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Borges v. County of Humboldt

United States District Court, N.D. California

July 25, 2017

Stephany Borges, Plaintiff,
v.
County of Humboldt, Michael Downey, Tim Hershberger, Terri Bittner, Tim Hammer and David Swim Defendants.

          PRETRIAL ORDER NO. 4 REGARDING LEGAL STANDARD FOR CONSTITUTIONAL CLAIM RE: MEDICAL CARE

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff is the mother of decedent Daren Borges, who died after being in a state of acute methamphetamine intoxication while detained in a sobering cell of the Humboldt County Correctional Facility (the “County jail”) on June 13, 2014. Plaintiff initially asserted fourteen claims for relief, and five remain. These claims include a Fourth Amendment claim or, in the alternative, a Fourteenth Amendment claim for denial of medical care by the defendant County officers who detained Borges in the sobering cell after he was brought to the County jail. (Dkt. No 111 at 1-2.) The parties dispute the source of the alleged constitutional violation and the standard applied thereto. For the reasons set forth below, the Courts finds the alleged violation arises from the Fourteenth Amendment and the standard is one of objective deliberative indifference.

         I. Introduction

         On July 10, 2017, the parties filed a revised joint statement regarding proposed jury instructions. (Dkt. No. 203.) Plaintiff's proposed instruction No. 15 (Fourth Amendment- Unreasonable Seizure of Person-Duty to Obtain Objectively Reasonable Medical Assistance) states that “[u]nder the Fourth Amendment, an officer has a duty to obtain medical assistance for a person who has been seized that is “objectively reasonable” under the circumstances . . . .” (Id. at 27.) Defendants counter that Borges' denial of medical assistance claim is properly analyzed under the Fourteenth Amendment's “deliberate indifference” standard. (Id. at 27-28.) The parties previously presented the issue of whether plaintiff's denial of medical care claim is governed by the Fourth or Fourteen Amendment in their briefs filed in connection with defendant's motion for summary judgment. (Dkt. Nos. 67, 78, 94.) The Court requested additional briefing on this issue, which the parties provided. (Dkt. Nos. 101, 102.) In granting in part and denying in part defendant's motion for summary judgment, the Court held that it was “not necessary at [that] juncture to decide whether Borges had a Fourth Amendment right to medical care, rather than just a Fourteenth Amendment right.” (Dkt. No. 121).[1] It is now necessary to determine the constitutional basis and standard of care which apply to Borges' right to medical care.

         II. Legal Framework

         A. Constitutional Basis for Right to Medical Care While in Custody

         The Ninth Circuit analyzes alleged violations of the right to adequate medical care while in custody under the due process clause of the Fourteenth Amendment. Gibson v. County of Washoe, Nev. 290 F.3d 1175, 1187-88, 1196-97 (9th Cir. 2012) overruled on other grounds, Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc). In Gibson, the Court determined that plaintiff's constitutional right to medical care while in custody “derive[s] from the due process clause” and supports an “established right not to have officials remain deliberately indifferent to their serious medical needs.” Id. at 1187.

         The following year, the Ninth Circuit reaffirmed that “failure to provide care for serious medical needs, when brought by a detainee . . . who has been neither charged nor convicted of a crime, are analyzed under the substantive due process clause of the Fourteenth Amendment.” Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Lolli Court distinguished Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996), which held that “the Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant, ” id., on the ground that “[a]lthough the Fourth Amendment provides the proper framework for [] excessive force claim[s], it does not govern [] medical needs claim[s].” Lolli, 351 F.3d 418-419. (Internal citation omitted.) The Court proceeded to apply the substantive due process “deliberate indifference” standard to plaintiff's claim for denial of adequate medical care related to plaintiff's diabetes. Id. at 418-20.

         Several district courts have followed Gibson and Lolli in holding that “[c]laims of failure to provide care for serious medical needs, when brought by a prearraigment detainee . . . who has neither been charged nor convicted of a crime, are analyzed under the substantive due process clause of the Fourteenth Amendment.” Dennison v. Lane, 2013 WL432935 *6 (N.D.Cal. 2013) (quoting Gibson, 290 F.3d at 1187); see also M.H. v. Country of Alameda, 62 F.Supp.3d 1049 at 1076 (N.D. Cal. 2014) (holding that pre-trial detainee's right to adequate medical care “derived from the Due Process clause”); Frary v. County of Marin, 81, F.Supp.3d 811, 823-24 (N.D.Cal. 2015) (same); Weaver v. City and County of San Francisco, 2016 WL 913372 at *7 (N.D. Cal. 2016) (pre-trial detainee's “right to adequate medical treatment is guaranteed by the Fourteenth Amendment's Due Process Clause”); Green v. County of Sacramento, 2016 WL 374561 at *10 (applying Fourteenth Amendment framework to claim that defendant officers delayed plaintiff's access to medical care).

         This Court concurs and finds that plaintiff's claim for denial of medical care by the County officers who detained Borges in the sobering cell after he was brought to the County jail is governed by the Fourteenth Amendment.

         Plaintiff's primary reliance on Pierce and Tatum v. City & County of San Francisco, 441 F.3d 1090, 1097-99 (9th Cir. 2006), in arguing that plaintiff's medical care claim derives from the Fourth Amendment, does not ultimately persuade in light of the Ninth Circuit's holding in Lolli, which specifically contrasted Pierce in distinguishing excessive force from medical needs claims. See Lolli, 351 F.3d 418-419. Similarly, Tatum involved an excessive force claim brought by a decadent's mother against arresting offices, supervising offices, and the City and County of San Francisco seeking damages for wrongful death and other torts under California law and 42 U.S.C. 1983. Tatum, 441 F.3d. at 1093. There, decedent struggled with arresting officers and was forced to the ground and handcuffed. Id. After decedent's breathing became shallow, the officers called an ambulance but did not perform cardiopulmonary respiration (CPR). Plaintiff alleged claims for false arrest and excessive force. Id. at 1093. As in Pierce, plaintiff did allege failure to provide adequate medical care while in custody. Rather, plaintiff alleged that the arresting officers' failure to perform CPR following the arrest constituted excessive force. Id. at 1097. Nowhere does the Tatum court state that, contrary to Gibson and Lolli, a plaintiff's right to medical care while in custody is governed by the Fourth Amendment. Notably, Tatum does not even reference Gibson, Lolli, or a Fourth Amendment right to medical care.[2] The out-of-circuit cases cited by plaintiffs are similarly not apt.[3]

         Accordingly, the Court finds that plaintiff's medical care claim is governed by the Fourteenth Amendment.[4]

         B. Fourteenth Amendment Standard Governing Right to Medical Care in Custody

         Although the Fourteenth Amendment governs plaintiff's medical needs claim, the Ninth Circuit's holding in Castro v. County of Los Angeles, 833 F.3d 1060, raises serious questions as to whether application of the Fourteenth Amendment “subjective” deliberate indifference standard articulated in Gibson and Lolli is proper here. Castro analyzed a Fourteenth Amendment claim against officers who failed to prevent an attack against a pretrial detainee by another inmate with whom he was jailed. The Castro court announced a new, objective “deliberate indifference” standard for analyzing a pretrial detainee's ...


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