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Scalia v. County of Kern

United States District Court, E.D. California

September 6, 2019

JOHN SCALIA, individually and as successor-in-interest of Decedent KIMBERLY MORRISSEY-SCALIA, Plaintiff,
COUNTY OF KERN, et al., Defendants.




         This case arises from the death of Kimberly Morrissey-Scalia, who died after falling from her bunk while she was a pretrial detainee at Kern County Jail. Decedent's husband, John Scalia (“Plaintiff”), brings claims individually and on behalf of his late wife's estate. Plaintiff brings this case against Kern County, Kern County Hospital Authority (“KCHA”), Kern County Sheriff Donny Youngblood, Kern County Sheriff's Sergeant Joel Swanson, Kern County Sheriff's Detention Deputies Randi Allen and Misty Miller, KCHA Staff Nurse Rowena P. Blakely, and Does 1-100, alleging deliberate indifference under 42 U.S.C. § 1983 and state law causes of action. Having carefully considered the record in this case, the parties' briefing, and the relevant law, summary judgment will be GRANTED IN PART and OTHERWISE DENIED.


         A. Factual Background [1]

         Kimberley Morrison-Scalia was the wife of Plaintiff John Scalia. ECF No. 69 ¶ 1. Ms. Scalia was arrested on June 21, 2016, and was detained in the Kern County Central Receiving Facility and Lerdo Pretrial Detention Facility at all times relevant to this case. Id. Defendant Rowena Blakely had worked at the Lerdo Pretrial Detention Facility as a registered nurse since 1993. Id. ¶ 8. On June 27, 2016, at approximately 11:15 p.m., Deputy Randi Allen was notified that Ms. Scalia had fallen from a top bunk in her cell and had struck her head. Id. ¶ 12. Although Ms. Scalia was standing when Deputy Allen arrived at her cell, at some point during the walk to the infirmary Ms. Scalia stated she could not walk anymore, Deputy Allen obtained a wheelchair, and wheeled her to the infirmary. Id. ¶¶ 13, 15. Upon arrival to the infirmary, Deputy Allen told Nurse Blakely that Ms. Scalia had fallen off her bunk and hit her head. Id. ¶ 16. Ms. Scalia told Nurse Blakely that she fell and hit the left side of her face, left elbow, and left knee. Id. ¶ 18. Nurse Blakely took Ms. Scalia's vital signs, noted a small abrasion on Ms. Scalia's left knee, and at Ms. Scalia's request, administered previously prescribed medication. Id. ¶¶ 19-22. Nurse Blakely ordered Ms. Scalia to be housed on a lower tier and lower bunk and ordered a follow up visit with a physician to occur on June 30, 2016. Id. ¶ 23. Ms. Scalia was taken to a lower tier, low bunk cell. Id. ¶ 24. In total, Nurse Blakely's examination lasted several minutes at most, and Nurse Blakely did not perform a formal neurological assessment, did not ask Ms. Scalia why she was in a wheelchair, did not ask Ms. Scalia whether she had been unconscious, did not ask Ms. Scalia to attempt to walk without assistance, and did not call a physician. Id. ¶¶ 17, 20.

         Several hours later, at approximately 2:30 a.m. on June 28, 2016, Nurse Blakely was called for medical priority regarding Ms. Scalia, and was informed by Deputy Allen that, after receiving an emergency intercom message from Ms. Scalia's cellmate, the deputy found Ms. Scalia on the floor, unconscious. Id. ¶¶ 25-26, 28. Deputy Allen observed Ms. Scalia was unconscious, non-responsive, mumbling, and pale, and found her on the ground near the toilet, with vomit all over the toilet and on Ms. Scalia, and her hands and feet curled in. Id. ¶¶ 27-28. Ms. Scalia was assisted up on a gurney and taken to the infirmary. Id. ¶ 29. Nurse Blakely took Ms. Scalia's vitals and noted a small bump to Ms. Scalia's left eyebrow. Id. ¶ 34. There is a genuine dispute whether Ms. Scalia fell from her bunk a second time. See, e.g., Id. ¶¶ 34-35. Based on her 2:30 a.m. assessment, Nurse Blakely filled out a referral form to send Ms. Scalia to Kern Medical Center Emergency Room. Id. ¶ 36. Nurse Blakely's referral did not state Ms. Scalia had hit her head, that Ms. Scalia could not walk during the initial exam, nor that Ms. Scalia was unconscious and non-responsive during the second exam. Id. ¶ 36.

