The Court is unpersuaded by Plaintiffs’ inference that Decedent’s alcohol use prevented him from providing accurate information on the day he was arrested and booked into the Jail. Decedent was described as alert and oriented, even if still under the influence, in two separate evaluations that day, one 26 occurring nearly five hours after consuming his last drink. Moreover, and at any rate, whether Decedent was cognitively impaired during the booking process due to alcohol calls for expert opinion, and no such 27 evidence (or any evidence that he was incapable of providing accurate responses) has been provided beyond mere speculation, and speculation alone cannot defeat summary judgment. See Nelson v. Pima 28 Comm. College, 84 F.3d 1075, 1082 (9th Cir. 1996). 1 considering suicide, and according to the nurse’s note, “firmly contracted for [his] life and 2 safety.” Dhami Decl, Ex. F. It was not unreasonable, let alone deliberately indifferent, 3 for the nurse to simply make a clinical referral for “stress/depression” follow-up care 4 given what Decedent told her (as well as her own conclusion that Decedent was not 5 suicidal). Id. at ¶¶ 19, 20. 6 While follow-up treatment was not provided prior to Decedent’s suicide some 7 nine days later, Cindy Borges testified that a non-emergency referral for care by a 8 mental health clinician could take between seven and ten business days to process. 9 Again, none of this evinces deliberate indifference. Borges Dep., 31:17-22. During the 10 22 days Decedent was housed at the Jail, he was provided two mental health 11 evaluations and denied on four separate occasions having any suicidal ideations. UF 12 Nos. 81-82. There was no notice of Decedent’s risk of suicide, let alone knowledge that 13 care was needed in the face of such notice, as deliberate indifference requires. As the 14 unrebutted declaration of Defendants’ psychiatric expert, Dr. Stuart Pickel, indicates, 15 “[w]ithout having some indication from Decedent, either verbally or behavioral (sic), that 16 he had suicidal ideation and/or intent, the jail personnel could not reasonably be 17 expected to know that he was intending to commit suicide.” Pickel Decl, ECF No. 29-5, 18 ¶ 7. 19 Plaintiff Pamela Taylor’s claim that she tried to call the Jail on many occasions to 20 report the fact that she believed her son to be suicidal presents a slightly closer 21 question. It is undisputed, however, that Cindy Borges called Ms. Taylor back and left a 22 message on September 14, 2017. UF No. 28.6 While Taylor claims she actually spoke 23 6 Plaintiffs offer an exhibit what they allege to be cellphone records from Ms. Taylor suggesting 24 she may have called the Jail more than 40 times between September 8, 2017 and September 23, 2017. Decl. of Jeffrey Eisinger, ECF No. 31-3, Ex. 1. The defense objects to those records as lacking proper 25 foundation and constituting hearsay, and the Court agrees. The records were not authenticated by Ms. Taylor at her deposition, and calls placed to an area code (209) corresponding with the Jail’s location in Stockton are simply circled without even establishing that the phone numbers in question belong to the 26 Jail. The Court is also left to speculate as to whether the calls were even made by Ms. Taylor, let alone whether they were made to alert Jail personnel to his mental health condition given Ms. Taylor’s testimony 27 that she also spoke to her son two or three times while incarcerated at the Jail (Taylor Dep., 48:18-23) and may well have attempted to call him on additional occasions. Defendants’ objections to the telephone 28 records are accordingly SUSTAINED. 1 to someone at the Jail on four or five occasions and at one time even reached someone 2 in mental health, she conceded at deposition that she never spoke to anyone after 3 Decedent was seen for an additional mental health evaluation on September 22, 2017, 4 and she was aware from both a phone call from her son as well as a letter that he had 5 requested mental health care on September 21, 2017, and been seen by someone 6 thereafter. Taylor Dep., 82:21-83:16, 88:11-17, 97:13-6. Even if Taylor had warned the 7 Jail that Decedent had told her in the past that he had been suicidal, the fact remains 8 that at the time of his additional evaluation after his mother had made the calls she 9 alleges, Decedent specifically denied being suicidal, causing the psychiatric nurse 10 Dhami to conclude he did not pose a present risk of suicide. There is no suggestion that 11 any further follow-up would have been provided had Jail personnel in fact been warned 12 by Ms. Taylor, and consequently there is no triable issue in that regard.7 13 The second individual named by Plaintiffs in their First Cause of Action as being 14 deliberately indifferent to Decedent’s medical needs is, as indicated above, correctional 15 officer Johnnie