The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendants', County of Sacramento (the "County"), Brian Moore ("Moore"), Wayne Kitade ("Kitade"), Gregory Sokolov, M.D. ("Sokolov"), and Mark Sussman, LCSW (Sussman), motion for summary judgment or, in the alternative, for summary adjudication pursuant to Federal Rule of Civil Procedure 56.*fn1 Plaintiffs Elaine Servantez, as guardian ad litem for A.D.L. and A.G.L., and Lorraine Servantez oppose the motions.*fn2 For the reasons set forth herein,*fn3 defendants' motion for summary judgment is GRANTED.
This is a consolidated civil rights action brought pursuant to 42 U.S.C. § 1983 and alleging supplemental state claims arising out of the suicide of David Lopez ("Lopez"), an inmate at the Sacramento County Jail (the "Jail"), on April 7, 2005. Lopez had three children, plaintiffs A.D.L. and A.G.L. as well as Rachel Tolusa. Plaintiff Lorraine Servantez is Lopez's mother.
Defendant Lieutenant Kitade was assigned to the Jail from November 2004 through May 2005. (UF ¶ 205.) Defendant Deputy Moore has worked at the Jail since 2004. (Decl. of Brian Moore ("Moore Decl.") [Docket # 66], filed Apr. 29, 2009, ¶ 5.) Defendant Sokolov is an employee of the Regents of the University of California, and at all relevant times, was the Medical Director for the Jail Psychiatric Services ("JPS"). (UF ¶ 8; RUF ¶ 4.) Defendant Sussman is also an employee of the Regents of the University of California and a clinician within the JPS program. (RUF ¶¶ 3, 5.)
A. Policies at the Sacramento County Jail
In the spring of 2003, the reorganization of Jail Health Services resulted in the transfer of administrative responsibility for inmate health care to the Sacramento County Sheriff's Department. (UF ¶ 6.) During the period of Lopez's incarceration, Lou Blanas served as Sheriff of Sacramento County. (UF ¶ 1.) Beginning in May 2004, the day-to-day operations of the Jail were supervised by Lieutenant Stephen Bunce, Assistant Commander of the Jail. (UF ¶ 2.) During all relevant times, the County contracted with the Regents of the University of California to have U.C. Davis Medical Center provide mental health services for inmates housed at the Jail. (UF ¶ 7.)
The Jail was divided into separate housing units. (UF ¶ 9.) Generally, on floors three through eight, the floor was divided into two housing units, one on the east side and one on the west side. (UF ¶ 9.) Eight East is used to handle those newly assigned to the Jail during the classification period and those awaiting a more permanent housing assignment. (UF ¶ 9.) Eight West is used to house male disciplinary problems and others requiring maximum security precautions. (UF ¶ 9.) Housing units for general population prisoners were assigned two deputies who work twelve hour shifts. (UF ¶ 10.)
The second floor of the Jail houses a medical facility for those who require more direct access to nursing care, an inpatient psychiatric unit, and a subacute care housing unit. (UF ¶ 12.) The psychiatric unit consists of single cells with windowed doors that face a hallway fronted by a nurses' station. (UF ¶ 14.) The psychiatric unit is staffed 24 hours a day with licensed health care providers. (UF ¶ 11.) An Outpatient Psychiatric Unit is located on 3 East, which is used to house inmates with mental health issues that do not rise to the level that requires inpatient care, but require an intermediate level of mental health services. (UF ¶ 16.)
Housing assignments at the Jail are based on various factors, including physical and mental disabilities, behavioral issues, security risks, and general safety considerations. (UF ¶ 79.) The General Population housing is designated for inmates that do not require classification into a special category of housing, such as special handling inmates, high security housing, disciplinary housing, special housing, and inmate workers. (UF ¶ 80.) A Total-Separation ("T-Sep") inmate is someone who is segregated from other inmates generally for his safety or the safety of other inmates or staff; this classification is not used for punishment. (UF ¶ 84.)*fn5 This classification requires placing the inmate in a single cell to prevent contact with other inmates. T-Sep inmates must be supervised by custody personnel for all visits and out-of-cell movements. (Frenette Decl. ¶ 12.)
