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Dau v. County of Imperial

United States District Court, Ninth Circuit

May 24, 2013

STEVEN DAU and REBECCA LA RUE, as Successors in Interest to RUTH ANN HALL and MARSHA DAU, Plaintiffs,
COUNTY OF IMPERIAL; et al., Defendants.


DANA M. SABRAW, District Judge.

This case comes before the Court on the motion for summary judgment filed by Defendants California Forensic Medical Group, Inc., John H. Baker, Jr., M.D., Elisa Pacheco, R.N., County of Imperial, Imperial County Sheriff's Department, Raymond Loera, Jose Murguia and Prabhdeep Singh, M.D. Plaintiffs filed an opposition to the motion, and Defendants filed a reply. For the reasons set out below, the Court grants in part and denies in part Defendants' motion.



On July 1, 2011, Marsha Dau was arrested on federal charges, and admitted to the Imperial County Jail. Upon arrival at the jail, personnel from Defendant California Forensic Medical Group ("CFMG") completed an Intake Triage Assessment form for Ms. Dau. (Decl. of Angela Zugman in Supp. of Opp'n to Mot. ("Zugman Dec."), Ex. D at 167-68.)[1] According to that form, Ms. Dau had a history of fibromyalgia, panic attacks and lung cancer. ( Id. ) She arrived at the jail with valium and suboxone, both of which were taken from her and placed in a sealed lock up. ( Id. ) As part of her assessment, Ms. Dau was referred to the medical doctor and to a mental health professional. ( Id. )

Medical records reflect that Ms. Dau received a seven-day prescription for Naproxen and Ultram upon her initial assessment. ( Id. at 173.) Later that day, she received a three-day prescription for Valium and a five-day prescription for Suboxone. ( Id. )

On July 2, 2011, Ms. Dau filled out a request for medical services. (Decl. of Prabhdeep Singh, M.D. in Supp. of Mot. ("Singh Decl."), Ex. H.) Specifically, Ms. Dau requested premarin, and stated that her glasses had been confiscated and she could not see. ( Id. )

On July 5, 2011, Ms. Dau was seen by Defendant Prabhdeep Singh, M.D., an independent contractor for Defendant CFMG. ( Id. ) During that evaluation, Dr. Singh noted Ms. Dau was complaining of pain and anxiety. ( Id. ) He also noted her blood pressure was elevated. (Singh Decl. ¶ 14.) Dr. Singh ordered that Ms. Dau be placed on a Clonidine protocol to monitor her blood pressure. ( Id. ) He also continued her prescription for Naproxen, increased her prescription for Ultram and wrote her a prescription for Tylenol. (Zugman Decl., Ex. D at 173.) Dr. Singh states that he discontinued Ms. Dau's Suboxone during this visit. (Singh Decl. ¶ 17.)

Dr. Singh did not see Ms. Dau again after this visit. He was on vacation from July 14, 2011, to July 22, 2011. While Dr. Singh was on vacation, Uri Guefen, M.D. performed Dr. Singh's duties at the jail. Dr. Guefen was not advised of Ms. Dau's condition during that time.

On July 7, 2011, Ms. Dau was seen by Defendant John Baker, M.D., also an independent contractor for Defendant CFMG. (Decl. of John Baker, M.D. ("Baker Decl.") ¶ 2.) Dr. Baker performs telepsychiatry for prisoners, which involves the prisoner being taken to a private setting, where she is accompanied by a psychiatric nurse, and the use of a video feed that allows Dr. Baker to observe and communicate with the prisoner and the nurse. ( Id. ¶¶ 5-7.) This is the procedure that was used for Ms. Dau's appointment with Dr. Baker on July 7, 2011. Ms. Dau was accompanied by Madell Landrum, R.N., who informed Dr. Baker that Ms. Dau was having "pain issues and was on Suboxone." ( Id. ¶ 6.)[2] Dr. Baker noted Ms. Dau's issues at the time were "physical problems, " and his plan was for Dr. Singh to manage her care. (Baker Decl., Ex. B.)

