Ottele v. Martinez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUSAN OTTELE, on her own behalf and Case No. 1:22-cv-00187-JLT-CDB on behalf of the ESTATE OF ADAM J. 12 COLLIER, FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS’ MOTION FOR 13 Plaintiff, SUMMARY JUDGMENT 14 v. (Doc. 57) 15 OSCAR MARTINEZ AND AARON HODGES, 14-DAY OBJECTION PERIOD 16 Defendants. 17 18 Plaintiff Susan Ottele is the mother of Adam Collier (Collier or Decedent), who died by 19 suicide while incarcerated at Kern Valley State Prison in Delano, California, on October 17, 20 2020. Plaintiff filed the initial complaint on February 14, 2022 (Doc. 1), and the operative First 21 Amended Complaint (FAC) on May 25, 2022. (Doc. 13). Plaintiff raises claims pursuant to 42 22 U.S.C. § 1983 for deliberate indifference against correctional officers Oscar Martinez and Aaron 23 Hodges.1 Plaintiff also raises Fourteenth Amendment substantive due process claims for loss of 24 companionship, as well as California state law claims for failing to provide the Decedent with 25 adequate mental and physical health care (Cal. Civil Code § 52.1), and a wrongful death and 26 survival action under C.C.P. §§ 377.30, 377.60 et seq. Id. 27 1 On March 2, 2023, Defendants filed a Notice of Death indicating that Defendant Hodges died on January 25, 2023. (Doc. 33). Defendant Hodges has not been dismissed from or 1 Pending before the Court is Defendants’ motion for summary judgment, filed November 2 3, 2023. (Doc. 57). Plaintiff filed an opposition on November 17, 2023 (Doc. 59), and 3 Defendants filed a reply on November 27, 2023. (Doc. 60). Defendants’ motion was referred by 4 the assigned district judge to the undersigned for issuance of findings and recommendations on 5 January 26, 2024. (Doc. 66). Thereafter, the Court ordered Plaintiff to respond to certain 6 evidentiary challenges raised in Defendants’ reply brief (Doc. 67) and Plaintiff filed a response on 7 February 2, 2024 (Docs. 68, 69). For the reasons set forth below, the undersigned recommends 8 that Defendants’ motion for summary judgment be granted.2 9 BACKGROUND 10 Adam J. Collier was an inmate at Kern Valley State Prison (“KVSP”) at the time of his 11 passing on October 17, 2020. (Doc. 13 ⁋ 1). Collier entered the custody of the California 12 Department of Corrections and Rehabilitation (“CDCR”) on March 21, 2016, and was transferred 13 to KVSP on March 10, 2020. (Doc. 59-4 p. 101).3 Collier has a long-documented history of 14 suicide attempts via various methods. According to CDCR records, those methods include 15 attempted overdose by ingesting pills in 2006 (listed as “severe), stabbing himself in the neck in 16 February 2017 (“moderate”), cutting his neck with a paperclip in July 2019 (“minor-superficial”) 17 as well as an unspecified attempt to cut himself in August 2019 (“moderate”). (Id. p. 12). 18 Notably, on May 23, 2020, Collier committed self-harm (“minor-superficial”) by using his 19 toenail clippers to excoriate the top layer of his neck as well as the skin on his bicep. Id. 20 According to a medical health form filed by KVSP staff on May 29, 2020, Collier denied intent to 21 die, and stated that he harmed himself to avoid an unpaid drug debt. Id. at 12-13. The form 22 documented that Collier had a history of high rescue, low risk behaviors without intent to die. Id. 23 After Collier’s suicide attempt in May 2020, he was transferred to Facility C, Building 24 25 2 In her opposition to Defendants’ motion for summary judgment, Plaintiff asserted the Court should stay the action until her then-pending appeal to the Ninth Circuit of this Court’s 26 ruling on her earlier motion to substitute named parties for Doe Defendants was resolved. (See Doc. 59 p. 29). Since that time, the Ninth Circuit has dismissed the appeal for lack of 27 jurisdiction, thus mooting the issue. See Ottele v. Martinez et al., No. 23-3084 (Doc. 18). 1 eight, cell 221. (Doc. 57-2 ⁋ 1). Cell 221 was located on the upper tier of the building. Id. 2 Facility C is a special housing unit for inmates enrolled in the Enhanced Outpatient Program 3 (“EOP”). (Doc. 59-4 pp. 33, 84). Inmates enrolled in the EOP receive a higher level of care from 4 correctional officers. (Id. p. 33). In turn, correctional officers assigned to Facility C receive 5 training on suicide prevention, including how to identify telltale signs of suicidal ideation. Id. 6 On October 17, 2020, Plaintiff was given breakfast in his cell during the morning hours. 7 (Id. p. 100). Plaintiff did not report for the inmate count at noon. Id. Defendants Hodges and 8 Martinez worked as floor officers in KVSP in the same facility where Collier was housed. 9 Defendants’ shift on October 17, 2020, lasted from 2:00 p.m. to 10:00p.m. (Doc. 59-2 p. 2; Doc. 10 59-4 p. 40). Defendants were responsible for conducting periodic checks on the inmates housed 11 there. These checks included confirming whether the inmates were alive by visually observing 12 them and counting “breathing flesh.” (Doc. 59-4 p. 41). Defendant Martinez conducted the count 13 in the first tier of cells numbered 101 to 132, while Defendant Hodges conducted the count of the 14 cells in the second tier. (Id. p. 82). On the date Collier died by suicide, a document to be read by 15 correctional officers that sets forth their responsibilities while on duty – referred to as a “post 16 order” – provides at Paragraph 2 that the floor officers were primarily responsible for maintaining 17 order and security “for all areas of the housing unit.” (Id. pp. 35, 40). Paragraph 2 also provides: 18 “You shall provide observation/coverage of all activities within your area of responsibility.” Id. 19 In a supplemental report drafted by Defendant Hodges at the request of J. Melvin two 20 days after Collier’s death by suicide, Hodges reported that he observed Collier “in his cell on my 21 [Hodges’] first security check. He was standing at the back of the cell and I asked him, ‘Hey 22 what’s up Collier.’ Inmate Collier responded back, ‘Not much man.’” (Doc. 57-4 p. 50). 23 During his second inmate check at approximately 3:32 p.m., Hodges approached Collier’s 24 cell and noticed that a bed sheet had been hung up, which partially blocked Hodges from fully 25 seeing Collier. (Doc. 57-2 ⁋ 6) (citing Doc. 57-5 “Welsh Decl.” ⁋ 2 & Ex. A). Hodges attempted 26 to get Collier’s attention by banging his hand on the cell door and shouting Collier’s name, but 27 Collier would not respond. (Doc. 57-1 p. 4). Hodges then activated his personal alarm device 1 was the first time that Martinez was on the second tier of the building during his shift that day. 2 Other prison staff also responded to the alarm, and Collier was removed from his cell in an 3 unresponsive condition. (See Doc. 59-2 p. 3 n.7). 4 According to the coroner’s report, Collier was transported to a treatment and triage area at 5 around 3:40 p.m., and Collier was pronounced dead at 4:00 p.m. (Doc. 59-4 p. 100). Defendant 6 Hodges advised Deputy Coroner Mary Abidayo (“Abidayo”) that Collier had previous suicide 7 attempts, including one attempt three years earlier during which Collier used a sharp object to cut 8 both sides of his neck, and prior incidents where Collier cut his own legs. Id. at 101. According 9 to Abidayo’s report, Collier had a single cell designation due to in-cell violence. Id. 10 Abidayo arrived at Collier’s cell at around 6:35 p.m. and noted that there was blood at the 11 head of Collier’s bed. A plastic bag with blood-soaked towels also was located at the head of the 12 bed. Id. There was also a broken nail clipper at Collier’s desk which had blood present on it. Id. 13 Abidayo found that Collier’s death was due to exsanguination and ruled his death a suicide. Id. at 14 103. 15 Collier previously attempted suicide with nail clippers, as an inmate of KVSP, less than 16 five months prior to his successful attempt. Thereafter, according to a “Mental Health Form” 17 logged by a CDCR clinical psychologist on May 29, 2020, “[k]eeping sharp objects away will 18 assist to keep [Collier] safe.” (Doc. 59-3 p. 9, #5 (citing Doc. 59-6 “Kantorová Decl.” ⁋ 5); Doc. 19 59-4 p. 19 (AG010923)). There were no medical or mental health care staff orders prohibiting 20 Collier from possessing sharp objects, including nail clippers, during the month before his death. 21 (Doc. 57-3 “Martinez Decl.” ⁋⁋ 7, 13; Doc. 57-4 “Hancock Decl.” ⁋ 3).4 22 Officer Martinez was not aware that Collier was ever prohibited from possessing nail 23 clippers, nor that Collier ever possessed them. (Martinez Decl. ⁋ 8). Martinez was not aware that 24 Collier previously attempted suicide, cut himself, or had cuts, marks, or other visible indications 25 26 4 Although Plaintiff in her opposition brief (Doc. 59 p. 22) and in her response to Defendants’ statement of undisputed facts (Doc. 59-2 p. 5, #16) challenges that no orders or 27 policies prohibited Collier from possessing sharp objects, none of the citations to which Plaintiff refers in support of the dispute in fact establish that Collier was prohibited from possessing sharp 1 that he previously cut himself. (Id. ⁋⁋ 9-11). Further, Martinez was only ever aware of a calf 2 injury on Collier’s leg, which to his knowledge was not the result of having attempted suicide or 3 inflicted self-harm. (Id. ⁋ 12). Neither Martinez nor Hodges was authorized to access an 4 inmate’s medical or mental health records, nor were they aware of Collier’s mental health 5 condition. (Id. ⁋ 13).5 6 If an inmate housed in the EOP was required to be treated differently than other inmates 7 generally were treated, for example through protective or precautionary measures, then this action 8 was required solely at the direction of the KVSP medical or mental health staff. Id. There is no 9 record evidence that Martinez or Hodges ever was directed to take any such measures concerning 10 Collier. (Martinez Decl. ⁋ 13; Hancock Decl. ⁋ 3). 11 APPLICABLE LAW 12 Summary judgment is appropriate where there is “no genuine dispute as to any material 13 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 14 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 15 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 16 while a fact is material if it “might affect the outcome of the suit under the governing law.” 17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 18 F.2d 1422, 1436 (9th Cir. 1987). 