ANTHONY W. ISHII, Senior District Judge.
In this action for damages, defendants County of Fresno, et al. ("Defendants") have moved for summary judgment or summary adjudication as to all claims alleged by plaintiffs Richard Phillips as administrator of the estate of Troy Phillips ("Decedent") and Tiffany Phillips (collectively, "Plaintiffs") in their Second Amended Complaint ("SAC"). This action for civil rights violation and wrongful death arises out of the co-housing of Decedent, a pretrial detainee, with Jose Cuevas ("Cuevas") who attacked Decedent on February 14, 2012, ultimately causing his death. Plaintiffs' SAC alleges five claims for relief. Plaintiff's first claim alleges violation of 42 U.S.C. § 1983 based on failure to protect in violation of the Due Process Clause of the Fourteenth Amendment. Plaintiff's second and third claims for relief allege supervisory and entity liability for "customs, practices and policies" giving rise to Plaintiffs' claims (second claim for relief) and for failure to adequately train, supervise and select (third claim for relief). Plaintiffs' fourth claim for relief alleges wrongful death pursuant to California common law.
Plaintiff's fifth claim for relief alleges breach of mandatory duty in violation of California Government Code section 845.6. Docket Number 99 stipulates that "[a]ll claims relating to jail staff's response to the subject incident are hereby dismissed from this action." Based on the content of Defendants' motion for summary judgment and Plaintiffs' opposition, the court will proceed on the assumption that the parties have stipulated that all claims arising out of, or in connection with, any alleged delay in provision of medical response to Decedent, including any claims relating to staffing or training and supervision of personnel connected with any response to Decedent's injuries, have been dismissed by stipulation. Based on this presumption, the court finds that Plaintiffs' fifth claim for relief has been abandoned.
The procedural history of this case was most recently recounted in the court's order of July 30, 2015, denying Defendants' motion to dismiss. Doc. # 94. That narrative of the procedural history of this case is incorporated here by reference. Briefly, the complaint in this action was filed on April 15, 2013. On April 15, 2015, the court granted Plaintiffs' motion to file the currently-operative SAC and granted Plaintiffs' motion to substitute defendant Diaz for one of the Doe defendants. Plaintiff's SAC was filed in April 22, 2015. Defendants' motion to dismiss the SAC was denied in its entirety on July 30, 2015. As noted in footnote 1, stipulations by the parties resulted in the dismissal of medical service personnel Moreno, Laird and Narayan and correctional officers Her, Yang, and Castro. Defendants filed their answer to Plaintiffs' SAC on January 14, 2016, and filed the instant motion for summary judgment on March 25, 2016. Plaintiffs' opposition was filed on May 2, 2016, and Defendant's reply was filed on May 20, 2016.
This action arises out of the death of Decedent Troy Phillips following an attack by inmate Jose Cuevas ("Cuevas") during a period of time that Decedent was a pretrial detainee in the custody of Fresno County Jail. Plaintiffs contend that Defendants failed to protect Decedent from being attacked by Cuevas in violation of his rights under the Fourteenth Amendment (Claim 1), and that Defendants failed to properly select, train, discipline and supervise employees responsible for Decedent's safety and that the County of Fresno directly caused the events complained of by failing to provide adequate policies, facilities and services for the care of detainees having psychiatric problems (Claims 2 and 3). Plaintiffs' SAC also alleges a claim for wrongful death under California common law against all Defendants. Defendants have proffered a total of 158 undisputed material facts ("UMF's"). Some of these pertain to Plaintiffs' claims against the individual Defendants who are alleged to have co-housed Decedent and Cuevas in disregard of information that was, or should have been, known to them indicating the unreasonable danger posed by Cuevas to Decedent. Other UMF's pertain to the County of Fresno and individual Defendants who had policy making, personnel training or supervisory roles that directly led to Decedent's harm. Because of the large number of UMF's alleged and because of the extensive opposition by Plaintiffs to many of these UMF's, the court will summarize both Defendants' UMF's and Plaintiffs' objections during the relevant portions of the analysis that follows.
Certain of Defendants' UMF's have been extensively disputed by Plaintiffs who have presented deposition and declaration evidence in support of their own Disputed Material Facts (DMF's). The court notes that Defendants have objected to a large number of Plaintiffs' DMF's on the basis of lack of foundation, hearsay or other procedural grounds. Plaintiffs correctly point out that the court routinely disregards evidentiary objections that could be cured at trial by authentication, testimony of a proper witness or an adequate showing of a witness's qualifications as an expert. All objections on such grounds will be disregarded for purposes of the discussion that follows and all motions to exclude evidence on these grounds are hereby denied without prejudice.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c);
The court has previously noted that among the rights that inure to the person in custody is a right to be protected from the violent acts of other inmates.
Doc. # 34 at 10:6-23.
In
While the legal standard for the imposition of liability for violation of Fourteenth Amendment rights has always been contextually dependent and never "well settled," the matter has become somewhat less settled following the Supreme Court's decision in
While the decision in
The
In the case at bar, Plaintiffs' opposition to Defendants Motion for summary judgment vigorously argues that this court should recognize the tension between
The court also points out that the "objective/subjective" distinction, when applied to jury instructions, results in less of a distinction than the foregoing legal analysis might suggest. This is because while liability under the Fourteenth Amendment may require demonstration of some subjective intent, that demonstration may be the result of an objective inquiry. See Kingsley, 135 S.Ct. at 2473 (subjective intent to punish may be shown by absence of rational basis for prison official conduct). In the context of the facts of this case, liability under the Fourteenth Amendment cannot be avoided by the simple expedient of claiming subjective ignorance of obvious facts. "[U]nder some circumstances, the defendant's knowledge of a substantial risk of harm may be inferred by the obviousness of the risk." Id. at 1981-83.