Over the next few days, nurses checked Ms. Dau's blood pressure and administered her Naproxen, Tylenol and Ultram. (Decl. of Elisa G. Pacheco, R.N. in Supp. of Mot. ("Pacheco Decl."), Exs. C, E.) On July 11, 2011, Ms. Dau reported to medical personnel that she thought she was having a seizure. (Zugman Decl., Ex. D at 188.) Ms. Dau was reported to be hyperventilating and was very anxious and upset. ( Id. )

One of the nurses involved in Ms. Dau's care was Defendant Elisa Pacheco, R.N. On July 12, 2011, Ms. Pacheco attempted to administer Ms. Dau's medications, but Ms. Dau refused. (Pacheco Decl., Ex. C.) Later that day, Ms. Dau was taken to the medical unit for evaluation. (Zugman Decl., Ex. D at 189.) At that time, Ms. Dau was observed to be hyperventilating, and was very anxious. ( Id. ) She was thereafter placed in a safety cell "for bizarre and aggressive behavior[.]" ( Id. at 174.) Ms. Dau's chart reflects the need for a psychiatric sick call, ( id. ), but there is no evidence that either Dr. Singh or Dr. Baker was informed of that request.

Ms. Dau remained in the safety cell for three days. ( Id. at 195-200.) When she first arrived, she was reported to be "very anxious" and aggressive. ( Id. at 195.) The next day she was reported to be much better, but still a little anxious. ( Id. ) Later that day, Ms. Dau refused to have her vital signs taken, and she was observed sitting and then lying on the ground. ( Id. at 196.) While in the safety cell, Ms. Dau continued to refuse to have her vital signs taken, was reported to be "belligerent" and "agitated, " and was also noted to be "talking to herself." ( Id. at 197.) On July 15, 2011, Ms. Dau was cleared from the safety cell and returned to the general population. ( Id. at 199.) The following day, she was placed in administrative segregation for "bizarre behavior." (Zugman Decl., Ex. G.)

It appears Ms. Dau was returned to her cell the following day, where she was found naked on her bed and wrapped in a sheet. (Zugman Decl., Ex. D at 190.) Ms. Dau's clothes were in the toilet with feces on them, and urine was found all over the floor of her room. ( Id. ) She was transported to the medical unit, where she was found to have feces on her back, buttocks and feet. ( Id. ) She was unaware of her condition, and appeared to be confused. ( Id. ) It appears Ms. Dau was then placed in a safety cell, and returned to her cell the following day. ( Id. )

Over the next two days, Ms. Dau refused to have her vital signs taken and she refused her medications. (Pacheco Decl., Ex. C.)

On July 20, 2011, Ms. Dau was returned to the medical unit because she was found in her cell talking to herself and acting bizarrely. (Zugman Decl., Ex. D at 190.) Ms. Dau was placed back in the safety cell for "bizarre behavior and possible danger to others." ( Id. at 175.) She continued to refuse to have her vital signs taken, refused to answer the nurse's questions and was exhibiting aggressive behavior. ( Id. at 202.) Ms. Dau was noted to be lying down naked in the safety cell. ( Id. ) She was later found to be shaking and reported being cold. ( Id. at 203.) She also continued to refuse her medications. ( Id. ) Her medical records reflect that Dr. Singh was notified of her condition, ( id. at 201), but he was on vacation at the time and denies he received any notification of Ms. Dau's condition. (Singh Decl. ¶ 19.)

Ms. Dau's court-appointed attorney visited Ms. Dau in the safety cell on July 20, 2011. (Zugman Decl., Ex. P at 37.) He "thought she looked dehydrated. She looked very pale. She looked weak." ( Id. at 40.) When he entered the cell, Ms. Dau did not sit up or try to cover her naked body. ( Id. at 42.) In his words, "she looked like she didn't have a lot of energy. She just laid there. When I first talked to her, I don't think she was really coherent." ( Id. ) Ms. Dau's attorney observed Ms. Dau talking "to somebody who wasn't there, " and then saw her urinate on herself. ( Id. at 43-44.)

After this visit, Ms. Dau's attorney called Ms. Dau's family members to express concern for Ms. Dau's well-being. ( Id. ) Ms. Dau's mother, Ruth Hall, then called the jail to inquire about her daughter's condition, but was told to call back. (Zugman Decl., Ex. Z.)

Ms. Dau remained in the same condition through the following day, when she was seen by Dr. Baker, again through video feed. (Zugman Decl., Ex. D at 193.) Dr. Baker noted Ms. Dau was complaining of pain everywhere. ( Id. ) He also noted her thoughts were scattered, her mood was depressed, her speech was breathless, she was restless, she had a labile affect and her eye contact was poor. ( Id. ) Dr. Baker noted Ms. Dau was suffering from drug sequelae psychosis, and he prescribed Haldol and Cogentin. ( Id. )

The next day, Ms. Dau was noted to be "cooperative." (Zugman Decl., Ex. D at 205-06.) She was again lying on the floor, and it was noted she needed a shower. ( Id. ) Her medical records also reflect she was mumbling and not responding to questions appropriately. ( Id. at 206.)