19 Each party’s position must be supported by: (1) citing to particular portions of materials in 20 the record, including but not limited to depositions, documents, declarations, or discovery; or 21 (2) showing that the materials cited do not establish the presence or absence of a genuine dispute 22 or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R. 23 Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, 24 5 Once again, while Plaintiff in her opposition brief (Doc. 59 p. 22) and in her response to 25 Defendants’ statement of undisputed facts (Doc. 59-2 p. 4, #10-13) challenges Martinez’s attestations to lack of knowledge of Collier’s conditions and history of suicide attempts, she 26 advances only arguments that Martinez should have known about Collier’s conditions, not that he, in fact, did know. Similarly, Plaintiff disputes that Defendants had access to Collier’s mental 27 health records by pointing out that they were obligated to share with medical staff relevant observations and to refer suicidal inmates for treatment – none of which refutes that neither 1 but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 2 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court has 3 discretion in appropriate circumstances to consider other materials, [but] it need not do so”). 4 Furthermore, “[a]t summary judgment, a party does not necessarily have to produce evidence in a 5 form that would be admissible at trial.” Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 6 (9th Cir. 2011) (citations and internal quotations omitted). The focus is on the admissibility of 7 the evidence’s contents rather than its form. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 8 F.3d 840, 846 (9th Cir. 2004). 9 “The moving party initially bears the burden of proving the absence of a genuine issue of 10 material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 11 Corp. v. Catrett, 477 U.S. at 317, 323 (1986)). To meet its burden, “the moving party must either 12 produce evidence negating an essential element of the nonmoving party’s claim or defense or 13 show that the nonmoving party does not have enough evidence of an essential element to carry its 14 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 15 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this initial burden, the burden 16 then shifts to the non-moving party “to designate specific facts demonstrating the existence of 17 genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 18 477 U.S. at 323). The non-moving party must “show more than the mere existence of a scintilla 19 of evidence.” Id. (citing Anderson, 477 U.S. at 252). However, the non-moving party is not 20 required to establish a material issue of fact conclusively in its favor; it is sufficient that “the 21 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 22 versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 23 F.2d 626, 630 (9th Cir. 1987). 24 The court must apply standards consistent with Rule 56 to determine whether the moving 25 party has demonstrated the absence of any genuine issue of material fact and that judgment is 26 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 27 “[A] court ruling on a motion for summary judgment may not engage in credibility 1 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 2 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 3 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 4 198 F.3d 1130, 1134 (9th Cir. 2000). 5 DISCUSSION 6 A. Plaintiff’s Objections to Defendants’ Evidence in Support of Motion for 7 Summary Judgment. 8 In response to Defendants’ motion for summary judgment, Plaintiff filed a document 9 cataloging her “objections” to evidence on which Defendants rely. (Doc. 59-1). The objections 10 are presented in a table identifying the evidence to which Plaintiff objects, the basis for the 11 objection, and prompts the Court to indicate a “ruling” per objection, either “sustained” or 12 “overruled.” The objections largely challenge the foundation and purported hearsay nature of the 13 referenced evidence. 14 With the exception of Plaintiff’s objections pertaining to the “Staff Narrative” portion of a 15 report about Collier’s death by suicide attached and/or referred to in the defense declarations of J. 16 Welsh, B. Hancock and J. Abuyen (Doc. 59-1 pp. 2-4), the Court declines Plaintiff’s request to 17 rule on the foundational and hearsay objections. “At the summary judgment stage, we do not 18 focus on the admissibility of the evidence’s form. We instead focus on the admissibility of its 19 contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Accord, Nevada Dep’t of 20 Corr., 648 F.3d at 1019; Carmen, 237 F.3d at 1031. If the contents of a document are presented in 21 a form that would be admissible at trial, the mere fact that the document itself might be 22 excludable hearsay provides no basis for refusing to consider it on summary judgment. Fraser, 23 342 F.3d at 1036-37. 24 B. Eighth Amendment Deliberate Indifference (Claims One through Three) 25 1. Legal Standard 26 “[T]he Eighth Amendment’s prohibition against cruel and unusual punishment, made 27 applicable to the States through the Fourteenth Amendment’s Due Process Clause, requires the 1 Dep’t of Soc. Servs., 489 U.S. 189, 198-99 (1989). To establish an Eighth Amendment claim on a 2 condition of confinement, such as medical care, a Plaintiff must show: (1) an objectively, 3 sufficiently serious, deprivation, and (2) the official was, subjectively, deliberately indifferent to 4 the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). These two 5 requirements are known as the objective and subjective prongs of an Eighth Amendment 6 deliberate indifference claim. Willhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Hallett 7 v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). 