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Greer v. County of San Diego

United States District Court, S.D. California

October 24, 2019

FRANKIE GREER, Plaintiff,
v.
COUNTY OF SAN DIEGO, WILLIAM GORE, in his individual capacity, ALFRED JOSHUA, in his individual capacity, BARBARA LEE, in her individual capacity, and DOES 1-100 Defendants.

          ORDER: (1) DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO DISMISS; and (2) DENYING IN PART AND GRANTING IN PART DEFENDANTS MOTION TO STRIKE [ECF No. 9]

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE

         Frankie Greer (“Plaintiff”) has sued the County of San Diego (“County”), Sheriff William Gore of San Diego County (“Gore”), Medical Director for the San Diego Sheriff's Department Alfred Joshua (“Joshua”), Medical Administrator for the San Diego Sheriff's Department Barbara Lee (“Lee”), and unknown Doe defendants working for the San Diego County Sheriff's Department (collectively “Defendants”) for injuries suffered after falling from a top bunk onto a county jail concrete floor. Plaintiff alleges claims for violations of his civil rights, common law negligence, violations of the American Disabilities Act (“ADA”), and violations of 29 U.S.C. § 794(a) (“Rehabilitation Act”). ECF No. 1. On June 10, 2019, Defendants filed a motion to dismiss and a motion to strike paragraphs 56, 60-91, 94-107, 164-66, 192-193, 195, 206, 211-216, 218-226, 231, 250, and 251 from Plaintiff's complaint. ECF No. 9. The parties have fully briefed this motion. ECF Nos. 9-1, 13, 14. For the reasons below, Defendants' motion to dismiss is DENIED in part and GRANTED in part, ECF No. 14, and the Defendant's motion to strike is DENIED in part and GRANTED in part. Id. Plaintiff is granted leave to amend his ADA and Rehabilitation Act claims.

         I. Background

         A. Factual Background

         The instant litigation concerns events following the arrest and booking of Plaintiff into the San Diego Central Jail (“the Jail”) on January 31, 2018. ECF No. 1 at 2. Plaintiff is a U.S. Army veteran who was treated at a VA hospital for seizures and prescribed Levetiracetam to prevent his seizures. Id. After his arrest, Plaintiff informed the intake nurses he suffered from chronic seizures and required medicine that was in his pants. Id. He also asked the jail to assign him a lower bunk, as Plaintiff feared he could fall off a top bunk during a seizure. Id. at 6. The medical staff failed to provide Plaintiff with his Levetiracetam, but they did notate his need for a lower bunk in his paperwork. Id. However, the medical staff failed to place the order for the lower bunk in the Jail Information Management System (“JIMS”), and thus the jail staff assigned Plaintiff a top bunk. Id. After he was assigned a top bunk, Plaintiff asked the jail staff for a lower bed and reported he had previously fallen off from a bed due to a seizure. Id. Without the alert in JIMS, the deputy directed Plaintiff to the top bunk because all other beds were taken. Id.

         On February 1, 2018, Plaintiff suffered a seizure while on his top bunk and fell off the bed. His head hit the concrete floor and he was rendered unconscious. Id. Cellmates attempted to alert jail staff of Plaintiff's fall through a cell intercom. Id. However, because the intercom was silenced, his cellmates were unable to contact the deputies. The silent intercom was against jail policy. Id. at 7. The cellmates began yelling, “man down, ” but the jail staff did not respond. Id. Fifteen minutes after Plaintiff's fall, jail staff conducting regular checks found Plaintiff and called for medical assistance. Id. Nurse staff arrived six minutes later, and paramedics arrived approximately nine minutes after the nurses. Id. Hospital records reveal Plaintiff facial fractures, brain bleed, and respiratory failure. Id. at 3.

