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M.H. v. County of Alameda

United States District Court, N.D. California

April 7, 2014

M.H., et al., Plaintiffs,
v.
COUNTY OF ALAMEDA, et al., Defendants

As Amended April 11, 2014.

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For M.H., a minor, individually through her Guardian Ad Litem, Michelle Henshaw, and as successor-in-interest for Decedent Martin Harrison, Michelle Henshaw, Appointed Guardian Ad Litem for Minor Plaintiff M.H., Plaintiffs: John L. Burris, LEAD ATTORNEY, Benjamin Nisenbaum, Law Offices of John L. Burris, Oakland, CA.

For Joseph Harrison, Tiffany Harrison, Individually and as Co-Successor in Interest of Decedent Martin Harrison, Krystle Harrison, individually and as Co-Successor in Interest of Decedent Martin Harrison, Martin Harrison, Jr., Individually and as Co-Successor in Interest of Decedent Martin Harrison, Plaintiffs: Genevieve Kathryn Guertin, Julia Sherwin, Michael J. Haddad, Thomas Kennedy Helm, IV, Haddad and Sherwin, Oakland, CA.

For County of Alameda, a municipal corporation, Defendant: J. Randall Andrada, LEAD ATTORNEY, Andrada & Associates Professional Corporation, Oakland, CA; William W Drury, LEAD ATTORNEY, PRO HAC VICE, Jeffrey Stephen Hunter, PRO HAC VICE, Renaud Cook Drury Mesaros, PA, Phoenix, AZ; Aileen Pang, Valerie Lu Ly, Andrada and Associates, Oakland, CA.

For M. Alhf, individually and in his official capacity as a deputy sheriff for the County of Alameda, Alejandro Valverde, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Joshua Swetnam, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Roberto Martinez, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Zachary Litvinchuk, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Ryan Madigan, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Michael Bareno, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Fernando Rojas-Castaneda, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Shawn Sobrero, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Solomon Unubun, individually, jointly, severally and in his official capacity as an Alameda County Sheriff's Deputy, Defendants: J. Randall Andrada, LEAD ATTORNEY, Andrada & Associates Professional Corporation, Oakland, CA; Aileen Pang, Valerie Lu Ly, Andrada and Associates, Oakland, CA.

For Megan Hast, A.S.W., Defendant: J. Randall Andrada, LEAD ATTORNEY, Andrada & Associates Professional Corporation, Oakland, CA; Valerie Lu Ly, Andrada and Associates, Oakland, CA.

For Corizon Health Inc, a Delaware corporation, Harold Orr, M.D., Defendants: Matthew M. Grigg, LEAD ATTORNEY, Nancy E. Hudgins, Law Offices of Nancy E. Hudgins, San Francisco, CA.

For Zelda Sancho, L.V.N., Defendant: Kathleen Jane Williams, LEAD ATTORNEY, Martha M. Stringer, Williams & Associates, Sacramento, CA; Matthew M. Grigg, Law Offices of Nancy E. Hudgins, San Francisco, CA.

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AMENDED ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

JON S. TIGAR, United States District Judge.

Table of Contents

I. Introduction

II. Procedural History

III. Jurisdiction

IV. Facts

A. Arrest and Medical Screening

B. Transfer to Santa Rita Jail

C. Transfer to Isolation Cell

D. Policies and Training Applicable to Deputy Ahlf Concerning Medical Care

E. Referral to CJMH

F. Altercation with Deputy Ahlf

G. Arrival of the Remaining Sheriff's Deputies

H. Transfer to Hospital and Death

I. Coroner's Report

J. Expert Opinions

V. Evidentiary Objections

VI. Legal Standard

VII. Analysis

A. Deliberate Indifference to Serious Medical Needs -- Individual Defendants

B. Monell Claims

C. Supervisory Liability -- Dr. Orr

D. Excessive Force

E. Loss of Familial Association

F. Bane Act, California Civil Code Section 52.1

G. Negligence, Assault, and Battery as to the County Defendants

H. Negligence as to Nurse Sancho and the Corizon Defendants

I. California Government Code Section 845.6

VIII. Conclusion

I. INTRODUCTION

This case arises out of the death of Martin Harrison while he was in the custody of the Alameda County Sheriff's Office. Plaintiffs Joseph, Krystle, Martin, Jr., and Tiffany Harrison are Mr. Harrison's adult

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children. They assert claims for violation of Mr. Harrison's civil rights pursuant to 42 U.S.C. § 1983 and California's Bane Act, Cal. Civ. Code § 52.1, as well as common law claims against: the County of Alameda; Sheriff Gregory J. Ahern in his official capacity; Sheriff's Deputies Matthew Ahlf, Alejandro Valverde, Joshua Swetnam, Roberto Martinez, Zachary Litvinchuk, Ryan Madigan, Michael Bareno, Fernando Rojas-Castaneda, Shawn Sobrero, and Solomon Unubun; Megan Hast, A.S.W., a social worker employed by Criminal Justice Mental Health (" CJMH" ), an Alameda County employer; Corizon Health, Inc. (formerly Prison Health Services, Inc.); Corizon Health's Regional Medical Director Dr. Harold Orr; and Corizon Health employee Nurse Zelda Sancho.

Before the Court are motions for summary judgment filed by the County Defendants, County MSJ, ECF No. 121, Nurse Sancho, Sancho MSJ, ECF No. 133, and the remaining Corizon Health Defendants, Corizon MSJ, ECF No. 134.