8 To satisfy the objective prong, there must be a “serious” medical need. Estelle v. Gamble, 9 429 U.S. 87, 104 (1976). A medical need is serious if failure to treat it will result in “significant 10 injury or the wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 11 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by 12 WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). “[T]he conditions 13 presenting the risk must be ‘sure or very likely to cause ... needless suffering,’ and give rise to 14 ‘sufficiently imminent dangers.’” Baze v. Rees, 553 U.S. 35, 50 (2008) (Roberts, C.J., plurality 15 opinion) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). 16 As to the subjective prong, there must be deliberate indifference. Deliberate indifference 17 is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of 18 due care for the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (1994) (quoting Whitley 19 v. Albers, 475 U.S. 312, 319 (1986)); see Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) 20 (“Deliberate indifference is a high legal standard”). Deliberate indifference is shown when a 21 prison official knows that an inmate faces a substantial risk of serious harm and disregards that 22 risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 847; see also Gibson 23 v. Cnty. of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). 24 The defendant must not only “be aware of facts from which the inference could be drawn 25 that a substantial risk of serious harm exists,” but he “must also draw the inference.” Farmer, 26 511 U.S. at 837. “If a [prison official] should have been aware of the risk, but was not, then the 27 [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 1 mental attitude actually was.” Farmer, 511 U.S. at 839. See Disability Rights Montana, Inc. v. 2 Batista, 930 F.3d 1090, 1101 (9th Cir. 2019) (“The second prong is met upon showing of 3 deliberate indifference, which, as Farmer makes clear, is shown adequately when a prison official 4 is aware of the facts from which an inference could be drawn about the outstanding risk, and the 5 facts permit us to infer that the prison official in fact drew that inference, but then consciously 6 avoided taking appropriate action.”). Of course, whether a defendant possessed subjective 7 knowledge is a factual question that is “subject to demonstration in the usual ways, including 8 inference from circumstantial evidence.” Farmer, 511 U.S. at 842. 9 The Ninth Circuit holds that “[a] heightened suicide risk or an attempted suicide is a 10 serious medical need.” Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), vacated, 563 11 U.S. 915 (2011), opinion reinstated in relevant part, 658 F.3d 89 (9th Cir. 2011). Accord 12 Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1018 (9th Cir. 2010) (citing Conn, 591 F.3d at 13 1095), overruled on other grounds by Castro v. Cnty. of LA., 833 F.3d 1060 (9th Cir. 2016) (en 14 banc). Where the alleged deliberate indifference involves an inmate’s death by suicide, the Ninth 15 Circuit has articulated the subjective test as follows: “To proceed to trial, [plaintiffs] must adduce 16 evidence raising a triable issue that [defendant knew decedent] was ‘in substantial danger’ of 17 killing himself yet deliberately ignored such risk.” See id. at 1019 (quoting Clouthier v. Cnty. of 18 Contra Costa, 591 F.3d 1232, 1248 (9th Cir.2010)) (emphasis added). See also id. (“We cannot 19 agree, however, that the evidence supports the inference that [defendant knew decedent] ‘was at 20 acute risk of harm’ at the time he killed himself”) (quoting Conn, 591 F.3d at 1097) (emphasis 21 added). 22 2. Analysis 23 Here, Defendant does not dispute that Collier had serious medical needs relating to mental 24 health conditions while incarcerated. (Doc. 57-1 p. 6) (“Defendants do not dispute the objective 25 component—that Adam Collier’s risk of harming himself in his cell was sufficiently serious.”). 26 Thus, the issue presented by Defendants’ motion for summary judgment is whether Defendants 27 were subjectively aware that Collier faced a substantial risk of serious harm and disregarded that 1 To establish that disputed issues of material fact exist sufficient to defeat summary 2 judgment relating to Defendants’ deliberate indifference, Plaintiff asserts that as floor officers at 3 the EOP facility, Defendants should have known that Collier was at heightened risk of suicide. 4 (Doc. 59 p. 17). Furthermore, Plaintiff argues that given his history of suicide, Collier should 5 have been monitored more frequently and prioritized to a higher level of care. (Id. at 13). In light 6 of his prior self-harm using nail clippers as an inmate at KVSP, less than five months prior to his 7 death, Plaintiff also asserts Collier should never have been allowed to possess nail clippers. (Id. 8 at 12). Plaintiff also points to Collier’s mental health safety plan, which provided that “keeping 9 sharp objects away helps keep him safe.” Id. Plaintiff further argues that Collier should never 10 has been housed in a cell by himself, based on his requests and recommendations. Id. (citing 11 Kantorová Decl. ⁋ 5). 