Housing unit checks are required by Jail policy. The checks are required to be performed every hour during a shift. The policy requires direct visual observation of each inmate in the housing unit. (UF ¶ 85.) After 2002, the protocol for monitoring inmates on the acute psychiatric unit was revised from one hour to 30 minute checks. (UF ¶ 86.) These observations may be increased to constant or 15 minute intervals depending on the degree of risk. (UF ¶¶ 88-89.) Cell checks in "special housing" remained at one hour intervals. (See UF ¶ 87.)
The Jail is staffed with registered nurses who conduct a face-to-face assessment and screening of those brought to the Jail to determine whether or not the inmate is "fit for incarceration." (UF ¶ 17, 46.) The nurses who conduct the screening ask questions regarding the health history of the inmate, and the inmate is required to complete a self health history form. (UF ¶¶ 47-48.) If the nurse determines that the inmate has been receiving mental health treatment or psychiatric medications, a referral is made to JPS for follow-up, and the screening form is faxed directly from the screening area. (UF ¶ 51.) If the nurse determines that the inmate is currently suicidal, the inmate is referred directly to JPS for immediate evaluation. (UF ¶ 52.)
Housing officers are also trained and required by policy to immediately take the necessary steps to safeguard any inmate who the officer believes is in immediate danger of harming himself. In that circumstance, the housing officer is required to remove the inmate from his cell and either handcuff the inmate and place the inmate in a cell that permits direct observation or otherwise secure the inmate so that he may be observed while help is summoned. Housing officers are trained to and required by policy to make an immediate referral to JPS in the event that the officer becomes aware of an imminent threat of self-harm to the inmate. (UF ¶ 18.)*fn6 Jail staff is required to immediately advise JPS of suicidal behavior. (UF ¶ 72.)
In 2002, there was an increased number of inmate suicides at the Jail. (UF ¶ 19.) In response, the Sheriff at the time impaneled a Suicide Prevention Task Force (the "Task Force"), a multi-disciplinary committee consisting of representatives from custody, JPS, Correctional Health Services, and members of the community. (UF ¶¶ 20-21.) Between March and December 2002, the Task Force met on multiple occasions to study virtually every aspect of the Jail and Jail operations to determine what improvements might be made to lessen the risk of inmate suicide. (UF ¶ 24.) Lindsay Hayes ("Hayes"), a nationally renowned expert in the field of suicide prevention in jails, was asked to assess the practices at the time and to make recommendations regarding improvement in suicide prevention policies and procedures. (UF ¶ 25.) Hayes issued a comprehensive report of his findings. (UF ¶ 26.) The Task Force created a corrective action plan, implementing some of the recommendations in the report. (UF ¶ 28.) Although Hayes recommended increased cell checks in "special housing" at 30 minute intervals, the Task Force determined that this change would require significant additional staff that could not be accommodated within the budget. (UF ¶ 87.)
In response to the corrective action plan, suicide prevention training was increased. (UF ¶ 31.) Within the basic academy training for the Sacramento County Sheriff's Department, all new deputies receive an 8-hour block training on mental health and suicide prevention with a 2-hour block in the Jail Operations portion of the academy training. (UF ¶ 33.) Further, during the Correctional Officers Basic Training Academy Course, deputies receive a 2-hour block on suicide prevention, which include a review of the Sheriff's policies on suicide prevention as well as an informational booklet. (UF ¶ 34.) Once a deputy is assigned to work in the Jail, the deputy is assigned a jail training officer, who works side by side with the trainee for eight to twelve weeks. (UF ¶ 35.) JPS provides in-service training sessions for custody, medical and psychiatric staff, including a detailed discussion of suicide risks and typical signs and manifestations. (UF ¶ 38.) All staff are provided with ongoing updates on current suicide risks and trends during briefings and at staff meetings four times a year. (UF ¶ 39.) Starting in 2003, the medical and psychiatric departments began to participate in Advanced Officer Training, which includes training in suicide prevention, mental health issues, and substance abuse withdrawal specific to a custody setting. (UF ¶ 40.) A "Suicide Risk" information pocket card for officers and corrections health staff was developed by JPS and issued to all personnel. (UF ¶ 44.)