II. PROCEDURAL HISTORY

Harrison's minor son, M.H., filed this action on June 10, 2011. Through two amendments, M.H. added Harrison's two adult sons and two adult daughters as Plaintiffs, as well as Corizon Health, Dr. Orr, and Nurse Sancho as Defendants. The operative Second Amended Complaint was filed November 19, 2012. Second Am. Compl. (" SAC" ), ECF No. 46. M.H. settled his claims against all Defendants, and the Court approved the minor's compromise on October 4, 2013. ECF No. 109. On November 7, 2013, all remaining Plaintiffs voluntarily dismissed their claims against Sheriff Ahern in his individual capacity pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). ECF No. 117.

III. JURISDICTION

This Court has federal question jurisdiction over Plaintiffs' claims arising under 42 U.S.C. § 1983 and 1988, and supplemental jurisdiction over Plaintiffs' state law claims.

IV. FACTS

Many of the facts in this case are disputed by the parties. In reviewing the facts here, the Court will note where facts are disputed. In all other instances, the facts contained herein are undisputed.

A. Arrest and Medical Screening

Decedent Martin Harrison was stopped on August 13, 2010, at 3:55 p.m. for jaywalking by the Oakland Police Department. The officer arrested Harrison pursuant to a bench warrant for failure to appear at trial for violation of California Vehicular Code § 23152(a) (driving under the influence of alcohol). Ly Decl. ISO County MSJ, ECF No. 125, Ex. A at 4. The arrest report states Harrison weighed 140 pounds and was 6'0" tall. Id. He was one day shy of his fiftieth birthday. Id.

1. Medical Screening by Nurse Sancho

Harrison was taken to the Glenn Dyer Detention Facility in Oakland, California. Defendant Sancho, a licensed vocational nurse employed by Defendant Corizon Health (then known as Prison Health Services, Inc.), performed a medical intake assessment, which she memorialized on a standardized intake assessment form. Sherwin Decl. ISO County MSJ Opp., ECF No. 149, Ex. 9, Sancho Dep., 54:10-12; Ly Decl., Ex. A at 2. The form was completed at 5:00 p.m. on August 13. The form contained a standardized set of questions followed by space for a narrative description of the inmate's condition. Harrison's form indicated that his weight was 142 pounds, and that he was between 5'4" and 5'6" tall. Sancho recorded those

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measurements after weighing Harrison, although she did not measure his height. Sancho Dep. 67:10-24. Sancho described Harrison as a " medium-sized guy." Id. She recorded his vital signs as " within normal levels." Sancho Dep. 66:7-11.

Sancho testified that when she examined Harrison, his demeanor and outward physical symptoms were unremarkable. He walked with a " steady gait," stood straight, was coherent, alert, and oriented, and calm and quiet. Id. 69:15-23.

Sancho testified that Harrison told her he had two bottles of beer that afternoon, and that Harrison told her " three to four times" that he did not have problems with alcohol withdrawal in the past. Id. 70:1-6. Sancho testified that she asked Harrison what size the bottles were, but forgot to record it on the form. Id. 71:5-7. She also testified that she understood Harrison to have told her he drank two bottles of beer every day. Id. 72:14-15. When she examined Harrison, he smelled of alcohol and his face was " maybe red, but not puffy." Id. 73:22-24.

Sancho wrote on the form that Harrison drinks every day, and that his last drink was on the day he was arrested. Id. 58:20-22. The form does not state that Harrison smelled of alcohol, what type of alcohol Harrison drank, the amount of daily consumption, the time or amount of Harrison's last drink, or how many years Harrison had been drinking. Id. 58:24-59:12.

Sancho also wrote on the form " w/hx of ETOH w/d," which means " with history of alcohol withdrawal." Id. 79:23-80:3. Finally, she wrote " CIWA," which stands for " Clinical Institute Withdrawal Assessment," a protocol used to evaluate and treat those at risk for severe alcohol withdrawal. Id. 79:23-80:3; 86:5-87:5. Sancho testified that she wrote both phrases in anticipation because Harrison told her he drank every day, and that she then crossed them out when he assured her he did not have a history of alcohol withdrawal. Id. 80:12-16. Above the CIWA notation is the word " error," which Sancho testified she wrote pursuant to Corizon Health training to indicate she crossed the notation out on purpose. Id. 82:13-83:17. Sancho testified that she did not alter the form after her initial screening. Id. 61:9-11.

Sancho spent " three to 10 minutes, or less than 10 minutes" with Harrison. Id. 60:14. She classified Harrison as medical level 3, which means he would not receive any medical follow-up because the nurse found " no medical problem." Id. 65:5-22. Harrison was assigned to the general jail population. Id. Had Sancho concluded instead that Harrison was at risk of alcohol withdrawal, she would have classified him as level 1, which would have resulted in " prompt attention within 24 hours." Id. 66:1-4. The CIWA protocol called for an examination by a physician within twenty-four hours, and examinations by nurses every eight hours. Id. 87:3-6. If a patient on CIWA protocol became symptomatic, the patient might also receive fluids and one or more medications as appropriate, including thiamine, benzodiazepines, opioids, and multivitamins as part of the treatment protocol. Sherwin Decl., Ex. 15, Orr. PMK Dep. 43:9-44:7; Sherwin Decl., Ex. 17 (CIWA Form and Orders).