Morris. It is undisputed, however, that Decedent never reported any 16 suicidal thoughts to Morris and that Morris had no knowledge of such thoughts 17 otherwise. UF Nos. 64, 65. Plaintiffs allege that Morris’ failure to conduct adequate 18 safety checks on Decedent the night he committed suicide allowed him to do so. Jail 19 policy required that a combination of formal and informal counts be provided, as well as 20 a more cursory welfare check to occur on an hourly basis. During the hours preceding 21 Decedent’s suicide, an informal count was required pursuant to the Jail’s policy at 22 2:00 a.m. UF No. 44. As indicated above, informal counts conducted during nighttime 23 hours (at 11:30 p.m. and 2:00 a.m.) entail not only a count of inmates but also visual 24 confirmation of each inmate’s well-being through the officer’s observation of either an 25 inmate’s skin or movement. UF No. 49, Tibon Decl, Ex. M. Jail records, which as 26 7 The Court recognizes Ms. Taylor’s deposition testimony that she did at some point speak with an unidentified individual at the Jail who allegedly stated they were “aware” of Decedent’s problems and “on” 27 the situation. Taylor Dep., 89:5-8. Not only is that claim too vague to present any real triable issue, as indicated above it also occurred before Decedent’s second mental health evaluation and the information 28 he provided as outlined above. 1 indicated above were generated automatically through electronic portals corresponding 2 with given cells that were triggered through staff’s insertion of a pipe-like tool into each 3 portal, show that Morris, whose responsibility on the evening in question included the cell 4 occupied by Decedent, in fact conducted a check at 2:01 a.m. corresponding with the 5 time requirement for performing an informal count. Tibon Decl., ¶ 27. Morris testified 6 that he saw Decedent’s skin at the time of that count. Morris Dep., 22:14-17. In 7 addition, the records reflect additional hourly welfare checks at 1:00 a.m. and 3:04 a.m., 8 and 3:49 a.m. and further reflect that Morris also checked Decedent’s cell at 12:22 a.m., 9 shortly after he began working that morning on Housing Unit 5. Tibon Decl., ¶ 27. 10 Therefore, during the four hours before Decedent’s suicide Morris had checked on his 11 cell a total of five occasions. He did so in accordance with County policy and Plaintiffs 12 have not demonstrated the high bar required to show deliberate indifference. 13 It is undisputed that a formal count was then to occur between 4:30 and 14 5:00 a.m., after inmates arose for the day. UF No. 52. As indicated above, that entailed 15 both a count and a facial check of each inmate against their photo identification. UF 16 No. 55. Morris testified that because of the multiple steps required, he did the “count” 17 portion of the procedure at about 3:49 a.m. according to computer generated records. It 18 was only after the inmates had been awoken at 4:00 a.m., less than fifteen minutes later, 19 that a neighboring cellmate tried to rouse Decedent and discovered him hanging from a 20 sheet draped through a ventilation grate in the ceiling (located behind the cell door) and 21 alerted custodial staff. When Morris responded, he observed the blankets on 22 Decedent’s bed arranged in such a way to make it look like Decedent remained there. 23 Morris Dep., 29:8-15. 24 Even if Decedent thereby “fooled” Morris into thinking he was still in bed at the 25 time of his last 3:49 a.m. check, that does not mean that Morris was deliberately 26 indifferent in drawing the conclusion he did. Additionally, after responding immediately 27 to Decedent’s cell after being told that he was hanging, Morris cut Decedent down, and 28 with the help of another correctional officer tried to administer first aid before Decedent 1 was taken to the San Joaquin General Hospital and later pronounced dead. UF 2 Nos. 59-62. Again, none of this suggests deliberate indifference on Morris’ part. 3 Because Plaintiffs have not shown any genuine issue of triable fact that either 4 Cindy Borges or Johnnie Morris were deliberately indifferent to Decedent’s health care 5 needs, summary judgment as to the First Cause of Action is granted in their favor as 6 requested. 7 B. Negligence 8 Plaintiffs’ Second Cause of Action alleges negligence against not only Defendants 9 Borges and Morris, but the San Joaquin County Sheriff’s Department as well. Plaintiffs 10 assert that Defendants had a duty to monitor Decedent and failed to do so despite 11 having “had access to information pertaining to the mental problems experienced by 12 Barrick and his history of suicide attempts, particularly via his mother.” FAC, ¶ 25. 13 They allege that Defendants were negligent by “ignoring his mental health needs, failing 14 to house him in a suicide-proof cell, and failing to follow department policy as far as 15 welfare checks on inmates during the night hours.” Id. Plaintiffs point to no other actions 16 as constituting negligence. 