JPS policy requires follow up on all Acute Psychiatric Unit discharges. At that point, staff determines the level of continuing care required. Inmates discharged from the inpatient unit receive follow-up care within 7 days of discharge and ongoing follow-up based on the patient's needs. Patients on medication are seen regularly by the psychiatrist for assessment and on-going care. Clinicians may also set follow up schedules based on the particular patient's needs. (UF ¶ 91).*fn7
B. Facts Surrounding Lopez's Treatment
Lopez was originally received at the Sacramento County Jail on October 8, 2003, following his arrest for charges of "endangering life or health of child." (UF ¶ 133; Decl. of Gregory Sokolov, M.D. ("Sokolov Decl.") [Docket # 63-7], filed Apr. 28, 2009, ¶ 4.) The arrest was based on alleged physical abuse of his six year old daughter. (UF ¶ 134.)
On October 9, 2003, Lopez was referred by Medical Intake to Jail Psychiatric Services Outpatient Department Triage Contact. (Ex. X to Sokolov Decl. at 66.) Lopez answered "no" to all questions related to suicidal behavior and mental illness; however, it was noted that he was referred based upon "psych. illness ﺊ history" and that he had been diagnosed with "PTSD/anxiety D.O." (UF ¶ 135; Ex. X to Sokolov Decl. at 66.) Lopez was referred to the JPS outpatient department due to his history of psychiatric illness. (UF ¶ 136.) Following a consult with JPS staff, Lopez was cleared for admission and placed in Housing Unit 8E. (UF ¶¶ 137-38.)
On October 16, 2003, after attending a custody hearing in the Family Law Court regarding his children, Lopez remarked, "Why don't you just shoot me?" (RUF ¶ 24; UF ¶ 139.) Custody immediately referred him to JPS, and a JPS clinician saw him a short time thereafter. (RUF ¶ 24.) The clinician felt that he had an increased level of potential for suicide and referred him for a further evaluation (a "5150 evaluation"). (RUF ¶ 24.) After waiting for a bed to become available, on October 17, 2003, Lopez was taken to the JPS inpatient unit ("2P") where he was assessed by a psychiatrist, placed on a 5150 hold, given a past prescription for Remeron, and checked on every 15 minutes. (RUF ¶ 25; UF ¶ 143.) The involuntary hold was reportedly based upon Lopez's vagueness about being suicidal and statements he made that he had nothing to live for. (Ex. X to Sokolov Decl. at 105.) Lopez was also required to wear a safety suit. (RUF ¶ 25.) The following day, he was able to wear his own clothes, and after two days, he was released back into the Jail's general population at his own request and after Dr. Seaman of JPS observed that he continued not to display any suicidal ideation or self-injurious behaviors.*fn8 (RUF ¶ 25; Sokolov Decl. ¶ 6.) Lopez's diagnosis at the time was an adjustment disorder. (Sokolov Decl. ¶ 6; UF ¶ 145.)
One week following his discharge, Lopez was seen by Nancy Harnett, MSW; Lopez indicated that he was "hanging in there," felt fine, and did not have any suicidal or homicidal ideation. (Sokolov Decl. ¶ 7.) Two days later he was seen by JPS psychiatrist Dr. Cameron Quanbeck; Lopez stated that "he was never really suicidal" when he was sent to 2P and that he was not currently suicidal because he was working to see his kids. (Ex. X. to Sokolov Decl. at 59.) Lopez also requested that his Remeron dosage be increased, and it was. (Sokolov Decl. ¶ 7.) A month later, Lopez was again seen by Dr. Quanbeck, who noted that Lopez was still having problems with irritability, mood swings, and frustration. (Sokolov Decl. ¶ 8.) Lopez requested and received Paxil, an anti-anxiety agent. (Sokolov Decl. ¶ 8.) He also denied any suicidal ideation. (Sokolov Decl. ¶ 8.) Plaintiff was unavailable for his next appointment on December 23, 2003 due to a court appearance. (Sokolov Decl. ¶ 9.)