In a declaration attached to her motion for summary judgment, Nurse Sancho states that she explained to Harrison that he could obtain a " slip/sick call form" and notify a deputy once transferred to general population if he needed any medical attention. Sancho Decl. ISO Sancho MSJ, ECF No. 133-1 ¶ 4. The declaration also states that Sancho had already crossed out the notations for " with history of alcohol withdrawal" and " CIWA," and written the

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word " error" above the notations at the time that Sancho and Harrison signed the intake form. Id. ¶ 11. Sancho declares that she communicated her crossing out of the notations orally to Harrison as well. Id. Sancho also declares: " I have used a CIWA form for a number of arrestees, but they had exhibited many signs and symptoms of intoxication. Because Mr. Harrison was not intoxicated when I performed his intake and showed no indicators of being at risk of alcohol withdrawal, I did not initiate the CIWA protocol." Id. ¶ 14. In particular, Sancho declares that she believed Harrison was truthful with her when he told her he did not have a history of problems with alcohol withdrawal. Id. ¶ 15.

2. Alcohol Withdrawal Training

Sancho had been trained to identify the risk factors for alcohol withdrawal, including in January 2010. Sancho Dep. 11:5-13:20. The manual accompanying the January 2010 training, a one-hour continuing education program, states that Stage I of alcohol withdrawal begins six to eight hours after the last drink, with " tremulousness." Sherwin Decl., Ex. 24 at COR 1967. Nausea, anxiety, and insomnia may also accompany Stage I. Most inmates recover without additional incident within twenty-four to thirty-six hours. Id. at COR 1968. However, according to the training manual, approximately twenty-five percent of Stage I patients progress to more significant stages. Stage II begins eight to forty-eight hours after the last drink. Stage II involves hallucinations that may last one to six days. Id. Stage III begins twelve to forty-eight hours after the last drink, and involves seizures. Stage IV begins forty-eight to seventy-two hours after the last drink. Stage IV is the most serious manifestation of alcohol withdrawal, and is known as Delirium Tremens (DTs). DTs " is a true medical emergency" that presents in one to five percent of patients. Id. The onset of DTs usually occurs three to ten days after the last drink. Symptoms include hypertension, tachycardia, diaphoresis, fever, dilated pupils, and tremulousness. Id. The " hallmark" of DTs is " profound confusion and disorientation." Id. at COR 1968-69. The hallucinations tend to be " persecutory," and patients " may think that members of the medical staff are assailants." Id. at COR 1969. The training goes on to explain how and why nurses should institute a CIWA protocol. The training document states:

Inmate patients should be evaluated for use and/or dependence on alcohol and other drugs during the intake receiving screening process. Inmate patients should be questioned on current use and problems associated with alcohol/drug abuse in the past. Anyone with a previous history of serious complications from alcohol withdrawal . . . should have the withdrawal protocol initiated.
* * *
Specific information should be obtained regarding: Type of substance(s) used; Frequency and amount of usage; How long the inmate patient has been using; Time of last use; Side effects experienced when ceasing use in the past . . . . If alcohol withdrawal or the potential for alcohol withdrawal is suspected, the CIWA-Ar form should be initiated to quantify symptoms . . . .

Id. At her deposition, Nurse Sancho testified that she understood this training, including the fact that Stage I symptoms do not present until six to eight hours after cessation. Sancho Dep. 41:9-43:24.

3. Disciplinary Action

On August 17, 2010, at approximately 3:15 p.m., Corizon's Assistant Health Services Administrator, Lenore Gilbert, inter viewed

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Sancho regarding the Harrison case. Gilbert memorialized the meeting in a memorandum to Corizon's Bill Wilson. Sherwin Decl., Ex. 14. The document states Sancho was represented at the meeting by a licensed vocational nurse and union representative, Barbara Ralls.

Gilbert noted that " the documentation on the inmate's screener was not satisfactory or complete." Id. at 1. In particular, Gilbert and Corizon's Joel Smith told Sancho that the intake form " has very limited information regarding any drug/alcohol history. The type and amount of alcohol used was not documented. The history of ETOH and CIWA statement was crossed out. Why was that?" Id. According to Gilbert, Sancho responded: " He denied having any drinking problems. He said over and over, 'No problems, no withdrawal.' She stated that she asked him this same question 4 times and his response was the same." Id. Gilbert then told Sancho that she failed to document how much Harrison drank daily, and that she failed to document what type of alcohol Harrison drank. Sancho told Gilbert that Harrison said he drank " 2 bottles of beer." Id. at 2. Per the memorandum, Sancho said she forgot to document that information, and also volunteered that she forgot to document that Harrison smelled of alcohol, " a mild smell," and that he had a red, flushed face. Id. Gilbert noted that Sancho said she did not initiate a CIWA protocol because she " didn't think to. He had no alcohol problems, he said." Id. Gilbert noted that she then told Sancho that her failures to document accurately and initiate a CIWA protocol constituted " unsatisfactory performance by you as the nurse . . . . [D]ocumenting your complete observations, asking and documenting the screening questions in their entirety, and starting inmates who drink alcohol regularly on a CIWA is critical for the safety of the inmate." Id.

According to another, similar memorandum prepared by Gilbert, Sancho also failed to document the amount and type of alcohol a different inmate consumed. Sherwin Decl., Ex. 32 at 1-2. At a counseling session with Sancho, Gilbert discussed the second inmate's case. Sancho was represented by union representative and licensed vocational nurse Blaire Behrens. Id. at 1. According to the memorandum, in response to a question about incomplete documentation, Sancho indicated she had no reason for the failure to document. Sancho stated that she referred the patient to " psych," but Gilbert did not find any such referral. Id. at 2. When asked why she didn't document completely, Sancho did not offer an explanation, but asked " Does this mean that I don't have to work there (ITR) anymore?," at which point Sancho's union representative " puts her hand out to stop Zelda from talking . . . ." Id. at 2. In the conclusions section of the $Tmemorandum, Gilbert wrote: " Zelda's question about working in booking leads me to believe that she may be looking for a way out of working where she is assigned. Is that why she was doing an inadequate job?" Id.