12 None of these arguments – individually or collectively – establish any triable issue of 13 material fact as to whether Defendants actually were “aware of facts from which the inference 14 could be drawn that a substantial risk of serious harm exists,” or that they “also dr[e]w the 15 inference.” Farmer, 511 U.S. at 837. To be sure, the only facts and argument advanced by 16 Plaintiff that Defendants knew of Collier’s risk of suicide was that they were floor officers at the 17 EOP facility and, thus, should have known Collier was at heightened risk of suicide. 18 It is undisputed both that inmates enrolled in the EOP receive a higher level of care from 19 correctional officers and that correctional officers assigned to Facility C received training on 20 suicide prevention, including how to identify telltale signs of suicidal ideation. (Doc. 59-4 p. 33). 21 However, that alone is not enough to demonstrate either that Defendants knew Collier was “in 22 substantial danger of killing himself” (Simmons, 609 F.3d at 1018-19) or that any such risk was 23 “obvious.” Farmer, 511 U.S. at 843 n.8. 24 The Ninth Circuit has dismissed on summary judgment similar deliberate indifference 25 claims where the defendants had more notice of the decedent’s risk factors than Defendants 26 possessed here. For instance, in Simmons, the defendant was aware of the decedent-inmate’s risk 27 factors and was involved in decedent previously being placed on suicide watch. Notwithstanding 1 after a failed suicide attempt, further counseling, and unremarkable behavior in the following 2 month undermined a showing that defendant possessed subjective knowledge that the decedent 3 was at acute and substantial risk of suicide. Simmons, 609 F.3d at 1018. 4 Here, Plaintiff adduces no evidence reflecting or tending to suggest that Defendants knew 5 Collier was at substantial and acute risk of suicide. Indeed, Plaintiff has not refuted Defendant 6 Martinez’s sworn assertions that he: (1) was not aware that Collier previously attempted suicide, 7 (2) was not aware that Collier ever was prohibited from possessing nail clippers, (3) was not 8 aware that Collier ever possessed nail clippers, or (4) either had access to or ever reviewed 9 Collier’s medical or mental health records to discover anything concerning his mental health 10 condition. (Martinez Decl. ⁋⁋ 8-12). 11 On this record, because Plaintiff presents no disputed issues of material fact as to whether 12 Defendants either were aware that Collier presented any substantial and acute risk of suicide, or 13 inferred Collier presented such a risk, or whether any such risk was obvious, the undersigned will 14 recommend that Defendants’ motion be granted as to Plaintiff’s Eight Amendment claims. 15 C. Fourteenth Amendment Due Process (Claim Four) 16 1. Legal Standard 17 Parents and children may assert a Fourteenth Amendment substantive due process claim if 18 they are deprived of the companionship of their child or parent through official conduct. Lemire 19 v. Cal. Dep’t. of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013). However, only official 20 conduct that “shocks the conscience” is cognizable as a substantive due process violation. Id. 21 (quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). 22 Deliberate indifference sufficient to sustain an Eighth Amendment claim generally shocks 23 the conscience “so as long as the prison official had time to deliberate before acting or failing to 24 act in a deliberately indifferent manner.” Id. (citing Tennison v. City and Cnty. of San Francisco, 25 570 F.3d 1078, 1089 (9th Cir.2009) & Porter, 546 F.3d 1131 at 1138). In an Eighth Amendment 26 prisoner-treatment case where a defendant-officer had ample time to correct his obviously 27 wrongful conduct, the Ninth Circuit generally applies the deliberate indifference standard to 1 893 (9th Cir. 2022). A plaintiff also may satisfy the “shocks the conscience” standard by 2 showing that a state official “acted with the purpose to harm.” Porter, 546 F.3d at 1137. 3 2. Analysis 4 Here, the undersigned has found that Plaintiff cannot establish Defendants demonstrated 5 deliberate indifference sufficient to proceed on claims under the Eighth Amendment. Further, 6 Plaintiff has not alleged and does not argue in opposition to Defendants’ motion for summary 7 judgment that either Defendant acted with the purpose to harm Collier. (Doc. 59 pp. 24-25). 8 Accordingly, because Plaintiff’s substantive due process claim under the Fourteenth Amendment 9 is inextricably tied to the same allegations that form the basis of her Eighth Amendment claims, 10 the undersigned will recommend that Defendants’ motion be granted as to Plaintiff’s Fourteenth 11 Amendment claim. See, e.g., Toguchi, 391 F.3d at 1060 (“for the same reasons that the Toguchis’ 12 deliberate indifference claim fails, their due process claim must also fail.”). 13 D. California Bane Act (Claim Five) 14 1. Legal Standard 15 California’s Bane Act, Cal. Civ. Code § 52.1, provides a right of action to plaintiffs for 16 damages “against any person, whether acting under the color of law or not, who interferes with or 17 attempts to interfere ‘by threats, intimidation, or coercion with the exercise or enjoyment’ of their 18 civil rights under the laws of the United States or California.’” Martinez v. Cnty. of Sonoma, No. 19 15-cv-01953-JST, 2015 WL 5354071, at * 9 (N.D. Cal. Sept. 14, 2015) (quoting M.H. v. Cnty. of 20 Alameda, 90 F. Supp.3d 889, 896 (N.D. Cal. 2013)). 