         In addition, the jail failed to immediately alert Plaintiff's next of kin about his injury due to a failure to properly document Plaintiff's next of kin. Id. at 7. A nurse at the University of California, San Diego turned to social media to find Plaintiff's family and make contact them. For weeks, Plaintiff remained in a coma. Id. When he regained consciousness, he could not recognize family and had suffered significant brain injury. Id. at 7.[1]

         B. Procedural Background

         On February 25, 2019, Plaintiff filed his complaint alleging Defendants were deliberately indifferent to his medical needs in violation of 42 U.S.C. § 1983, had failed to train their subordinates, had failed to supervise and discipline employees, had failed to investigate serious institutional failures, and had committed Monell violations. Id. at 1. Plaintiff further alleged common law negligence, violations of 42 U.S.C. § 12101 (“ADA”) and 29 U.S.C. § 794(a) (“Rehabilitation Act”). Id.

         On June 10, 2019, Defendants filed their motion to dismiss claiming Plaintiff failed to state a claim on which relief can be granted as to the individual Defendants; failed to allege sufficient facts to support any § 1983, negligence, ADA or Rehabilitation Act claims; and that the County is immune to state law claims. ECF No. 9-1. In addition, Defendants moved to strike allegations related to prior lawsuits and litigation involving alleged failures to properly monitor and care for inmates. ECF No. 9. On July 5, 2019, Plaintiff filed his response to the motion to dismiss and the motion to strike. ECF No. 13. On July 12, 2019, Defendants filed their reply in support of the motion to dismiss. ECF No. 14.

         II. Defendants' Motion to Dismiss

         A. Legal Standard for Rule 12(b)(6)

         A complaint must contain only a “short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), not “detailed factual allegations, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned accusations; “sufficient factual matter” must make a claim at least plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A party may thus move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The motion may be granted only if the complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). In making this context-specific evaluation, this court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule does not apply to “‘a legal conclusion couched as a factual allegation, '” Papasan v. Allain, 478 U.S. 265, 286 (1986), nor to “allegations that contradict matters properly subject to judicial notice” or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). In addition, Rule 12(b)(6) does not immunize from scrutiny assertions that are “merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001).

         B. Discussion

         Defendants have moved to dismiss the complaint in its entirety. First, Defendants move to dismiss Plaintiff's § 1983 on the basis that the Complaint fails to adequately allege supervisory liability against Gore, Dr. Joshua, and Lee. Specifically, Defendants argue that the § 1983 claims against Gore, Dr. Joshua, and Lee should be dismissed because Plaintiff does not identify facts that suggest personal participation by the individual defendants or a sufficient causal connection between Defendants' actions and Plaintiff's injuries. Second, Defendants assert that Plaintiff's § 1983 claims fail to confer liability on the County of San Diego under Monell. Third, Defendants contend that they are immune from Plaintiff's state law claim for negligence. Fourth, the Defendants allege that Plaintiff has failed to state a plausible claim for relief under the ADA and the Rehabilitation Act. Fifth, Defendants argue the Plaintiff's request for declaratory and injunctive relief are moot. And finally, Defendants motion to strike portions of the pleadings that they believe are immaterial, scandalous, and impertinent. The Court will address each of these arguments in turn.[2]

         1. Supervisory Liability in § 1983 Claims Against the Individual Defendants

         “Supervisory liability is imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates, for his acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations omitted). A supervisor may be liable if he is either (1) personally involved in the constitutional deprivation; or (2) there is a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). For supervisory officials, liability can exist “even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” Redman v. County of San Diego, 942 F.d 1435, 1446-47 (9th Cir. 1991) (internal citations omitted). The supervisor's participation could include his “own culpable action or inaction in the training, supervision, or control of his subordinates, his acquiescence in the constitutional deprivations of which the complaint is made, or conduct that showed a reckless or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (internal quotations omitted). To impose this type of supervisory liability, Plaintiff must satisfy two conditions: (1) plead detailed factual allegations that “give fair notice” to the defendant to “enable the opposing party to defend itself effectively”; and (2) plead a theory of liability through these detailed allegations that “must plausibly suggest an entitlement to relief such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Id. at 1216.

