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Moriarty v. County of San Diego

United States District Court, S.D. California

September 24, 2019

MICHELLE MORIARTY, et al. Plaintiffs,
COUNTY OF SAN DIEGO, et al., Defendant.



         This case arises from the death of Heron Moriarty while in custody in the Vista Detention Facility (“VDF”). Plaintiffs brought claims under 42 U.S.C. 1983, as well as various state law theories. The first amended complaint (“FAC, ” Docket no. 23) is the operative pleading, although a number of claims and parties have been dismissed. Two motions for summary judgment are still pending, however, and Plaintiffs have filed a motion for leave to amend.

         Two Defendants who worked at VDF, Sgt. Dale Weidenthaler and Nurse Practitioner Amanda Daniels, filed motions for summary judgment. (Docket nos. 49 and 79, respectively.) Plaintiffs also seek leave to amend the FAC to add four individual Defendants in place of Doe Defendants, to bring new claims against Correctional Physicians Medical Group (“CPMG”), and to add new allegations and a new theory of liability relating to their third cause of action.

         The Court’s ruling on earlier motions to dismiss or strike is now law of the case (Docket no. 87, “Dismissal Order”)) and informs the Court’s analysis.

         Factual Background

         In the weeks leading up to his death, Moriarty began to exhibit signs of mental illness, and had two psychiatric hospitalizations. After the first, he was placed on a “5150” hold for three days. After the second, he was put on a 14-day hold. During these episodes, he made threats to harm himself and others.

         On May 23, 2016, during a conversation with his business partner, Moriarty threatened the life of his wife and family. The business partner’s wife called authorities. The next evening, sheriffs visited Moriarty but determined he was normal.

         At 7:52 p.m. on May 25, 2016, Deputy Lelevier and Deputy Escobar were dispatched to an address in Jamul in response to a report of vandalism, which they learned had been committed by Moriarty; he reportedly threw a chair through his brother’s patio door and drove away. A short while later, the deputies were sent to another address two miles away, in response to a report of a man threatening suicide. En route to that call, they heard a call requesting assistance; a man had crashed into several parked cars and was standing in the street, attempting to get hit by passing cars. When they arrived and compared descriptions of the suspects, they realized Moriarty was involved in all three incidents.

         The Deputies heard Moriarty making delusional statements, and saying he had just been released from a psychiatric hospital, though he appeared “normal, ” because he was well-groomed and dressed in clean clothes. Moriarty also made remarks suggesting he would provoke the Deputies to shoot him. They took him to the Rancho San Diego holding station, where he made more remarks about provoking the Deputies to kill him, and violently kicked his cell door. The Deputies realized Moriarty was having a mental breakdown, put him in restraints, and transferred him to Central Jail. Because of a temporary policy then in place (known as the Pilot Program), they did not take him for psychological clearance.

         At Central Jail, Moriarty was asked if he was suicidal. He answered “no, ” then “yes.” The sergeant on duty, Sgt. Sawyer, refused to accept him, because the Central Jail did not have a safety cell[1] available. Instead, the Deputies transported Moriarty to VDF. Because of the policy then in place, he was not taken for psychological evaluation and clearance before being transferred. The sergeant confirmed that a safety cell was available at VDF, and told “various VDF Deputies that Moriarty was en route and required a safety cell.” (FAC, ¶ 61.) The FAC identifies one of these as Sgt. Banks. (Id., ¶ 11.)

         The FAC alleges that if the Deputies had “followed policy” and taken Moriarty for psychological evaluation and clearance, they would have learned about his two earlier 5150 holds. (FAC, ¶¶ 62, 134.) But, allegedly because of a lack of training, they did not realize what the policy for VDF was, and incorrectly thought it was the same as for Central Jail. (Id., ¶¶ 62, 131.) Even assuming they had learned about Moriarty’s earlier 5150 holds, the FAC does not adequately allege what the Deputies would have learned. A 5150 hold is used for someone who is a danger to himself or a danger to others; he need not be both, as the FAC later argues. (See FAC, ¶¶ 43, 44 (alleging that someone may be subject to a 5150 hold only if they have a severe mental disorder, and are “a danger to self and others”).) Moriarty, as it turned out, was both threatening towards others, and suicidal.

         When the two Deputies arrived, they were contacted by Deputy Dwyer. Escobar did not mention the possibility that Moriarty was suicidal, but Lelevier did, telling Deputy Dwyer about it as soon as they arrived. (FAC, ¶¶ 63–64.) The restraints were removed, and Deputies Lelevier and Escobar took Moriarty to Nurse Preechar. Escobar did not mention to her that Moriarty was suicidal, but Lelevier did, telling her that Moriarty had been turned away from Central Jail because it had no available safety cell. The FAC alleges that before being accepted into county jail, every inmate must be asked whether they are suicidal. When Nurse Preechar asked Moriarty this, he answered “no.” The FAC alleges that, based on this response, she disregarded Lelevier’s warning about Moriarty being suicidal. She did not flag him as a suicide risk, and sent him through the ordinary booking process.