         The ambulance driver documented that Ms. Scalia was mentally confused and spoke in a nonsensical manner. ECF No. 73-1 ¶ 129. The ambulance arrived at the Kern County Medical Center at 3:34 a.m. on June 28, 2016. ECF No. 69 ¶ 39. Ms. Scalia was initially examined by an E.R. nurse and then an E.R. physician, who found Ms. Scalia alert, responsive, and with gross motor function and sensation intact. Id. ¶ 40. However, around 4:54 a.m. Ms. Scalia became incontinent, and the doctor ordered a CT Scan for Ms. Scalia. Id. ¶ 42. At approximately 5:52 a.m., the CT scan showed “large acute left hemispheric subdural hematoma with significant mass effect and subfalcine herniation to the right and likely early changes of transtentorial herniation with mild mass effect on the brainstem.” Id. ¶ 44. At approximately 8:20 a.m., Ms. Scalia was taken to the operating room for surgery. Id. ¶ 45. However, Ms. Scalia never recovered, was placed on comfort measures by her family on June 30, 2017, and Ms. Scalia was pronounced dead at 12:05 a.m. on July 1, 2016. Id. ¶ 46. An autopsy determined that Ms. Scalia died from blunt injury to the head. Id. ¶ 48. There is a factual dispute whether Ms. Scalia's cirrhosis or alcoholism complicated the head trauma. See, e.g., Id. ¶ 49. There is also a factual dispute regarding whether Ms. Scalia would have survived had surgery been performed earlier. Id. ¶ 84.

         Defendants County of Kern and KCHA are public entities. Id. ¶ 2. Defendant County of Kern operates the Lerdo Pretrial Detention Facility. ECF No. 69 ¶ 3. The employment of the Lerdo Pretrial Detention Facility infirmary nursing staff, including Nurse Blakely, was transitioned from the County of Kern to KCHA on July 1, 2016. See ECF No. 69 ¶ 9.

         B. Procedural Background

         Plaintiff filed this lawsuit on June 17, 2016, in Fresno County Superior Court. ECF No. 1, Exs. A & B. Defendants timely removed to this Court on August 19, 2017. ECF No. 1. Defendants moved for summary judgment on July 2, 2019. ECF No. 67. Plaintiff filed his opposition on July 30, 2019. ECF Nos. 69-72.[2] Defendants filed their reply on August 6, 2019. ECF No. 73. Pursuant to Local Rule 230(g), the Court determined that this matter was suitable for decision on the papers and took it under submission on August 7, 2019. ECF No. 74.


         Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. See Id. at 255; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50. A fact is “material” if its proof or disproof is essential to an element of a plaintiff's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, Inc., 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted).

         The moving party bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact for trial. Celotex, 477 U.S. at 323. If the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P. 56(c); Liberty Lobby, Inc., 477 U.S. at 250.


         Defendants argue that: (1) Plaintiff's First and Second Causes of Action against Nurse Blakely and KCHA pursuant to § 1983 fail because Defendants are entitled to qualified immunity; (2) Plaintiff's Second Cause of Action against KCHA fails because there is no evidence of a custom, practice, or policy of KCHA that caused Ms. Scalia's injuries; (3) Plaintiff's Bane Act claim fails because Nurse Blakely did not act with the requisite intent; (4) Plaintiff's Fourth Cause of Action against KCHA pursuant to Cal. Gov. Code § 845.6 fails because medical care was summoned and KCHA is statutorily immune; (5) Plaintiff's Sixth Cause of Action against KCHA for professional negligence fails because KCHA is statutorily immune; (6) Plaintiff's punitive damage claim fails because Nurse Blakely did not act with malice, oppression or intent to injure; (7) John Scalia, individually, lacks standing to sue on each cause of action except the Sixth Cause of Action for Professional Negligence. Plaintiff opposes most of these arguments.

         A. Qualified Immunity on § 1983 Deliberate Indifference Claim

         The Civil Rights Act, codified at 42 U.S.C. § 1983, provides in relevant part:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an ...

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