17 In California, a plaintiff must prove the following elements for a negligence claim: 18 (1) a legal duty to use due care; (2) a breach of that duty; (3) causation; and 19 (4) damages. A negligent act “is not the proximate cause of [a decedent’s] alleged 20 injuries if another cause intervenes and supersedes . . . liability for the subsequent 21 events.” Campos v. County of Kern, No. 1:14-cv-01099-DAD-JLT, 2017 WL 915294 22 at *14 (E.D. Cal. 2017) (internal citations omitted). 23 Defendants move for summary judgment on Plaintiffs’ negligence claim on 24 causation grounds, arguing there is no evidence that any shortcoming or omission on 25 the part of the Jail or its staff contributed to Decedent’s suicide. Defendants point to the 26 undisputed fact that Decedent never told anyone at the Jail that he was suicidal, despite 27 being specifically questioned on that topic three times during his intake process on 28 September 6, 2017, and then yet again on September 22, 2017, after Decedent 1 requested mental health care for “issues” he had experienced since childhood. UF 2 No. 19. Importantly, Decedent neither indicated on the evaluation request that he was 3 suicidal or told the clinician who assessed him the next day that he was considering 4 suicide. Id., see also Dhami Decl, Ex F. Indeed, according to notes prepared as a result 5 of the evaluation, Decedent “firmly contracted for [his] life and safety.” Dhami Decl, ¶¶ 9- 6 15, 18. 7 In addition, while Plaintiffs suggest that Defendant Borges was negligent for not 8 talking to Decedent’s mother, who alleges she would have told Borges of her son’s 9 suicidality, Borges did attempt to return at least one of Ms. Taylor’s calls. More 10 importantly, however, all of the calls that Pamela Taylor does claim to have made were 11 apparently placed before her son was evaluated on September 22, 2017, in the wake of 12 his treatment request. Even had she spoken with Borges and told her that Decedent 13 was suicidal, there is absolutely no evidence that anything else would have been done 14 besides the evaluation that Defendants performed anyway. 15 Plaintiffs’ other arguments are equally unavailing. As detailed in the preceding 16 section, Defendant Morris did follow County protocol in checking Decedent’s status 17 during the hours before his suicide. In addition, there was no indication that Decedent 18 should have been placed in a suicide-proof cell since he never identified being suicidal in 19 the first place. In sum, then, there is no triable issue suggesting that either Borges or 20 Morris were negligent, and also no evidence that the Sheriff’s Office was negligent for 21 any action or inaction of its own.8 22 C. Statutory Liability Under the California Government Code 23 Plaintiffs’ Third Cause of Action, like its negligence claim, similarly argues that 24 Defendants had “a duty to monitor, care for and respond” to pretrial detainees within 25 8 To the extent that Plaintiffs argue that the ventilation grill in Decedent’s cell should not have been amenable to being used as a tie-off point for attaching a noose, it is undisputed that at the time of the 26 subject incident the grill complied with applicable safety standards, since the Jail’s physical plant had been found to be in compliance with applicable regulations by the Board of State and Community Corrections on 27 May 30, 2017. UF No. 72. In addition, prior to Decedent’s death, no inmate had hung himself from a ventilation grate in any event. UF No. 71. Therefore, the Sheriff’s Office cannot be negligent due to the 28 presence of the grate either. 1 their custody, and as with the Second Cause of Action it is directed to Defendants 2 Borges, Morris, and the San Joaquin County Sheriff’s Office. The difference is that 3 instead of being rooted in common law negligence, the Third Cause of Action purports to 4 be premised on the provisions of California Government Code §§ 845.6 and 844.6. 5 Section 845.6, while providing that neither a public entity or its employee is ordinarily 6 liable for failure to provide a prisoner with medical care, both may in fact incur liability if 7 “the employee knows or has reason to know that the prisoner is in need of immediate 8 medical care and he fails to take reasonable action to summon such medical care. . . “ 9 California courts have made it clear that any such liability is limited “to serious and 10 obvious medical conditions requiring immediate care.” Watson v. State of California, 11 21 Cal. App. 4th 836, 841 (1993). Section 844.6 more generally states that while “a 12 public entity is not liable for . . . an injury to any state prisoner” that does not preclude a 13 finding of liability for a public employee’s negligence. 