On December 29, 2003, Lopez submitted a request for psychiatric services (a "kite"), which provided:
Getting violent urges. Frustrated. I need reading material every week. I need to keep my mind busy reading. If I don't stay busy, I hear voices and I tent to get violent urges while being frustrated upset. Please give me a book every week to read. Our pod worker doesn't have any books. Every one else is greedy. I ask for books but no luck even getting more mad.
(Pls.' Ex. 17 at CTY_00178.) Lopez was referred to JPS for an assessment, which was performed that day. (RUF ¶ 16.) The assessment provided that Lopez was frustrated and stressed by being in jail and because of family issues, but that he was calm and responsive. (Ex. X to Sokolov Decl. at 58.) The assessment also provided that he denied suicidal or homicidal ideation and that he was focused on getting reading materials to help him cope. (Ex. X to Sokolov Decl. at 58.)
Sokolov saw Lopez six days later on January 5, 2004. (Sokolov Decl. ¶ 10.) Lopez stated that he was doing all right and that his medications were helping, but that he wanted his Paxil dose increased; it was. (Sokolov Decl. ¶ 10.) Lopez denied any suicidal or homicidal ideation. (Sokolov Decl. ¶ 10.) In a follow-up appointment one month later, on February 3 2004, Lopez indicated that his medications were helping, but he was still getting angry for no reason. (Sokolov Decl. ¶ 11.) However, he denied any suicidal or homicidal ideation. (Sokolov Decl. ¶ 11.)
On February 4, 2004, custody referred Lopez to JPS after he purportedly had not received his medications and was threatening to harm other people. The JPS clinician noted that Lopez had received his Remeron, but claimed to have not received his Paxil. The clinician obtained Lopz's agreement to notify JPS if he did not receive his evening dose of Paxil. She found no evidence of suicidal or homicidal ideation. (Sokolov Decl. ¶ 12.)
Over the months between March and September 2004, Lopez met with JPS psychiatrists at least three times; he reported that he was doing pretty well, but requested changes in his dosage of Remeron. (Sokolov Decl. ¶ 13; Ex. X to Sokolov Decl. at 54-55.) He consistently denied suicidal ideations. (Sokolov Decl. ¶ 13.)
On October 1, 2004, Lopez submitted a kite to JPS indicating that he wanted stronger medications. Specifically, the kite provided:
Currently on Remeron & Paxil. I need something stronger to stabilize my emotions. I have ultimate highs & ultimate lows in spurts thats uncontrollable, resembling something as being bi-polar. I need more stronger medication to level me balanced. I say & do things I don't mean. I get very mad for little things. I get very depressed for everything. I'm scared of saying things I don't mean.
(Pls.' Ex. 17 at CTY_00176). Lopez was scheduled for clinic on the first available non-emergent date, October 27, 2004. (Sokolov Decl. ¶ 13.) However, on October 14, 2004, Lopez wrote a second kite complaining about the delay:
Believe I'm bi-polar. I always have extreme his, then extreme lows, can never be stable. I get very upset, angry, say things to people I love I don't mean, push people away that I need, my emotions are unstable, uncontrollable. I need more medication, stronger. This is the second kite, what do I gotta do to be seen, jump off the top tier? Somebody, please! Been a month already.
(Pls.' Ex. 17 at CTY_00176; see RUF ¶ 28.)
When the kite arrived, Lopez was scheduled to be seen by a clinician as soon as possible, which was October 20, 2004. The clinician's evaluation was that Lopez was unwilling to exercise control over his behavior toward his family and that he was impulsive. Lopez again denied any suicidal ideation. (Sokolov Decl. ¶ 13.) On October 27, 2004, Lopez met with Sokolov in the clinic. Lopez advised Sokolov of the same symptoms set forth in his kite, but denied any suicidal ideation. Sokolov prescribed him a mood stabilizer, Depakote, and scheduled him to return to the clinic in a month. (Sokolov Decl. ¶ 14; see RUF ¶ 28.)