The second memorandum also discusses an altercation Sancho had with a physician, in which Sancho refused to comply with the physician's request that she put a Q-tip to the eye of the patient, forcing the physician to send the patient to the hospital for further testing. Id.

At his deposition, Bill Wilson, Corizon's Health Services Administrator, confirmed that Corizon Health believed Sancho should have placed Harrison on CIWA. Sherwin Decl., Ex. 11, Wilson Dep. 49:15-18. He also testified that he determined Sancho should be terminated based on Sancho's intake of Harrison, the intake of the patient discussed in Gilbert's second

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memorandum, and Sancho's refusal to follow a physician's order in a third case. Id. 59:1-5. Wilson testified that in his forty years in the health care field, he had faced few disciplinary situations as serious as Sancho's. Id. 60:10-15. Wilson confirmed that he felt Sancho jeopardized patient safety. Id. 60:20-22.

On September 15, 2010, Corizon Health reported Sancho to the Board of Vocational Nursing and Psychiatric Technicians. Sherwin Decl., Ex. 33 at 1. On the " Employer Mandatory Reporting Form," Corizon Health indicated Sancho was terminated for " Gross negligence or incompetence" and " Failure to follow procedure policy." Id. at 2.

4. Evidence Regarding " Mutilation" of the Intake Form

Plaintiffs maintain Nurse Sancho crossed out the alcohol withdrawal and CIWA notations on the intake form after the fact. As discussed below, Megan Hast, a CJMH social worker, testified that she believed Harrison had been placed on CIWA, which Plaintiffs argue is evidence that, at the time Hast reviewed the intake form, the notations had not been crossed out and the word " error" had not yet been written. In addition, Plaintiffs point to Corizon policy, which requires that an " error" notation be accompanied by an explanation in the margin. Sherwin Decl., Ex. 35, Granlund PMK Dep. 40:7-11. According to Corizon, the strike-out also constitutes impermissible " mutilation" of the medical record that contravenes Corizon policy and training. Id. 40:12-19.

Plaintiffs also submit the report of a forensic document examiner, Patricia Fisher, who examined the original medical record and determined that the " cross-out was written at a later time and the word, 'error' was not written simultaneously with the paper in the same position as the 'CIWA' letters." Fisher Decl., ECF No. 155, Ex. A at 2. In her declaration, Sancho states: " When I was filling out the form on August 13, 2010, I moved the paper around a bit as I wrote and also when I turned the form over to Mr. Harrison for his signature." Sancho Decl., ¶ 17.

B. Transfer to Santa Rita Jail

Harrison was transported to Santa Rita Jail on the night of August 13, arriving at 11:51 p.m. Ly Decl., Ex A at 5. On August 15, at approximately 6:00 p.m., Deputy Ahlf first encountered Harrison in Housing Unit 33, during " evening pill call," when Harrison " came up asking for medications." Sherwin Decl., Ex. 30, Ahlf Dep. 51:5-7. At that time, Deputy Ahlf did not know Harrison was an alcoholic, nor did he learn that information prior to Harrison's death. Id. 52:9-18. Ahlf testified that he could typically find out about an inmate's medical history by " calling the charge nurse and having his file pulled." Id. 52:23-25. During this encounter, Harrison asked for medications, and the pill call nurse did not find that any were prescribed for him. Deputy Ahlf issued Harrison a sick call slip and told Harrison he could fill it out and provide it to the nurse for follow-up. Id. 53:8-15. Harrison did so. His sick call slip states only " I was told to" as the reason for a visit. Sherwin Decl., Ex. 19 at PLF 303. His appointment arising out of the sick call slip was set for August 17, two days later. Id. at PLF 294.

Deputy Ahlf next encountered Harrison the following day, August 16, at 3:30 a.m, during morning pill call. Harrison again asked for medication. Deputy Ahlf told him he would have to fill out a slip. Ahlf Dep. 54:9-56:2. Deputy Ahlf did not ask him what type of medication he needed. Id. 56:3-5. Sometime soon after the morning pill call, Deputy Ahlf was called to Lower D Pod to check on an inmate. Id.

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56:17-21. The inmate was Harrison; several inmates told Deputy Ahlf that Harrison was " acting bizarrely; that he needed to be moved out of the pod." Id. 57:1-7. Harrison asked Deputy Ahlf " why there was a bunch of women in his house." Id. 57:9-10. Deputy Ahlf determined that Harrison should be moved out of minimum security " [f]or his safety and the safety of the other inmates" because " [h]e was displaying actions that were bizarre . . . verbal statements that were bizarre, out of the ordinary." Id. 58:7-15. Later, Deputy Ahlf told his supervisor that he had concluded Harrison did not know where he was. Id. 60:19-23.

C. Transfer to Isolation Cell

Deputy Ahlf transferred Harrison to the East Isolation Center. He began an " Intensive Observation Log" which bears the date and time as August 16 at 4:15 a.m. Sherwin Decl., Ex. 53. Deputy Ahlf logged the reason for the transfer as " Bizarre Behavior / CJMH Referral." Id.

Deputy Ahlf testified that he let his sergeant know that Harrison needed a mental health referral, but he did not complete one himself because there was no one in the mental health office at the time. Ahlf Dep. 50:22-23; 70:4-10. Deputy Ahlf also testified he called the daytime sergeant -- Sergeant Camara -- and told him Harrison needed a mental health referral, and that Sergeant Camara told him he would follow up with the mental health office. Id. 70:4-10. Sergeant Shepard testified that he did not recall being notified of Harrison's need for a mental health referral. Sherwin Decl., Ex. 60, Shepard Dep. 49:1-18. Sergeant Camara has not been deposed in this case. Deputy Ahlf did not notify a nurse or physician of Harrison's behavior, complete a mental health referral form, or notify CJMH that Harrison was in an isolation cell. Ahlf Dep. 50:22-23.