14 The reasoning employed above in granting summary judgment as to Plaintiffs’ 15 negligence claim, and to their claim that Defendants were deliberately indifferent in 16 failing to attend to Decedent’s serious medical need. Given Decedent’s consistent 17 denial of suicidal ideation on multiple occasions through his booking process and during 18 his mental health evaluation on September 22, 2017, no identified “serious and obvious 19 medical condition” had been identified, let alone a failure to immediately respond to that 20 need. Summary judgment is also granted as to the Third Cause of Action. 21 D. Entity Liability under Monell 22 Plaintiffs’ final Fourth Cause of Action asserts municipal and supervisorial liability 23 against both San Joaquin County and the San Joaquin County Sheriff’s Office.9 24 Plaintiffs argue that Defendants ratified a course of conduct, and made it “tantamount to 25 9 Plaintiffs do not distinguish between the claimed liability of the County on the one hand and the Sheriff’s Office on the other. This is not surprising since the FAC makes it clear, at least with respect to 26 operation of the Jail, that the Sheriff’s Office is a County agency and subject to its control. FAC, ¶ 5. That characterization, in turn, is consistent with authority recognizing that sheriff’s departments operate for 27 counties when administering local prison policy, with the counties thereby “hold[ing] the ultimate power over the jails.” Streit v. County of Los Angeles, 236 F.3d 552, 561 (9th Cir. 2001). Consequently, any 28 potential liability of the County and the Sheriff’s Department in a case like this appears to be synonymous. 1 a custom, policy or repeated practice, of encouraging deliberate indifference to the 2 physical and mental well-being of inmates under their control.” FAC, ¶ 31. As factual 3 support, Plaintiffs claim 1) that it is Defendants’ standard practice “to do nothing when 4 notified by family members of detainees of the likelihood that the detainee could harm 5 himself”; and 2) that it is also standard practice for correctional officers working during 6 the night/early morning hours to deviate from “written department policy” when doing 7 counts and welfare checks of inmates in their cells. Id. at ¶ 32. Plaintiffs contend that 8 had these practices not been present and had correctional officers been properly 9 trained, Decedent’s death could have been avoided. Id. at ¶ 34. 10 Under Monell v. Dep't of Soc. Servs. of City of New York, “[l]ocal governing 11 bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive 12 relief.” 436 U.S. 658, 690 (1978). To establish municipal liability, the plaintiff must show 13 that a policy or custom led to the plaintiff’s injuries and the policy or custom “reflects 14 deliberate indifference to the constitutional rights of its inhabitants.” City of Canton, 15 Ohio v. Harris, 489 U.S. 378, 385-92 (1989). The case law, however, carefully 16 delineates so called Monell liability, which makes such an entity responsible for its own 17 illegal acts, from vicarious liability for the conduct of its employees under § 1983, which 18 does not attach. Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (quoting Pembaur v. 19 Cincinnati, 475 U.S. 469, 479 (1986)). To constitute deliberate indifference, an entity’s 20 shortcomings must be “obvious,” with inadequacy “so likely to result in violation of 21 constitutional rights that the policymakers . . . can reasonably be said to have been 22 deliberately indifferent . . .” City of Canton, 489 U.S. at 390. Even if no explicit policy is 23 identified, a plaintiff may still establish municipal liability upon a showing of a permanent 24 and well-settled practice by the municipality that gave rise to the alleged constitutional 25 violation. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). 26 Here, the County and Sheriff’s Office had a policy of referring inmates for mental 27 health evaluation should any concern regarding suicide during the course of their 28 incarceration, and for purposes of the present case that concern may arise from 1 information provided by relatives like Ms. Taylor. Correctional Health Care Services 2 Policy 6.06, Ex. K to the Borges Decl. Although Ms. Taylor claims she wanted to alert 3 the Jail’s mental health staff about her son’s suicidality and states she attempted to call 4 on multiple occasions, the fact remains that Cindy Borges did return one of Ms. Taylor’s 5 calls. Since Taylor and Borges never ultimately spoke, however, Borges was not 6 informed of any such tendencies on Decedent’s part. Borges’ unsuccessful exchange of 7 phone calls with Taylor does not demonstrate an unconstitutional policy or practice or 8 Monell liability on the part of the County or Sheriff’s Office. 