21 To prevail on a Bane Act Claim, a plaintiff must allege and show that the defendant 22 intentionally interfered with another’s civil rights via threats, intimidation, or coercion. Reese v. 23 Cnty. of Sacramento, 888 F.3d 1020, 1044 (9th Cir. 2018). “Nothing in the text of the statute 24 requires that the offending ‘threat, intimidation or coercion’ be ‘independent’ from the 25 constitutional violation alleged.” Cornell v. City & Cnty. of San Francisco, 17 Cal. App.5th 766, 26 800 (2017). In addition, “a reckless disregard for a person’s” constitutional rights is evidence of a 27 specific intent to deprive that person’s rights. Reese, 888 F.3d at 1045 (citation and quotation 1 “California’s Bane Act requires proof of an underlying constitutional violation.” 2 Williamson v. City of Nat’l City, 23 F.4th 1146, 1155 (9th Cir. 2022) (reversing a district court’s 3 denial of summary judgment because there was no proof of underlying constitutional violation); 4 Barela v. Cnty. of Orange, No. 8:21-cv-00799-JVS (DFMx), 2022 WL 17037430, at *9 (C.D. 5 Cal. Aug 4, 2022) (granting motion for summary judgment on Bane Act claim after finding 6 summary judgment appropriate for underlying First, Fourth, and Fourteenth Amendment claims); 7 Mkrtchyan v. Sacramento Cnty., No. 2:17-cv-02366-DAD-KJN, 2023 WL 8698524, at *21 (E.D. 8 Cal. Dec. 15, 2023) (same). 9 2. Analysis 10 As Defendants are entitled to summary judgment on all of Plaintiff’s underlying 11 constitutional claims, Plaintiff’s Bane Act claim also fails. Accordingly, the undersigned will 12 recommend that Defendants’ motion be granted as to Plaintiff’s Bane Act claim. See Williamson, 13 23 F.4th at 1155; see also Barela, 2022 WL 17037430, at *9 (“Where, like here, a plaintiff brings 14 a Bane Act claim and a § 1983 claim based on the same alleged constitutional violations, the 15 elements of the predicate constitutional violations are the same under both claims.”). 16 E. Wrongful Death and Survivor Action (Claim Six) 17 1. Legal Standard 18 The elements of a California wrongful death claim are: (1) a wrongful act or neglect on 19 the part of one or more persons that (2) causes (3) the death of person. Estate of Prasad ex rel. 20 Prasad v. Cnty. of Sutter, 958 F. Supp.2d at 1101, 1118 (E.D. Cal. 2013); Cal. Civ. Proc. Code § 21 377.60. “Although it is a statutorily-created action, a wrongful death suit predicated on 22 negligence must still contain the elements of actionable negligence.” Deloney v. Cnty. of Fresno, 23 No. 1:17-cv-01336-LJO-EPG, 2019 WL 1875588, at *9 (E.D. Cal. Apr. 26, 2019). “A 24 negligence claim requires proof that (1) defendant had a duty to use care, (2) defendant breached 25 that duty, and (3) the breach of duty was the proximate or legal cause of the resulting injury.” Id. 26 (citing Hayes v. Cnty. of San Diego, 57 Cal.4th 622, 629 (2013)). See Wright v. Yanos, No. 2:15- 27 cv-02671-TLN-CKD, 2017 WL 6040335, at *6 (E.D. Cal. Dec. 6, 2017) (“[T]he plaintiffs can 1 the want of such care as a person of ordinary prudence would exercise under the circumstances of 2 the case, [and] may consist in heedlessly doing an improper thing or heedlessly refraining from 3 doing a proper thing.”) (quotation and citation omitted). 4 “A negligent act ‘is not the proximate cause of [a plaintiff’s] alleged injuries if another 5 cause intervenes and supersedes [defendant’s] liability for the subsequent events.’” Campos v. 6 Cnty. of Kern, No. 1:14-cv-01099-DAD-JLT, 2017 WL 915294, at *14 (E.D. Cal. Mar. 7, 2017) 7 (quoting Conn, 591 F.3d at 1101). “A cause is intervening and superseding if it is 8 unforeseeable.” Id. (citation omitted). “As a general rule, acts of suicide have been found to be 9 unforeseeable events that preclude a finding of causation.” Id. However, courts have recognized 10 an exception to this general rule in cases where a government official’s actions or inaction were 11 “the moving force” behind a sequence of events that ultimately lead to a foreseeable harm being 12 suffered, including suicide. Id. (citing cases). 13 In Campos, an inmate who harmed himself while in-custody was moved to a suicide- 14 watch cell that was not monitored by a camera. Id. at *1. The defendant correctional officers 15 discovered the inmate in his cell with a cord noose fastened around his neck and tied to the cell 16 bars. The noose was fashioned from a section of the electrical cord of a fan located in the 17 hallway outside of decedent’s cell. Id. The court denied defendants’ motion for summary 18 judgment on a wrongful death claim because the defendants were aware that an electric fan was 19 placed outside the suicide watch cell in question, providing circumstantial evidence of 20 negligence. The court reasoned that “the defendants’ leaving of an electric fan with a duct-taped 21 cord near a suicide cell, at least arguably within reach of a suicidal detainee, could be considered 22 by a rational trier of fact to be the ‘moving force’ behind decedent's ultimate suicide.” Id. at *15. 