         That same afternoon, for unknown reasons Moriarty was being transferred back to Central Jail when his behavior became too bizarre and threatening. He was put on a “‘psych hold’ to be evaluated on a priority basis.” (FAC, ¶ 66.) He was then put into an ad-seg cell in VDF by himself. In the days that followed, Moriarty’s wife called VDF staff repeatedly, telling them that Moriarty was suicidal and mentally unstable, and needed to be transported to a psychiatric hospital. She supplied VDF staff with Moriarty’s psychiatric and medical information. On May 28, Moriarty was finally evaluated by a psychiatrist, Dr. Lissaur, who noted his obvious mental problems, but sent him back to his ad-seg cell. Moriarty’s behavior continued to be unstable and violent and refused to take medications.

         On May 30, Dr. Lissaur again evaluated Moriarty. He determined that Moriarty was experiencing a bipolar/manic episode. Dr. Lissaur recommended that if Moriarty were to be released the next day, he should be taken to a hospital and that a 5150 hold should be placed on him. Dr. Lissaur sent Moriarty back to his ad-seg cell. The next morning, a psychiatric nurse, Defendant Daniels, evaluated Moriarty. He told her that he might become violent and kill anyone who entered his cell. Daniels initially sent him back to his ad-seg cell, then changed her mind and recommended that he be placed in a safety cell. However, Defendant Weidenthaler, the sergeant on duty, refused.

         An hour later, VDF staff had a “multi-disciplinary meeting” where Nurse Practitioner Daniels, Captain Schroeder, Lt. Mitchell, and Dr. Goldstein all discussed Moriarty. Dr. Goldstein recommended sending him to the psychiatric security unit in Central Jail, but the group decided to keep him in ad-seg and arrange for a 5150 hold on his release. About twelve hours later, Moriarty was found dead in his cell. He had used two T-shirts to choke himself.

         Motion to Amend

         Ordinarily, leave to amend is governed by Fed.R.Civ.P. 15(a)’s standard. Here, however, amendment would also require amending the scheduling order, implicating Fed.R.Civ.P. 16. This requires a showing of good cause. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Among other things, the Court considers the moving party’s diligence. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “If that party was not diligent, the inquiry should end.” Id.

         As a general matter, the Court notes that the scheduling order, including discovery deadlines, has already been extended multiple times. The third amended scheduling order, issued July 24, 2018, was amended twice before Plaintiffs filed their motion for leave to amend: once on October 18, 2018, and again on January 23, 2019, when the discovery deadline was extended to February 20. The October 18 amendment granted a joint motion to continue expert-related dates because the parties were exploring mediation; it did not mention any discovery-related delays. (Docket no. 50.) The January 23 amendment was in response to a joint request made during a status conference on January 17. But based on the audio record of that conference the underlying reason was Plaintiffs’ counsel’s December discovery requests pertaining to CPMG.[2] The audio record also shows that Plaintiffs’ counsel promised to file a motion for leave to amend the following week. In fact, it was filed nearly four weeks later.

         Claims Against CPMG and Its Officials

         With regard to CPMG and the training it provided, Plaintiffs were on notice quite early that CPMG provided little training. Plaintiffs point out that they propounded discovery requesting suicide-related training materials CPMG provided to medical workers. (Mot. to Amd. at 10:25–27.) But CPMG points out it timely responded to those requests by providing orientation materials, the only responsive document. The absence of an employee handbook or other training materials was one source of early notice.

         Another was the deposition of Nurse Practitioner Daniels on August 24, 2018. Without citing the transcript, Plaintiffs characterize her testimony as being “not clear on the issue of CPMG’s training.” (Mot. to Amd. at 10:27–28.) In fact, Daniels testified that she received all her formal training from the Sheriff’s department; the only training she received from CPMG involved shadowing another nurse. (Opp’n to Mot. to Amd., Ex. 3 (Daniels Depo. Tr.) at 16:22–17:6; 98:11–16; 125:7–13.)

         Plaintiffs also accuse Dr. Joshua of lying during his deposition, saying he was “satisfied” with CPMG’s training. (Mot. to Amd. at 10:28–11:5.) They characterize this as intentional concealment of facts that would support a claim against CPMG. The deposition occurred in a separate but similar case, Nishimoto v. County of San Diego, 16cv1974-BEN (JMA) (S.D. Cal., filed June 9, 2017). The transcript (Mot. to Amd., Ex. 7) does not bear out Plaintiffs’ characterization. Joshua was asked whether he had any criticism as medical director in 2015 with the way CPMG trained its psychiatrists and nurse practitioners. He responded by saying that it was “essentially done on the individual level as providers were coming on board . . . by the medical director.” (Id. at 140:17–141:1.) Joshua did not say he was satisfied; rather, he gave an arguably non-responsive answer, by saying he had been told all the new psychiatrists and nurse practitioners were given individual training. His testimony concerning the division of training responsibilities essentially agrees with Nurse Practitioner Daniels’. (See Id . at 141:2–21.)

         Defendants also point to an email by Plaintiffs’ counsel dated October 17, 2018, in which he says they have a claim against CPMG in this case for failing to provide training. (Opp’n to Mot. to Amd., Ex. 4.)

         With regard to new allegations and claims against CPMG, Plaintiffs have not been diligent, and amendment of the scheduling order to provide for this untimely amendment is DENIED.

         Plaintiffs seek to add three officials of CPMG, Drs. Mannis, Rao, and Badre, for their part in CMPG’s failure to train. Because these claims are derivative of claims against CPMG, leave to add them as Defendants is DENIED as well. Even if they were added as nominal parties, none of the claims would apply to them. Furthermore, CPMG will be vicariously liable if and only if any of its providers are liable (just ...

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