9 Even if Taylor had successfully conveyed information about her son to Borges, 10 Decedent himself requested mental health care and during an evaluation the very next 11 day specifically denied any suicidal tendencies. There is no evidence that any other 12 course of action would have been taken given those denials, and the measures Jail staff 13 took were neither deliberately indifferent nor inconsistent with County policy under the 14 circumstances. Additionally, in order to incur liability under 42 U.S.C. § 1983 on a 15 Monell theory, Defendants’ alleged policy or practice must have been the “moving force 16 of the constitutional violation.” Polk County v. Dodson, 454 U.S. 312, 326 (1981). 17 Given the intervening September 22, 2017, evaluation that occurred after Taylor tried to 18 call, and Decedent’s express denials of any suicidality in the course of that evaluation, 19 there is simply no evidence that any information Taylor provided would have led to a 20 different result. 21 Plaintiffs have also adduced no admissible evidence whatsoever that the Jail 22 ignored inmates’ risk of suicide in other instances so as to suggest a policy or practice of 23 deliberate indifference to such risk for which the County can incur liability under Monell. 24 While true that other inmate suicides in the Jail have occurred, that fact alone does not 25 suggest that this was occasioned by the County’s deliberate indifference. As defense 26 expert James Sida indicated at his deposition, suicides in County jails occur at three 27 times the corresponding rate for the general population at large, and some 93 percent of 28 jail suicides are effectuated by hanging. Sida Dep, 152:2-14. 1 With respect to Plaintiffs’ claim that it was “standard practice” for correctional 2 officers working in the nighttime hours to not properly verify that inmates were in their 3 bed and moving, there is again no evidence that this occurred in the present case. 4 County policy requires that such verification occur only in the context of an informal 5 count, and the only such count that occurred during the four hours prior to Decedent’s 6 suicide (when Defendant Morris was monitoring Housing Unit 5) was mandated by 7 County policy to occur at 2:00 a.m. Morris Dep., 12;1 10-11. The evidence indicates not 8 only that Morris performed the requisite count at 2:01 a.m., but that he also saw 9 Decedent’s flesh/movement at that time. Tibon Decl., ¶ 27, Morris Dep., 22:14-17. Also 10 consistent with County policy were the hourly welfare checks that Morris performed on 11 four other occasions during the shift in question. The only “evidence” that Plaintiffs offer 12 to suggest that the counts/checks were not properly performed was a statement taken by 13 another inmate and included within the Incident Report prepared as a result of 14 Decedent’s suicide. While the inmate in question, Luis Candido, expressed his belief 15 that “some” correctional officers do not look into cells when conducting their checks, his 16 statement to that effect in the Incident Report amounts to unauthenticated hearsay and 17 cannot be relied upon in opposing summary judgment. See., e.g., Carrasco v. Metro 18 PD, 4 Fed Appx. 414, 416 (9th Cir. 2001).10 19 Given all of the above, Plaintiffs’ Fourth Cause of Action also does not survive 20 summary judgment. 21 /// 22 /// 23 10 While Plaintiffs also cite to a prior order from this court in Lum v. County of San Joaquin, Case 24 No. 2:10-cv-1807-LKK-DAD (ECF No. 107) that case is distinguishable from the case at bar because the correctional officer there falsely stated he had checked on the Decedent every 15 minutes and made log 25 entries accordingly when in fact he had not done so. In the present case, on the other hand, there is no dispute that Morris did the checks recorded electronically, the only issue is whether those checks were adequate. 26 The Court notes that Defendants have filed formal objections to certain evidence offered by Plaintiffs, including their submission of portions of the Lum order delineated above. Some of those 27 objections have been addressed elsewhere in this Memorandum and Order. To the extent they have not been ruled upon in that manner, the Court did not rely on the evidence in question and accordingly need 28 not specifically rule on those remaining objections. 1 CONCLUSION 2 3 For the reasons just stated, Defendants’ Motion for Summary Judgment (ECF 4 || No. 29) is GRANTED."' The Clerk of Court is directed to enter judgment in favor of 5, | Defendants and to close the file. 6 IT |S SO ORDERED. 7 g | Dated: November 15, 2021 ly Z & 9 tp AOA, 0 ON cen Saar suoce 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 " The Court recognizes the additional claim posited by Defendants Borges and Morris that they are entitled to qualified immunity to the extent any constitutional violation is present. Because the Court 28 pas concluded that no such violation occurred, it need not address qualified immunity and declines to do 21