23 In contrast, the court in Weishaar v. Cnty. of Napa granted summary judgment to the 24 defendant correctional officer on a successor in interest’s wrongful death cause of action for the 25 in-custody death by suicide of her husband. No. 14-cv-01352-LB, 2016 WL 7242122 (N.D. Cal. 26 Dec. 15, 2016). The inmate’s suicide happened on the defendant’s watch approximately 25 27 minutes after his last security check. Id. at *8. Although the defendant had no knowledge of 1 down” in the hours leading up to the suicide, received reports from the decedent that he was bi- 2 polar, in need of medication and about to “lose it,” and cried. Id. at *4, *8. Based on this record, 3 and because the facility’s medical and housing staff were responsible for assessing and addressing 4 the decedent’s needs (not the correctional officer), the court found there were no triable issues of 5 fact as to the defendant’s responsibility for the death by suicide and granted summary judgment. 6 2. Analysis 7 Neither party reasonably challenges that Defendants (as correctional officers) owed 8 Collier (an inmate where Defendants served) a duty of care. See Cotta v. Cnty. of Kings, 686 Fed. 9 Appx. 467, 469 (9th Cir. 2017) (“In California, prison officials owe detainees a duty to protect 10 them from foreseeable harm.”) (citing Giraldo v. Cal. Dep’t of Corr. & Rehab., 168 Cal. App.4th 11 231 (2008)). Thus, the undersigned considers whether any conceivable breach of duty by 12 Defendants caused Collier’s death. 13 (i) Possession of Nail Clippers 14 The undersigned found above in connection with her constitutional claims that Plaintiff 15 has presented no triable issue of material fact that Defendants had any knowledge Collier 16 presented a heightened risk of suicide. In light of this, it cannot be said that Defendants’ alleged 17 failure to prevent Collier from possessing nail clippers was the “moving force” behind Collier’s 18 eventual death by suicide. See Campos, 2017 WL 915294, at *14. Whereas in Campos, the 19 defendant correctional officers were aware the decedent was suicidal but nevertheless placed him 20 in a cell where he could access material to construct a noose to facilitate the suicide, here, there 21 was no foreseeable reason for Defendants to prevent Collier from accessing nail clippers. Indeed, 22 Plaintiffs have not persuasively refuted Defendants’ showing there were no medical or mental 23 health care staff orders prohibiting Collier from possessing sharp objects, including nail clippers, 24 during the month before his death, and that such nail clippers could be purchased by inmates at 25 the canteen. (See Martinez Decl. ⁋ 13; Hancock Decl. ⁋ 3). 26 (ii) Security Checks 27 The parties forcefully dispute whether Defendant Hodges checked on and communicated 1 supplemental report but which was not mentioned in his original incident report. (Doc. 57-4 p. 2 50).6 In particular, Plaintiff relies on the expert report and a supplemental declaration filed in 3 opposition to Defendants’ motion for summary judgment by Dr. James Lee. In the supplemental 4 declaration (Doc. 59-7), Dr. Lee opines that because it would have taken Collier more than four 5 hours to die by exsanguination and given that Collier’s time of death at 3:32 p.m., it is not 6 possible Hodges saw and spoke with Collier at 2:00 p.m. as Collier would not have been able to 7 stand at that time. Dr. Lee further opines that Collier would not have had enough dexterity to 8 affix the bedsheet found in his cell at the time of his death after his conversation with Hodges due 9 to lack of dexterity from exsanguination. 10 Defendants implore the Court to disregard Dr. Lee’s supplemental declaration because it 11 presents opinions not included in his disclosed Rule 26(a)(2)(B) expert report.7 (Doc. 60 p. 4). 12 Plaintiff counters that the opinions, in fact, “fall within the scope of his expert report and his 13 skills, experience, and educational background.” (Doc. 68 p. 2). Plaintiff further asserts that 14 Defendants were aware of Dr. Lee’s views regarding these challenged opinions because he 15 offered deposition testimony during expert discovery related to those opinions. (Id. pp. 2-3). 16 Finally, Plaintiff argues exclusion is not warranted for any discovery violation under Rule 37 17 because any late disclosure either was harmless or substantially justified. (Id. p. 3). 18 Rule 26(a)(2) requires disclosure of an expert report for each expert that may offer 19 testimony at trial that includes, among other things, “a complete statement of all opinions the 20 witness will express and the basis and reasons for them” as well as the facts considering in 21 6 The Court rejects Plaintiff’s argument that Defendant Hodges’ supplemental report is 22 inadmissible and should not be considered by the Court on summary judgment; the report satisfies the public records and business records exceptions to hearsay. Fed. R. Evid 803(6) and 23 (8); Greer v. Cnty. of San Diego, No. 19cv378-JO-DEB, 2023 WL 2316203, at *7 (S.D. Cal. Mar. 1, 2023) (finding investigative records following an inmate suicide satisfied the public record 24 exception); Anglin v. Pratti, 643 F. Supp.3d 1077, 1085-86 (E.D. Cal. 2022) (finding written 25 statements by floor officers pertaining to inmate complaint admissible under the public records exception). 