         Defendants contend that Plaintiff cannot meet these conditions. To impose supervisory liability absent personal participation, Defendants assert that the supervisory official must have known that the policy was so deficient as to be unconstitutional - and then subsequently failed to correct it, resulting in Plaintiff's injury. ECF No. 9 at 6; Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). According to Defendants, Plaintiff fails to allege facts that reveal the personal involvement of supervisory officials, a causal connection between the individual defendants' actions and Plaintiff's harms, or a policy that constitutes a repudiation of constitutional rights. Further, the Supervisory Defendants contend that the prior instances relied upon by Plaintiff as providing “knowledge” are so dissimilar that they could not have provided notice to the Individual Defendants of the existence of any unconstitutional policy that caused Plaintiff harm. As a result, Defendants aver that Plaintiff's § 1983 claims for deliberate indifference against the Individual Defendants should be dismissed.

         Plaintiff counters that he has pled ample facts to support his theory of supervisory liability absent personal participation. Specifically, Plaintiff relies on Starr, where the Ninth Circuit held that Los Angeles County Sheriff Baca could be held liable in his individual capacity for unconstitutional conditions of confinement. In Starr, the Ninth Circuit found Sheriff Baca to be on notice of the need to take steps to protect inmates after multiple inmates had been killed or injured as a result of deputies' misconduct. 652 F.3d 1202, 1205-06 (9th Cir. 2011). The Starr court also found plaintiff's theory of liability plausible in large part because there was “no obvious alternative explanation” for Sheriff Baca's inaction in the face of his “subordinates' repeated violations of prisoners' constitutional rights despite being repeatedly confronted with those violations.” Id. As such, plaintiff had plausibly shown that Baca was deliberately indifferent to the plaintiff's rights when he “acquiesced” through his inaction to the unconstitutional conduct of his subordinates. Id. (Citations Omitted).

         In the instant case, Plaintiff alleges § 1983 causes of action against the Individual Defendants based upon their deliberate indifference in (1) failing to properly report and respond to serious medical needs, (2) failing to properly train staff, (3) failing to properly supervise and discipline staff; and (4) failing to properly investigate misconduct. Plaintiff contends that the Supervisory Defendants acquiesced through inaction in unconstitutional conduct where they had notice of (1) a CityBeat series reporting that San Diego County had the highest mortality rate among California's largest jail systems from 2007-2012 with deaths of sixty inmates, ECF No. 13 at 9, (2) examples of the failure to coordinate and share critical medical information among personnel, and other widespread problems, id. at 8-13; (3) the understaffing of the Citizen Law Enforcement Review Board (CLERB) and back up in investigating in-custody deaths, id. at 14; (4) a San Diego Grand Jury report which details problems with the Jail Information Management System (JIMS) and its operation, id. 13-14; (5) an 2018 report from Disability Rights California reviewing suicide deaths from 2014-2016, id. at 15; and (6) statistics which show that falling from the top bunk is the most common injury in prisons, constituting 72% of injuries. Id. In view of these repeated errors, problems and failings, Plaintiff contends that Lee, Joshua, and Sheriff Gore acquiesced in constitutional violations by failing to offer additional training, supervision, policies, or counseling relating to proper medical care, cell checks and the use and operation of the JIMS system.

         While there is significant factual overlap in the Plaintiff's claims, he has alleged separate causes of actions based on the failure to implement remedial measures in different areas of jail operation. Accordingly, the Court will address the factual basis for each area of operation.

         a. Deliberate Indifference to Serious Medical Needs

         Claims for violations of the right to adequate medical care “brought by pretrial detainees against individual defendants under the Fourteenth Amendment” are evaluated under an objective deliberate indifference standard. Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016).[3] The elements of a pretrial detainee's medical care claim against an individual defendant under the due process clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) 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 (iv) by not taking such measures, the defendant caused the plaintiff's injuries. Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S.Ct. 794 (2019). A constitutional violation may take place when the government does not respond to the legitimate medical needs of a detainee whom it has reason to believe suffers from a medical condition requiring medication. See Lolli v. Cty. of Orange, 351 F.3d 410, 420 (9th Cir. 2003)

         Plaintiff claims that the Jail medical staff were required to obtain, input and document full and accurate medical information from inmates. ECF 1 at 17. Medical staff failed to do so and consequently, Mr. Greer did not receive his prescribed Levetiraetam for preventing seizures and was assigned an upper bunk. Id. at 16-17. When he suffered a seizure, Plaintiff fell off the top bunk but was denied timely medical treatment due to a silenced intercom system and delayed cell checks. Id. at 18. Plaintiff alleges that Individual Defendants were aware of numerous failures in inputting and documenting inmate medical information such that remedial measures were required and that the Defendants' inaction caused Plaintiff's injuries.