Five days later, Lopez began indicating to the correctional health nurses that he was not going to take the Remeron, but wanted an increase in his doses of Depakote and Paxil. On November 4, 2004, Lopez wrote a kite to this effect. (Sokolov Dep. ¶ 15; Pls.' Ex. 17 at CTY_00175; see RUF 29.) As a result of the kite, Lopez's clinic appointment was moved up three weeks to November 12. He was also immediately interviewed by JPS clinician, Mark Hopkins, RASW. In the interview, he indicated that wanted to stop taking Remeron because it made him drowsy and requested another drug, Wellbutrin.*fn9 While Lopez stated that he felt some depression and had occasional difficulty with impulse control, he also felt he was generally improving. Hopkins found no suicidal or homicidal ideation. (Sokolov Decl. ¶ 15; see RUF ¶ 29.)
Sokolov met with Lopez on November 12, 2004. Sokolov ordered that the Remeron be discontinued and that the doses of both Depakote and Paxil be increased. Lopez denied any suicidal or homicidal ideation. (Sokolov Decl. ¶ 16.) Sokolov then met with Lopez on December 16, 2004. Lopez wanted his Paxil dosage increased; it was. Sokolov observed that Lopez manifested no signs of suicidal ideation, nor evidence of any type of psychosis. (Sokolov Decl. ¶ 17.)
Over the latter part of December 2004, Lopez submitted additional kites, seeking stronger medication; specifically, more Paxil. (Pls.' Ex. 17 at CTY_00174.) Lopez also voiced these same complaints to Sokolov at his next clinic visit on January 27, 2005. Because Lopez stated that the Paxil kept his depressive symptoms in check, Sokolov ordered that his Paxil dose be maintained and his Depakote dose be increased. Lopez denied any suicidal ideation, and Sokolov saw no signs of psychosis. (Sokolov Decl. ¶ 18.) Lopez missed his February office visit with Sokolov due to a court appearance. (Sokolov Decl. ¶ 19.)
Sokolov next saw Lopez on March 4, 2005. Lopez informed him that he was depressed and frustrated because he was not seeing his children. However, he indicated that the Depakote had helped a lot in controlling his mood and that he was sleeping better. Lopez again denied any suicidal ideation, and Sokolov did not observe signs or symptoms of such ideation or any psychosis. Sokolov increased Lopez's dosage and planned to follow up in three weeks. (Sokolov Decl. ¶ 19.)
However, five days later, on March 9, 2005, custody requested that Lopez be assessed by JPS for suicidal ideation. (RUF ¶ 30.) Specifically, the referral stated:
On trial -- facing life sentence. Making statements about being better off dead, etc. -- will be back from court this afternoon -- floor officer will notify. (Pls.' Ex. 17 at CTY_00173; see UF ¶ 151.) A JPS clinician met with Lopez on his return to the Jail. (UF ¶ 152.) She noted that Lopez's thought associations were tight and that he denied suicidal and homicidal ideation at that time. Further, he stated that he would hurt someone else before he would hurt himself. The clinician found that Lopez did not meet 5150 criteria. (Ex. X to Sokolov Decl. at 49; UF ¶ 153.)
On March 17, 2005, Tina Frenette, a classification officer at the Jail, had a telephone conversation with deputies working in the courtroom during Lopez's trial and reviewed information in the Jail Information Management System. (Frenette Decl. ¶ 4.)
Deputy Manning's report, provided, in relevant part:
Inmate Lopex had recently vandalized a tank and a hallway with a pencil. . . . I noticed today that Lopez had not received a writeup for this violation. Lopez has been housed in the two tank for the last three days due to his insubordination and total lack of respect for the courthouse rules. Lopez continues to raise his voice and challenge deputies authority and makes comments that things would be different if the handcuffs were off. . . . At 0920 hours, additional officers were called to assist the escort office in Dept 25 for an uncooperative inmate (Lopez) that was in a verbal argument with his counsel and the judge. Lopez also threw several paper items across the table toward the direction of the district attorney. It would be my request to have Lopez re-classified to TSep Status due to his vandalizing cells, insubordination, threats toward staff, and unruly behavior in court that represents a hazard to the judge, staff and the public. It should also be noted that in today's Sacramento Bee Metro Section an article describing the nature of his charges (torturing a child) was published. The other inmates have been able to identify him as the suspect and have been talking about the article.