The Intensive Observation Log is a log used to document " direct visual observations" of an inmate every fifteen minutes. Sherwin Decl., Ex. 60. The purpose of the log is for use by mental health professionals and jail staff, so " they can see what the person is doing in the course of the day, in the course of the hours, minutes." Ahlf Dep. 65:2-5. Plaintiffs do not contend that the log lacks entries within the specified time limits. However, the parties agree that Deputy Ahlf failed to make any observations accompanying the entries at 4:20 a.m., 4:38 a.m., and 4:45 a.m., prior to the end of his shift at 5:00 a.m. on the morning of August 16. Sherwin Decl., Ex. 53.

Alameda County policy also requires that observations be recorded " only as they occur." Sherwin Decl., Ex. 60 at 5. Sergeant Dudek interviewed Deputy Ahlf after Harrison was transferred to the hospital, and noted that the log lacked observations for the last two entries as well, at 6:32 p.m. and 6:48 p.m. Sergeant Dudek ordered Deputy Ahlf to complete the log, which he admitted was contrary to County policy, of which he was unaware at the time. Sherwin Decl., Ex. 62, Dudek Dep. 62-69. The log entries Deputy Ahlf filled out after the fact indicate Harrison was awake in bed at those times, which contradicts the County Defendants' claims regarding when Deputy Ahlf observed that Harrison had flooded his cell and was screaming and standing with a mattress over his head, as discussed below. Finally, the form contains space for entries regarding when medical and psychiatric staff are notified. Those entries are blank. Sherwin Decl., Ex. 53.

D. Policies and Training Applicable to Deputy Ahlf Concerning Medical Care

Plaintiffs point to several Alameda County policies and procedures that Plaintiffs

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argue Deputy Ahlf violated with respect to Harrison's medical needs.

Alameda County Sheriff's Office General Order 5.29 provides: " Staff must become familiar with the causes and nature of mental disorders to determine if an individual is a danger to him/herself, others, or is gravely disabled . . . . Staff must be able to recognize general indicators of mental disorders so that appropriate actions can be taken during contacts on the street, during interviews and interrogations or while interacting with the public." Sherwin Decl., Ex. 54 at ACSO 463 (emphasis in original). " Deputy Sheriffs should be aware that substance abuse (drugs and/or alcohol) can also cause delusions, hallucinations, and violent mood swings in an individual." Id. at ACSO 464. General Order 5.29 requires: " Once the Deputy Sheriff has taken control of a situation, he/she should assess the need for medical attention and summon medical personnel if required." Id. at ACSO 466. Policy and Procedure 9.04 states: " Inmates who have mental/emotional disorders or psychotropic problems identified at receiving, screening, or after admission, must be followed up by the medical staff." Sherwin Decl., Ex. 55 at ACSO 459. That policy provides for the initiation of an observation log when an inmate is identified as " mentally disordered." Id. In addition, " [m]edical staff will be notified and perform an immediate initial evaluation." Id. Policy and Procedure 13.12 governs the referral of inmates to psychiatric services. Sherwin Decl., Ex. 56 at ACSO 454. The policy provides that " [w]hen a deputy comes into contact with an inmate they suspect is suffering from a mental disorder, PHS or CJMH will be contacted to examine the inmate." Id. " It is the responsibility of staff who suspect a disorder to complete and submit the Mental Health Referral Form." Id. " A nurse or physician must immediately be notified of the inmate's behavior" through a referral made by the sheriff's deputy. Id.

A bulletin distributed by CJMH to Alameda County and Corizon Health staff requires in large lettering: " Whenever an inmate is placed in a Safety Cell or there is a possible WI 5150 situation, CJMH must be notified immediately. CJMH is now on-site 7 days/wk, 15 hours/day. From 0800-2300 contact the ITR Screener at x.46905. From 2300-0800 contact the On-Call Clinician at x.53200, enter pager #5098, followed by your full phone number with area code." Sherwin Decl., Ex. 58. Even though there were no CJMH personnel in the mental health office at the time, it is undisputed that Deputy Ahlf could have called the on-call clinician at 4:00 a.m. on August 16 when he transferred Harrison to the isolation cell.

The County's Rule 30(b)(6) person most knowledgeable regarding the handling of mentally disordered inmates confirmed that, absent an emergency, County policy required a " prompt referral" to CJMH. Sherwin Decl., Ex. 57, Back PMK Dep. 21:6-9. At the top of the referral form was the admonition: " Rule out drug toxicity, alcohol withdrawal, head injury, et cetera, before making a psych referral." Id. 22:1-4; Sherwin Decl., Ex. 59. Sergeant Back also testified that Deputy Ahlf was required by Policy and Procedure 13.12 to fill out a Mental Health Referral Form. Back PMK Dep. 29:6-10.

E. Referral to CJMH

Defendant Hast, an Associate Social Worker with CJMH, began her shift in the CJMH Intake, Transfer, and Release office (" ITR" ) at 3:30 p.m. Sherwin Decl., Ex. 31, Hast Dep. 13:1-14:2. In ITR, Hast would see clients referred by the jail to do crisis interventions, brief therapy, and referrals for medication stabilization. Id.