         Individual Defendants assert that there are no facts that they “participated in or directed the violations” or knew that a “policy was so deficient to be unconstitutional and failed to correct it.” ECF. No. 9-1 at 13. They describe Plaintiff's allegations regarding their knowledge of injuries due to lack of communication as conclusions that are founded upon prior instances that are so dissimilar that they cannot be the basis for knowledge about an unconstitutional policy. Id. Finally, they argue that Plaintiff has failed to establish a connection between any policy and failure to administer seizure medication. Id. at 14.

         Plaintiff counters that the facts he has alleged in his complaint plausibly show a pattern of failing to communicate critical medical information regarding inmates which was known by the Defendants and which went unaddressed. As to the pattern of unconstitutional violations, he points to the deaths of: (1) Bernard Victorianne, who died due to a drug overdose after staff failed to input information into the JIMS system; (2) Ronnie Sandoval, who also died of an overdose after nurses failed to communicate his medical condition after a shift change; (3) Ruben Nunez, who died after medical staff failed to input critical medical information into JIMS; (4) Heron Moriarty, who committed suicide after jail personnel ignored 28 phone calls from Moriarty's wife warning about his mental state; (5) Tommy Tucker, who died after jail officials said they did not know how to access the JIMS system to get vital medical information. In addition, he relies on a CityBeat series reporting a high mortality rate in the San Diego County Jail from 2007-2012; a CLERB letter to the Sheriff's Department expressing concerns regarding breakdowns in communication during shift changes; the understaffing of the CLERB and its back up in investigating in-custody deaths; and a Grand Jury report identifying problems with the JIMS system. Id. at 10-11.[4]

         Defendants seek to distinguish Starr by noting that the Los Angeles jail received several reports, including one from the Department of Justice in 1996, about the assaults that had occurred in the jail, but did nothing to rectify them. Id. at 1209. To be placed on notice, Defendants assert they had to receive and ignore official reports. Under this view, media reports, statistics, and Citizen Law Enforcement Review Board (“CLERB”) reports cited by Plaintiff are not enough to provide adequate notice. ECF No. 14 at 3.

         The Court rejects the view that only official internal and external reports can provide notice to supervisory officials to support a constitutional violation under supervisory liability. What is important is whether supervisory officials are made aware of problems that require attention by supervisory officials in order to protect the lives of inmates. While notice can be provided in different ways, some of the forms relied upon by Plaintiff are deficient. As to the CityBeat series that reported the mortality rate at San Diego county jails, it does not identify a specific problem or constitutional violation relating to medical care. Meanwhile, with respect to understaffing at the CLERB, there is no indication of how this understaffing was made known to the Individual Defendants and how it is related to a failure to provide medical care. However, as to the five specific incidents identified above, the Grand Jury Report and CLERB letter, these materials provided notice and plausibly support the conclusion that the Supervising Defendants knew or should have known that jail staff did not properly enter information into the JIMS system and did not properly communicate critical medical information to other jail staff as to violate the constitutional rights of inmates. Because there is no obvious alternative explanation for the inaction by the Supervising Defendants, Plaintiff has plausibly alleged acquiescence in an unconstitutional practice, custom or pattern.

         Plaintiff must also show that the inaction by the Supervising Defendants caused Plaintiff's injuries. Gordon v. Cty. of Orange, 888 F.3d at 1125. Here, Plaintiff has alleged that jail staff repeatedly failed to input and communicate medical needs of inmates, that the Supervising Defendants were aware of the problem and did nothing, and that the failure to take corrective action led to the denial of adequate medical care to the Plaintiff. These allegations plausibly show a causal connection between the Individual Defendants' inaction and Plaintiff's injuries. Consequently, the Court finds Plaintiff has ...


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