Early the next morning, Ms. Dau was observed sitting down in her cell, hands slightly shaky. ( Id. at 207.) Approximately four hours later, Defendant Murguia, the watch commander on duty, observed Ms. Dau in the safety cell. (Decl. of Jose Murguia in Supp. of Mot. ("Murguia Decl.") ¶ 8.) He states she "was awake and moving around the cell." ( Id. ) He "noticed nothing abnormal about Ms. Dau's behavior or condition at that time." ( Id. )

Less than two hours later, at approximately 9:00 a.m., Nurse Pacheco found Ms. Dau lying down in her cell, not responding to verbal commands. (Zugman Decl., Ex. D at 207.) Ms. Pacheco told one of the officers on duty to inform the watch commander to report to the safety cell. ( Id. at H-0111.) When Defendant Murguia arrived, Ms. Pacheco informed him that Ms. Dau needed to be transferred to the hospital. ( Id. )

Ms. Dau was unable to stand up to get dressed, so two officers dressed Ms. Dau. (Zugman Decl., Ex. L at 54.) One of those officers was Diane Worthington. She stated that while dressing Ms. Dau, Ms. Dau's body was tensing up and relaxing. ( Id. at 59.) Officer Worthington and another officer, Ramirez, then placed Ms. Dau in a wheelchair. ( Id. at 60.) Officer Worthington noticed that Ms. Dau's body continue to tense up, which caused her legs to lift up of the wheelchair, and then relax, which caused her legs to bend. ( Id. at 61.) Officer Worthington applied leg irons on Ms. Dau's legs, and cuffed her hands to the leg irons. ( Id. at 64-65.) Another officer on the scene, Martinez, mentioned an ambulance. ( Id. at 69.) Another officer, Romero, said to Nurse Pacheco, "She doesn't look too good, " to which Nurse Pacheco responded, "Oh, stop playing around." (Zugman Decl., Ex. M at 31-32.) Officer Romero then said to Officer Worthington something to the effect of, "She [Ms. Dau] looks dead." (Zugman Decl., Ex. L at 72.) Officer Worthington noticed Ms. Dau's head had slumped forward. ( Id. at 81.) She then wheeled Ms. Dau into a van for transport to the hospital. The van was not equipped with any medical equipment, save for a first aid kit. ( Id. at 75.)

Officer Romero then drove the van to the hospital, with Officer Worthington riding as a passenger in the back with Ms. Dau. ( Id. ) During the five-to ten-minute drive, Officer Worthington noticed that Ms. Dau stopped blinking, and she ceased responding to commands. ( Id. at 76-77.) When they arrived at the emergency room, Ms. Dau's head was slumped forward, and she was still unresponsive. ( Id. at 80-81.) Ms. Dau was then unchained from the wheelchair and moved to a bed where hospital personnel immediately began performing CPR. ( Id. at 82.) Officer Romero states that one of the hospital personnel asked, "Why wasn't an ambulance called?" (Zugman Decl., Ex. M at 46.) At 9:56 a.m., after a few minutes of hospital personnel performing CPR, Ms. Dau was pronounced dead. ( Id. at 50-51.)

An autopsy was performed on Ms. Dau on July 26, 2011. (Zugman Decl., Ex. B.) The autopsy showed Ms. Dau had a "3 cm, stage II decubitus ulcer" on her lower middle back. ( Id. ) The doctor who performed the autopsy opined that Ms. Dau "suffered from atherosclerotic cardiovascular disease which resulted in her ultimate demise. The results of toxicology also revealed an acute multiple drug intoxication which contributed to her death." ( Id. )

On February 17, 2012, Ms. Dau's mother, Ruth Hall, filed the present case against Defendants County of Imperial, Imperial County Sheriff's Department, Sheriff Raymond Loera, California Forensic Medical Group, Inc., Dr. Baker and Nurse Pacheco. Dr. Singh and Corporal Murguia were named as Defendants in an amended complaint. Ms. Hall died on December 6, 2012, prompting her other children, Steven Dau and Rebecca LaRue, to pursue the case on her behalf. The Third Amended Complaint alleges the following claims against the following Defendants: (1) deliberate indifference to Ms. Dau's serious medical needs against all Defendants except Sheriff Loera, (2) negligent hiring, training, retention supervision and control against Defendants Loera and Murguia, (3) violation of Ms. Dau's due ...

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