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Hast was aware that Delirium Tremens " is a medical emergency when somebody is withdrawing from alcohol." Id. at 14:24-15:6. She was familiar with many or even most of the symptoms of alcohol withdrawal. Id. at 17:22-20:10. She testified that she knew that " when somebody is having alcohol withdrawal . . . it's important that medical personnel be dealing with it" because " it's a medical issue that needs to be addressed by medical personnel." Id. at 20:11-19.

Twelve hours after Harrison was transferred to an isolation cell, at approximately 3:30 p.m. on August 16, the sheriff's deputy observing Harrison called CJMH and left a voicemail message requesting an evaluation. The message indicated Harrison was mumbling incoherently, that he had seen a nurse but had no medications, and that he had been put on intensive observation in an isolation cell that morning. Id. 35:18-25; 49:16-20.

Hast retrieved the message at 4:00 p.m. Id. 49:16-20. In addition to reviewing other referrals during the next thirty minutes, she reviewed Harrison's intake screening form -- the form Nurse Sancho had filled out at Glenn Dyer -- and noted on her own chart that Harrison reported alcohol use and that he was placed on CIWA. Id. 35:18-36:11. Plaintiffs point to Hast's chart note as evidence that at the time she reviewed the intake form, the CIWA notation had not yet been crossed out, and that it was crossed out only after the events that led to this action took place. Hast testified that she understood the CIWA notation to mean that Harrison had been placed under the observation of Corizon Health nursing staff to monitor for alcohol withdrawal. Id. 33:1-3. Hast testified that she did not have specific knowledge concerning how the CIWA protocol is implemented because it is undertaken by medical staff, not mental health professionals. Id. 33:20- 34:6.

At approximately 4:30 p.m., Hast called the housing unit, and she was informed the sheriff's deputy monitoring Harrison would be leaving in thirty minutes. Id. 52:11-14. Hast was aware that she might miss the deputy if she waited to visit Harrison. She was also aware that the deputy's phone message, combined with the intake form Hast reviewed, indicated it was possible that Harrison was suffering from severe alcohol withdrawal, requiring immediate attention. Hast testified that she did not go immediately because " I would imagine that I was looking at all of the referrals that I had and triaging. And so in my process of triaging, I made that decision." Id. 53:1-3. At the time of her deposition, Hast testified that she could not recall whether any other inmate had a medical emergency at the same time that she called the housing unit. Id. 54:4-9.

Hast arrived at the housing unit an hour-and-a-half after the referral voicemail message had been left, and one hour after she retrieved the message, at 5:00 p.m. By then, the deputy had left and she was not able to evaluate Harrison. Id. 54:24-55:1. Hast did not request another deputy to come to the housing unit, though she was aware that she could have done so. Id. 55:2-18. Instead, she looked through the window of Harrison's cell, saw that Harrison was standing at the toilet, and left. Id. 58:5-59:6. Hast testified that, had she evaluated Harrison and concluded he exhibited signs of severe alcohol withdrawal, she " probably" would have contacted a nurse. Id. 59:9-13.

Hast called the housing unit at 6:00 p.m. By then, Deputy Ahlf had just begun another shift and was once again monitoring Harrison. Deputy Ahlf was surprised that no one from CJMH had evaluated Harrison by then, because he considered Harrison's

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situation severe enough to warrant attention sooner. Ahlf Dep. 82:20-83:2. Deputy Ahlf told Hast that he had placed Harrison in the isolation cell at 4:00 a.m. that day due to bizarre behavior, disorientation to time and place, and incoherent mumbling, and that he was not receiving any medication. Hast Dep. 60:1-12. Hast testified that she knew at the time those symptoms were consistent with severe alcohol withdrawal. Id. 60:13-16. Hast was also aware that Harrison's medical records did not include any records indicating he had been placed on a treatment plan to manage his withdrawal. Id. 62:18-63:5. Hast did not notify a medical professional of Harrison's condition, or tell Deputy Ahlf to do so.

Hast did not go to the housing unit after speaking with Deputy Ahlf at 6:00 p.m. because " I would imagine I was triaging the -- all of the people that I was seeing, which I do throughout my shift. And seeing these people and then getting there as soon as I could." Id. 65:7-10. Deputy Ahlf testified that Hast told him she " hadn't gotten around to it" because she had to see other patients. Ahlf Dep. 83:17-21. Hast did not return to the housing unit until 7:00 p.m., after the events described below had already occurred.

Attached to the County Defendants' motion for summary judgment is the declaration of Megan Hast. ECF No. 121-2. In it, Hast provides a more detailed description of the time between 5:00 p.m. and 7:00 p.m. on the night of August 16. She could not recall those details at the time of her deposition. Hast states that when she returned to her office after visiting the housing unit at 5:00 p.m., she had three referral forms in her inbox for three different patients. She states that she: saw " Client 1" at 5:00 p.m., and spent forty-five minutes preparing for and evaluating Client 1; saw " Client 2" at 5:15 p.m., and spent a total of forty-five minutes on Client 2; and saw " Client 3" at 5:30 p.m., and spent a total of twenty minutes on Client 3. She also states: " Thus, the meeting with Client 3 probably ended at about 5:35 p.m." Hast Decl. ¶ ¶ 9-12. Hast next states she: saw " Client 4" at 6:40 p.m., and spent a total of forty-five minutes with Client 4; and saw " Client 5" at 7:05 p.m., and spent a total of forty-five minutes with Client 5. Id. ¶ ¶ 14-15. The declaration also states that Hast returned to the housing unit " sometime after 7:00 p.m.," and that after returning from the housing unit, she wrote her progress note for Harrison and proceeded to " manage the remaining nine clients I had that evening." Id. ¶ 16. None of Clients 1-5 were experiencing a medical emergency. Plaintiffs point out that Hast's declaration accounts for three hours and twenty minutes of time spent either with patients or preparing to evaluate them in a space of just over two hours.