26 7 In response to Defendants’ challenge that the supplemental expert declaration should be 27 disregarded, at the Court’s direction, Plaintiff filed supplemental briefing arguing that the supplemental declaration was within the scope of his timely disclosed expert report. See Docs. 1 forming those opinions. Fed. R. Civ. P. 26(a)(2)(B). 2 Additionally, “Rule 26(e) creates a ‘duty to supplement,’ not a right. Nor does Rule 26(e) 3 create a loophole through which a party who submits partial expert disclosures, or who wishes to 4 revise her disclosures in light of her opponent’s challenges to the analysis and conclusions 5 therein, can add them to her advantage after the court’s deadline for doing so has passed.” Luke v. 6 Family Care and Urgent Medical Clinics, 323 Fed. Appx. 496, 500 (9th Cir. 2009) (affirming 7 exclusion of supplemental expert report submitted in opposition to motion for summary 8 judgment) (unpublished). A supplemental expert report that merely seeks to “strengthen” or 9 “deepen” opinions expressed in the original expert report does not fall within the permissible 10 scope of supplemental expert disclosures under Rule 26(e). City of Seattle v. Monsanto 11 Company, No. C16-107-RAJ-MLP, 2023 WL 7046271, at *8-9 (W.D. Wash. Oct. 26, 2023) 12 (excluding untimely supplemental expert report); Bell v. Boeing Co., No. 20-cv-01716-LK, 2022 13 WL 1206728, at *3-5 (W.D. Wash. Apr. 22, 2022) (same); Jarrow Formulas, Inc. v. Now Health 14 Group, No. CV 10-8301 PSG (JCx), 2012 WL 3186576, at *15 (C.D. Cal. Aug. 2, 2012) (same). 15 The undersigned has compared the challenged opinions in Dr. Lee’s supplemental 16 declaration with the opinions disclosed in his expert report and finds it likely that Plaintiff’s 17 supplemental expert declaration should be excluded given Plaintiff’s failure to disclose it 18 consistent with Rule 26(a)(2)(B) prior to the close of expert discovery. The failure to include in 19 Dr. Lee’s timely disclosed Rule 26(a) expert report the opinions newly disclosed in opposition to 20 Defendants’ motion for summary judgment does not appear either justified or harmless given that 21 the scheduled trial date is rapidly approaching and, with expert discovery closed, Defendants have 22 no opportunity to depose Dr. Lee. See Fed. R. Civ. P. 37(c)(1). 23 Nevertheless, whether Plaintiff’s supplemental declaration of Dr. Lee is admissible is an 24 issue that need not be dispositively resolved for the purposes of Defendants’ motion for summary 25 judgment. Instead, the undersigned finds even if Defendant Hodges first encountered Collier 26 approximately 90 minutes after his shift began (e.g., at 3:32 p.m.), Plaintiff still has failed to 27 identify any triable issues of material fact as to whether Defendants’ actions were the proximate 1 particular, no conduct alleged by Defendants, including any delay during the first 90 minutes of 2 their shift to conduct a security check of Collier, was “the moving force” behind Collier’s death 3 by suicide. Cf. Campos, 2017 WL 915294, at *14 (disputed issue of fact as to a correctional 4 officer’s placement of a suicidal inmate where he could access material to fashion a noose) with 5 Weishaar, 2016 WL 7242122, at *4, *8 (granting summary judgment to correctional officer 6 where the facility’s medical and housing staff were responsible for assessing and addressing the 7 decedent’s suicide needs). Accord Germaine-McIver v. Cnty. of Orange, No. SACV 16-01201- 8 CJC (GJSx), 2018 WL 6258896, at *17 (C. D. Cal. Oct. 31, 2018) (granting summary judgment 9 on wrongful death claim where defendants had no advance knowledge of the inmate’s suicidal 10 intentions).8 11 Accordingly, the undersigned will recommend that Defendants’ motion be granted as to 12 Plaintiff’s wrongful death and survival claim. 13 FINDINGS AND RECOMMENDATION 14 Based on the foregoing, IT IS HEREBY RECOMMENDED: 15 1. Defendants’ motion for summary judgment (Doc. 57) be GRANTED. 16 2. The Clerk of Court be DIRECTED to close this case. 17 These Findings and Recommendations will be submitted to the United States District 18 Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 19 (14) days from the date of service of these Findings and Recommendations, any party may file 20 written objections with the Court. The document should be captioned, “Objections to Magistrate 21 Judge’s Findings and Recommendations.” A failure to file objections within the specified time 22 may result in waiver of that party’s rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 23 24 8 The undersigned separately notes that Defendants may be entitled to immunity from liability for wrongful death under Cal. Gov. Code § 845.6. See, e.g., Germaine-McIver, 2018 WL 25 6258896, at *16-17; Frary v. County of Marin, 81 F. Supp.3d 811, 842 (N.D. Cal. 2015). However, Defendants did not move for summary judgment on this ground, have not addressed 26 immunity under Cal. Gov. Code § 845.6, and it is not the Court’s province to manufacture arguments on behalf of the parties. E.g., Chandler v. Cal. Dep’t of Corr. & Rehab, No. 1:21-cv- 27 01657-JLT-HBK, 2022 WL 2818646, at *1 (E.D. Cal. July 19, 2022); California v. Johnson, No. 2:18-cv-01056-KJM-CKD, 2018 WL 4214650, at *4 (E.D. Cal. Sept. 5, 2018). 1 | (th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 | SO ORDERED. Dated: _ February 16, 2024 | hwnnAD R~ 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19