United States District Court, S.D. California
MICHELLE MORIARTY, et al. Plaintiffs,
COUNTY OF SAN DIEGO, et al., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS
FOR SUMMARY JUDGMENT; AND ORDER DENYING MOTION FOR LEAVE TO
AMEND [DOCKET NUMBERS 49, 70, 79.]
LARRY A. BURNS CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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.
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 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.,
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.
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
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.
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
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.
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
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. 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.
Against CPMG and Its Officials
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.
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;
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.)
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.)
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
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 ...