F. Altercation with Deputy Ahlf

At some point around 6:30 p.m. on August 16, Deputy Ahlf observed Harrison yelling and screaming, claiming someone was pointing a gun at him and shooting him. Ahlf Dep. 73:1-3. Harrison had a mattress over his head, the cell was flooded, and there were broken shards of food tray on the floor of the cell. Id. 73:5-10. Harrison was not actively flooding the cell; Deputy Ahlf did not know how he had flooded it. Id. 73:19-24. Harrison was wearing pants and sandals, and a tan shirt, but not his blue uniform shirt, so Deputy Ahlf suspected perhaps he had clogged the toilet with his uniform shirt. Id.

Harrison was standing in one to one-and-a-half inches of water. Id. 74:12-19. At the time Deputy Ahlf was interviewed, after the incident, Deputy Ahlf claimed Harrison had been holding a piece of food tray. At the time of his deposition, Deputy

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Ahlf could not recall if that was the case. Id. 74:20-75:6. Deputy Ahlf asked Harrison why he had flooded his cell and broken his food tray. According to Deputy Ahlf, Harrison responded " I've been in here all day. You guys put me here. What's going on?" Id. 77:1-3.

Deputy Ahlf next asked if Harrison had been seen by anyone that day. Harrison responded no. Id. 77:10-15. Deputy Ahlf " absolutely" expected that someone should have gone to see Harrison by then because a mental health referral should have been made. Id. 77:16-24. Deputy Ahlf told Harrison " Let me try to call mental health and see if there's anybody in the office to try to find out why." Id. 83:6-8. At that point, Deputy Ahlf had the conversation with Defendant Hast described above.

Deputy Ahlf testified that he could have called an additional deputy for backup at this time. Id. 86:22-87:1. Instead, he determined that he should move Harrison to the other isolation cell since Harrison's cell was flooded and dangerous. He told Harrison that he was going to move him, and Deputy Ahlf testified that Harrison responded: " Okay, Deputy Ahlf." Id. 87:7-89:6. Although he had the option of handcuffing Harrison through the port on the cell door prior to moving him, Deputy Ahlf decided to handcuff Harrison after opening the cell door because he did not consider Harrison a threat. He asked Harrison to turn around, put his hands on his head, and walk toward his voice. Id. 87:21-89:1. Deputy Ahlf testified that he did not consider Harrison dangerous at that moment because Harrison was compliant -- " not a threat at that point." Id. Nevertheless, Deputy Ahlf was holding a Taser in one hand " [j]ust in case something were to happen." Id. 89:16. Deputy Ahlf's supervisor at the time, Sergeant Joseph Bricker, wrote in Deputy Ahlf's performance review after the incident that Deputy Ahlf " had a lapse in judgment" when he opted to move Harrison without additional assistance. Sherwin Decl., Ex. 66, Bricker Dep. 31:3-7. At his deposition, Sergeant Bricker confirmed: " I believe Deputy Ahlf should have tried to get assistance in the event that something happened. I think he should have waited for assistance, that was my opinion." Id. 31:14-16.

Once Harrison reached the doorway, Deputy Ahlf asked Harrison to put his right hand behind his back. As he was applying one handcuff, Deputy Ahlf testified, Harrison turned his head and gave him " an unsettling, just blank stare. And it wasn't until that point that I felt that - not that he was going to do something, but something just wasn't right." Ahlf Dep. 91:7-92:1. Deputy Ahlf cannot recall whether he had already put his Taser away at that point, but at his deposition, he believed that he had. Id. 93:3-14. Deputy Ahlf testified that he next put away the handcuffs and " gently nudged" Harrison back into his cell and instructed him to sit on the bench inside the cell. Id. 94:4-6. Harrison moved four to five feet as a result of the " nudge." Id. 94:12-14. Harrison did not sit, and Deputy Ahlf removed his Taser from its holster. Id. 95:11-14. Harrison " proceed[ed] to take a -- I don't want to call it running towards me, but he proceeded to take a couple of steps towards me in which I took that as a direct threat and I deployed my Taser." Id. 95:16-22. Though Deputy Ahlf cannot be sure he would call it running or sprinting, he testified that Harrison was moving " a lot faster than just taking a step." Id. 96:21-24. Deputy Ahlf also told his sergeant at the time that Harrison said " I'm going to kick your ass," or something similar, as he was moving. Id. 101:1-2; 103:2-9. Sergeant Scott Dudek also testified that " obviously [Deputy Ahlf] made a mistake" in moving Harrison without assistance, though Dudek understood why,

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given Deputy Ahlf's prior contact with Harrison, Deputy Ahlf would have opted to proceed alone. Sherwin Decl., Ex. 62, Dudek Dep. 45:20-46:9.

After Deputy Ahlf deployed his Taser, Harrison " kind of stepped backwards a little bit and ended up falling down onto the corner of the bench and got right back up and proceeded to run out the door." Id. 99:23-25. Deputy Ahlf testified that, at that moment, he deployed one dart-mode [1] Taser cycle. Id. 101:5-6. The Taser deployment log shows, however, that two seconds later, Deputy Ahlf deployed his Taser in dart-mode for a second five-second cycle. Deputy Ahlf does not have an explanation for this log record entry, and does not recall the second firing in dart mode. Id. 101:20-102:3.

