United States District Court, E.D. California
JOHN SCALIA, individually and as successor-in-interest of Decedent KIMBERLY MORRISSEY-SCALIA, Plaintiff,
COUNTY OF KERN, et al., Defendants.
MEMORANDUM DECISION AND ORDER RE DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (ECF NO. 67)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
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
Factual Background 
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.
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.
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.
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.
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. 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
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
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.
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.
Qualified Immunity on § 1983 Deliberate Indifference
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 ...