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Estate of Silva v. City of San Diego

United States District Court, S.D. California

July 17, 2019

THE ESTATE OF PAUL SILVA, et al., Plaintiffs,
CITY OF SAN DIEGO, et al., Defendants.



         On October 2, 2018, Plaintiffs The Estate of Paul Silva, by and through its successors in interest Leslie Allen and Manuel Silva (the “Estate”), Leslie Allen (“Allen”), and Manuel Silva (“Silva”) (collectively, “Plaintiffs”) filed this action pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act (“RA”), 29 U.S.C. § 794(a), and various state law claims against Defendants City of San Diego (the “City”), Shelley Zimmerman (“Zimmerman”), Andrew Murrow (“Officer Murrow”), County of San Diego (the “County”), William Gore (“Sheriff Gore”), Alfred Joshua (“Dr. Joshua”), Liberty Healthcare Corporation (“Liberty”), and Community Research Foundation (“CRF”). Doc. No. 1 (“Compl.”). Presently before the Court are CRF's motion to dismiss and the County, Sheriff Gore, and Dr. Joshua's (collectively, the “County Defendants”) partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. Nos. 20, 30. Plaintiffs opposed both motions (Doc. Nos. 27, 35), to which the moving Defendants replied (Doc. Nos. 28, 36).[1] The Court found the matters suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. Doc. Nos. 31, 37. For the reasons set forth below, the Court GRANTS IN PART the County Defendants' motion.


         Thirty-nine year-old Paul Silva (“Paul”)[3] suffered from schizophrenia his entire adult life. Compl. ¶¶ 25-26. Paul lived with his father, Silva, and visited his mother, Allen, each morning. Compl. ¶ 27. On February 19, 2018, while visiting Allen, Paul acted out and refused to go home. Compl. ¶ 28. Allen called the San Diego Police Department's Psychiatric Emergency Response Team (“PERT”)[4] and requested assistance for a mental health emergency, or a California Welfare and Institution's Code section 5150 psychiatric hold (“5150 hold”), [5] for Paul. Compl. ¶¶ 29, 45. In the past, Allen had called PERT to assist Paul and on each prior occasion, “a PERT officer would speak to Paul calmly, and Paul would comply with all of their requests.” Compl. ¶ 33. However, due to the President's Day holiday on February 19, 2018, PERT was unavailable. Compl. ¶ 31. Allen decided to wait until PERT became available the following day. Compl. ¶ 34. On February 20, 2018, a PERT unit and a patrol unit arrived. Compl. ¶ 35. Allen informed the PERT unit of Paul's psychiatric condition. Compl. ¶ 35. Plaintiffs allege that while in route to the scene of a call, a PERT clinician has the ability to look up any information in the County's health record about that person's previous contact in the mental health system, which gives the clinician a head start before arriving at the scene. Compl. ¶ 36. Thus, the PERT unit allegedly had access to Paul's prior history of acting out when off his medication. Compl. ¶ 37.

         Officer Murrow-who arrived on the scene with the PERT team and was allegedly aware the PERT team had previously dealt with Paul-“interfered with the appropriate treatment of Paul” and “decided that Paul must have used narcotics despite [Allen's] statement that Paul did not use illicit drugs.” Compl. ¶¶ 38-40. Plaintiffs allege that Officer Murrow ignored evidence of Paul's schizophrenic symptoms and need for treatment and instead arrested Paul without probable cause for being under the influence of a controlled substance. Compl. ¶¶ 42-44. Officer Murrow “refused to follow policy and brought Paul to the [San Diego] County Jail, rather than a designated medical facility.” Compl. ¶ 41. Plaintiffs further allege that members of the PERT team “did nothing to intervene, ” and “did nothing to take Paul to a hospital or a mental health treatment facility.” Compl. ¶¶ 46-47.

         Paul was taken to Central Jail, where intake staff knew Paul suffered from schizophrenia and described him as anxious and hyper-verbal. Compl. ¶¶ 50-51. During the 36 hours he was in jail, no medical staff tended to Paul and he received no medication for his schizophrenia or any other mental health services. Compl. ¶ 69-70. On February 21, 2018, deputies saw Paul running around his cell, throwing himself to the ground, yelling incoherently, staring out the window with his mouth wide open, holding his arms out pointing toward the window and walls, and crawling and rolling on the floor. Compl. ¶ 52. Plaintiffs allege that the deputies realized Paul needed medical attention, but failed to call for psychiatric nursing staff or anyone from the medical unit. Compl. ¶ 53. Moreover, Plaintiffs allege that “no medical care provider was consulted or called for diagnosis or treatment.” Compl. ¶ 71. Instead, deputies pepper sprayed Paul and called for a Tactical Team (“TT”) to remove Paul from his cell. Compl. ¶¶ 54-55. While waiting for the TT for 22 minutes, deputies observed Paul's continued bizarre behavior. Compl. ¶ 56.

         When the TT arrived, they shot him with water balls and “[t]asered him for at least 22 seconds while six other members of the [TT] held him down with a body shield over his torso.” Compl. ¶¶57-59. “At least six members were on or around his body with a shield placed on top of his torso with two officers pushing down on the shield. One deputy instructed the other[s] to use ‘downward pressure with the shield, get your body weight on it.'” Compl. ¶ 60. Deputies heard Paul yell “no, don't do it, sir, ” before his voice became faint and unintelligible. Compl. ¶ 61.