After the tasing ended, Deputy Ahlf testified that Harrison stood up and charged him. Deputy Ahlf stepped to the side, Harrison slipped on the water, and slid out of his cell on his back, feet first. Id. 104:13-105:6. As Harrison slid, he grabbed hold of Deputy Ahlf's leg, and Deputy Ahlf slipped and fell as well. Id. 105:14-19. Deputy Ahlf got on top of Harrison and a struggle ensued. Deputy Ahlf told Harrison to stop resisting as Harrison thrashed, attempted to kick and free his arms, and spit. Id. 106:13-107:16. Deputy Ahlf testified that he next delivered two open-palm strikes to the back of Harrison's head. Id. 107:18-20. At some point, Harrison had switched from a supine position to a prone position. Id. 107:24-108:4. Deputy Ahlf also delivered closed-fist strikes to Harrison's back and knee strikes to his torso. Id. 108:9-10. Deputy Ahlf testified that Harrison never attempted to punch, kick, or strike him, because deputy Ahlf never gave him the opportunity to do so. Id. 112:9-18.

At some point during this struggle, Deputy Ahlf radioed for backup, and accidentally called backup to housing unit 34 before correcting it to 33. Id. 116:24-117:1. Deputy Ahlf began to become tired and backup did not come immediately, so he held Harrison's arms and held down Harrison's body with his body weight until backup came. Id. 118:16-19. Deputy Ahlf testified that he never held Harrison in a headlock, and that he never applied force to Harrison's neck. Id. 119-120. At this time, Deputy Ahlf testified, other officers first arrived.

G. Arrival of the Remaining Sheriff's Deputies

The evidence in the record concerning what happened next is a mass of contradictory testimony and reflects, at a minimum, the chaotic nature of the events that ensued.[2]

Deputy Valverde arrived first. Id. 122:21-22; Sherwin Decl., Ex. 67, Valverde Dep. 26:10-12. Deputy Valverde testified that Harrison was thrashing about on his stomach, and that Deputy Ahlf was on top of him. Id. 26:10-27:13. When asked whether he saw Deputy Ahlf strike Harrison, Deputy Valverde testified " I do not know." Id. 28:14-18. Deputy

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Valverde did not provide any further detail concerning what Deputy Ahlf was doing to gain control of Harrison. Deputy Valverde testified that he went to Harrison and placed his knee on Harrison's upper back and tried to grab Harrison's right arm with his left hand. Id. 29:5-11. He testified also that he avoided putting pressure on Harrison's neck or head because it can " cause damage." Id. 29:19-30:3. He also testified that Harrison displayed " extreme strength," as he was able to lift Deputy Ahlf and Deputy Valverde from a prone position. Id. 32:12-14.

Deputy Swetnam arrived next, " just a step or two" behind Deputy Valverde. Sherwin Decl., Ex. 68, Swetnam Dep. 19:10-13. Deputy Swetnam testified that he thought Harrison was on his back, not his stomach. Id. 19:8-9. He recalled that Deputy Valverde took a position on Harrison's left side, and Deputy Swetnam went to Harrison's legs, to attempt to take control of them. He noticed Taser wires on the floor. Id. 20:16-20. Deputy Swetnam attempted to pick up Harrison's legs, but Harrison's left leg went stiff and he let out a groan. Id. 20-21:3. Deputy Swetnam believed that a Taser had just been deployed in dart mode. Id. 21:22-23:12.

Deputy Swetnam continued to grip Harrison's legs, but was unable to keep control of them. He then delivered a downward kick to Harrison's lower abdomen, just below the navel. Id. 25:7-20. Deputy Swetnam believed Harrison had just had the " wind knocked out of him." Id. 26:9-10. The three deputies then turned Harrison over, into a supine position. Id. 27:5-15. At some point during this maneuver, other deputies arrived. He does not recall who. Shortly thereafter, Deputy Swetnam heard someone say " He's got the Taser." Id. 28:19-20. Deputy Swetnam took some weight off Harrison's legs and punched him three times in the lower abdomen; he believes Harrison was on his side at this point. Id. 29:1-7. He never saw Harrison with a Taser. Shortly thereafter, Deputy Swetnam believes he saw another deputy -- he does not remember who -- deliver further strikes to Harrison's torso. Shortly thereafter, he heard someone say: " Okay. I've got it, I've got it" or " I've got the Taser." Id. 31:24-25. Deputy Swetnam did not witness Harrison strike anyone, though at his deposition he quibbled with the definition of " strike," as Harrison was violently " thrashing," " wrestling," and attempting to free his legs. Id. 42-49.

Deputy Valverde testified that he noticed the Taser for the first time when he saw Harrison grab the Taser in his right hand. Valverde Dep. 34:10-21. Deputy Valverde attempted to " get it out of his hand" by punching Harrison on the wrist repeatedly, but Harrison would not let go. Id. 35:14-19. Deputy Valverde testified that he " advised everybody that there was a Taser . . . ." Id. 36:2-4. He could not recall whether there were any deputies there at that moment other than he and Deputy Ahlf. Id. 36:10-18. He believes " somebody got control of the Taser" after that, though he did not see it. Id. 36:19-23. Deputy Valverde testified that the deputies were then able to handcuff Harrison. Id. 37:14-15. Deputy Valverde testified that he did not witness any other deputy strike Harrison, that he did not see who handcuffed Harrison or how it was accomplished. Id. 37:5-38:22. The next thing Deputy Valverde remembered was the deputies moving Harrison to an isolation cell. Id. 39:2-6. During that process, Harrison alternately threatened to kill the deputies and yelled that he loved them. Id. 40:1-5.

Deputy Ahlf testified that prior to Harrison's grabbing the Taser, a deputy lifted him off of Harrison. Ahlf Dep. 124:15-20. ...


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