(County Defs.' Ex. I [Docket # 66], filed Apr. 29, 2009, at CTY _00152-55.) Based upon Lopez's behavior, which indicated a lack of impulse control and an increased threat to staff, other inmates, and Lopez and the increased risk of danger to Lopez as a result of the publication of the newspaper article, Frenette changed Lopez's classification to T-Sep. (Frenette Decl. ¶¶ 15-19.) Frenette did not contact JPS. (RDF ¶ 22.)
On March 18, 2005, Deputy Pederson entered a report arising out of rule violations by Lopez. (Pls.' Ex. 17 at CTY_00156-60.) The report provides that Lopez admitted to drawing on the walls and to getting angry in court. (Pls.' Ex. 17 at CTY_00156-57.) Lopez also expressed anger at being placed in T-Sep. (Pls.' Ex. 17 at CTY_00158.) Deputy Pederson wrote that based upon Lopez's ongoing disruptive and insubordinate behavior, in light of the need for safety, and given the severity of the situation, Lopez would be belly chained and escorted by two officers when taken into court and that he should be assigned fifteen days full restriction. (Pls.' Ex. 17 at CTY_00160.) The report and the subsequent assignment was reviewed, approved, and implemented by defendant Kitade as the Watch Commander. (Pls.' Ex. 17 at CTY_00160.) Defendant Kitade also reviewed Lopez's appeal of the fifteen days restriction he received as a result of his conduct; he found the discipline was appropriate. (Pls.' Ex. 17 at CTY_00124.)
Due to the classification change to T-Sep, Lopez was relocated to Housing Unit 8E and placed in a single cell. (Decl. of Tina Frenette ("Frenette Decl.") [Docket # 66], filed Apr. 29, 2009, ¶ 20.)*fn10 For the first two weeks of his placement in TSep, as a result of the disciplinary restrictions placed upon him, Lopez's family was unable to visit him. (RDF ¶ 18.) Lopez remained in T-Sep until the time of his suicide. (RDF ¶ 15.)
On March 24, 2005, Lopez was scheduled to see Sokolov, but was unavailable due to a court appearance. Sokolov rescheduled him to be seen on March 30, 2005, increased his dosage of Depakote, and scheduled him to be seen for a "welfare check" by a JPS clinician in Lopez's housing unit after he returned from court that day. (RUF ¶ 31; UF ¶ 162; see Sokolov Decl ¶ 24.) The clinician noted:
Seen for welfare check. Mood is depressed and angry. Thought associations are tight. He continues to deny [suicidal ideation] state that he would hurt someone else before hurting himself. Feels that since the newspaper article came out (re: his case) custody has "a conspiracy going" which has resulted in his T-Sep status on 8E. . . . (Ex. X to Sokolov Decl. at 49.)
On March 30, 2005, Sokolov met with Lopez; Lopez stated that he was "hanging in there" and that if he had "to go the pen, I'll do my time like a soldier." Lopez also specifically denied suicidal ideation, stating "I wouldn't kill myself, I've got young daughters to live for." (Ex. X to Sokolov Decl. at 48.) Sokolov increased Lopez's dosage of Depakote and specifically instructed him to immediately notify JPS or custody if he experienced any increased anxiety or suicidal ideation during the remainder of his trial. (UF ¶ 165; Sokolov Decl. ¶ 22.)
On April 2, 2005, Lopez submitted a kite to JPS requesting THC pills that he asserted he had been taking since 1999 and that he had been deprived of since his arrest. (Pls.' Ex. 17 at CTY_00171.) He was seen by a JPS clinician on April 3, 2005, and counseled regarding how to cope without medical marijuana. (Sokolov Decl. ¶ 23.) On April 4, 2005, Lopez submitted another kite directly to Sokolov, stating that he needed his marinol pills; he stated that "marinol with get me thru this." (Pls.' Ex. 17 at CTY_00171.) In both kites, Lopez stated that he was "drifting to the dark side." ...