         Paul then became unresponsive and was taken to the UCSD hospital unconscious. Compl. ¶ 62. Plaintiffs allege that the deputies' excessive force caused one of Paul's lungs to collapse. Compl. ¶ 63. Additionally, the medical examiner noted “visible injuries of the head including blood on the forehead, eyebrows and nose; laceration with abrasion on the right eyebrow; contusion to the right eye; upper lip edema; puncture wounds to the torso possibly from the [t]aser; abrasions to the wrist, knuckles, and forearm; puncture wound to the inner thigh[;] and contusions to the left knee and left thigh.” Id. Additionally, “Paul sustained serious and permanent brain damage, neurological injuries, kidney failure and other life-threatening injuries” that put him “in a coma for several weeks before he ultimately succumbed to his injuries.” Compl. ¶¶ 64- 65. Hospital lab results revealed Paul was negative for any alcohol, amphetamines, opiates, methadone, barbiturates, or cocaine. Compl. ¶ 66. The medical examiner ultimately concluded that the manner of death was homicide caused by “restraint, which caused Paul's heart to stop, which resulted in Paul's inability to breathe.” Compl. ¶¶ 67-68.

         Plaintiffs allege that all medical staff of the San Diego Sheriff's Department worked under the direction and supervision of Dr. Joshua, who set the policies and procedures regarding medical services. Compl. ¶ 72. They allege “[t]here had been a systemic failure to adhere to written policies and procedures with respect to providing adequate health care to inmates in the San Diego County jails, ” and a “systemic failure in San Diego County to investigate incidents of medical neglect, staff misconduct, excessive force, and deaths in the Jail.” Compl. ¶¶ 73-74. Plaintiffs allege that sixty inmates in the San Diego County jails died between 2007 and 2012, twelve died in 2013, and sixteen died in 2014. Compl. ¶¶ 75-77. Dr. Joshua was aware of these issues because he “told reporters that staff would be trained to be more attentive to signs that might indicate mental distress, like the condition of an inmate's cell or whether someone was refusing meals.” Compl. ¶ 80. Moreover, Plaintiffs allege that San Diego County officials, including Sheriff Gore, were aware of the systemic problems with “preventable deaths in the jails, but took no action to prevent further Constitutional violations.” Compl. ¶ 78. In fact, they allege that at the time of Paul's death, “there had been a long-standing custom and practice of inadequate investigations; cover-up of misconduct; and failure to discipline and train deputies and medical staff.” Compl. ¶ 79.

         Legal Standard

         A Rule 12(b)(6) motion tests the legal sufficiency of the claims made in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P. 12(b)(6). The plausibility standard demands more than “a formulaic recitation of the elements of a cause of action, ” or “naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Instead, the complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

         Where dismissal is appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

         County, Sheriff Gore, and Dr. Joshua's Motion to Dismiss

         The County Defendants move to dismiss the following causes of action: the second cause of action against Dr. Joshua; the sixth, seventh, eighth, tenth, and eleventh causes of action against the County Defendants; and the ninth, twelfth, fourteenth, and fifteenth causes of action against the County. Doc. No. 30-1 at 7-8.

         A. Plaintiffs' Voluntary Dismissals

         As an initial matter, Plaintiffs indicate that they “will dismiss the Unruh Act claim against defendants City of San Diego and County of San Diego” and will also “dismiss the wrongful death cause of action pursuant to California Code of Civil Procedure section 377.60 on behalf of the Estate[.]” Doc. No. 35 at 29. Finally, Plaintiffs “concur that the prayer for injunctive and declaratory relief should be stricken.” Id. Accordingly, the Court DISMISSES the twelfth cause of action against the City of San Diego and the County of San Diego and the tenth cause of action on behalf of the Estate of Paul Silva. Further, the Court STRIKES Plaintiffs' request for injunctive and declaratory relief.

         B. The Second Cause of Action

         The Estate asserts a § 1983 cause of action for deliberate indifference to serious medical needs against Dr. Joshua. Compl. ¶¶ 129-52. Plaintiffs allege that Dr. Joshua “was deliberately indifferent to Paul['s] serious medical needs by failing to properly set forth policies and procedures for proper care of inmates in medical distress.” Compl. ¶ 142.

         The due process clause of the Fourteenth Amendment guarantees that pretrial detainees receive constitutionally adequate medical and mental health care. See Gordon v. Cnty. of Orange, 888 F.3d 1118, 1122 (9th Cir. 2018). These claims are evaluated under an objective deliberate indifference standard. Id. at 1124-25. To establish a pretrial detainee's medical care claim against an individual defendant, a plaintiff must allege: (1) “the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;” (2) “those conditions put the plaintiff at substantial risk of suffering serious harm;” (3) “the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and” (4) “by not taking such measures, the defendant caused the plaintiff's injuries.” Id. at 1125. “With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each particular case.'” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015)). “The mere lack of due care by a state official does not deprive an individual of life, liberty, or property under the Fourteenth Amendment. Thus, the plaintiff must prove more than negligence but less than subjective intent-something akin to reckless disregard.” Gordon, 888 F.3d at 1125 (internal quotation marks and citations omitted).

         The County Defendants move to dismiss this cause of action as to Dr. Joshua on the grounds that Dr. Joshua did not participate in Paul's treatment while in custody. Doc. No. 30-1 at 12. The County Defendants claim that Plaintiffs' allegations merely show that Dr. Joshua “adopted or failed to adopt unspecified policies that allegedly caused [Paul] to suffer a constitutional deprivation.” Id. Plaintiffs counter that Dr. Joshua acted with deliberate indifference “in failing to implement policies for ...

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