Based on the allegations currently before the court, the court is anticipates that Defendants will attempt to adduce evidence to show that they lacked subjective knowledge of a substantial risk of serious harm to Decedent, and will try to show that the they had no cause to suspect any risk of harm. It is correspondingly anticipated that Plaintiffs will present evidence to show the risk of harm to Decedent was obvious and will strive to show that risk of harm was so obvious that Defendants should be charged with subjective knowledge of risk. The jury will make a determination based on what they think "obvious" is. At this point the court feels confident that it will be proper to allow jurors to make their own determination of whether the risk was or was not obvious without trying to further embellish (or muddy) the definition of the word "obvious."
Central to Plaintiffs' action is their contention that classification and housing are separate issues and that factors other than classification are important in the determination of an inmate's compatibility with other inmates. Plaintiffs' opposition paints a picture in which Defendants, after classifying a prisoner as AdSeg 20, tries to place those prisoners in group or dual occupancy cells in an effort to make a very limited number of single cells available. Plaintiffs allege that in their effort to free up limited single cell space, Defendants ignore obvious indications that certain inmates should not be housed with other inmates regardless of classification. It is Plaintiffs' contention that the ignoring of serious threats to inmate harm occurred at the individual, supervisory and governmental levels.
Decedent was booked into Fresno County Jail on December 16, 2011, "on charges of burglary, forgery, possession of forged notes, and battery with serious bodily injury." `Doc. # 109-1 at ¶ 81. The parties agree that Decedent was placed in a category of Administrative Segregation ("AdSeg 20") which designates a "psych inmate" who is to be housed in a separate part of the jail in a unit that houses inmates in 12-man units, 2-man units or single (isolation) cells.
Plaintiffs dispute that the classification officer contacted the Jail Psychiatric Service ("JPS") at the time of Decedent's classification as required by policy and alleges that an evaluation by JPS about a month after he was taken into custody revealed that Decedent complained of not receiving prescribed medications and was "hearing voices all the time [and] seeing things like (shadows walking in and out)." Doc. 109-1 at ¶ 83 (Plaintiffs' DMF). From UMF's 85 through 103, Defendants proffer facts to show how Decedent was categorized for purposes of his housing. The facts also show that Decedent had a series of cell mates with whom he had altercations or was otherwise not compatible. Plaintiffs' opposition to UMF's 85 through 103 is offered to show two aspects of Decedent's classification and housing. First, Plaintiffs' opposition tends to show by means of deposition testimony that Defendants were not consistent in the application of their own procedures and policies in determining Decedent's housing and second, that to a significant extent, the housing decisions made by Defendants was driven more by the lack of single-occupancy isolation cells than by application of their own policies and procedures. Plaintiffs also criticize Defendants' UMF's based on the tendency of Defendants to conflate the issue of proper classification with proper housing or isolation.
Defendants proffer UMF's pertaining to the classification and housing of Cuevas at UMF numbers 104 through 122. As with Decedent, Defendants' UMF's pertaining to Cuevas indicate a fairly lengthy history of altercations, fights and threats resulting in a succession of unsuccessful attempts by Defendants to find a compatible cellmate. Plaintiffs' proffer DMF's in opposition to Defendants' UMF's regarding Cuevas that cite deposition evidence tending to show: (1) that Cuevas' behavior was a good deal more bizarre and aggressive than is suggested by Defendants' proffered UMF's including masturbation and defecation on his cell floor and on himself, Doc. # 109-1 at ¶ 108; (2) that Cuevas had been evaluated on occasions prior to being housed with Decedent and found to be in need of isolation for his own protection and the protection of others,
The parties agree that Defendant Rocha housed Cuevas and Decedent together on January 25, 2012. Pursuant to the previously alleged facts, it is Defendants' contention that both Cuevas and Decedent had been properly classified prior to the move and that the move was "lateral" and therefore did not require reclassification. Defendants' proffered UMF # 121 states that "[a]fter October 23, 2011, there were no further reports of incidents between Cuevas and any other inmate until the date of the subject incident [on] February [14], 2012. To this Plaintiffs offer declarations from witnesses attesting to altercations that occurred during the cited time-frame that indicated Cuevas' continuing violent behavior and the ignoring of same by jail staff. See Doc. # 109-1 at ¶ 121 (Defendants' UMF and Plaintiffs 2-page response). It is agreed that Cuevas and Decedent were placed in the same cell on January 25, 2012. Plaintiffs also dispute that there were no reported instances of altercation between Decedent and Cuevas prior to the February 14 incident or that Decedent expressed no misgivings regarding his placement with Cuevas. See Doc. # 109-1 at ¶¶ 138-140.
It is the court's understanding that, as matters stand, violation of Decedent's Fourteenth Amendment rights through the direct actions of individual Defendants are alleged against Defendants Rocha and Diaz only. Plaintiffs allege Diaz is responsible for removing Decedent from isolation housing where Officer Torres recommended that he be housed. Plaintiffs' allege that Diaz removed Decedent from isolation in order to free up an isolation cell in conscious disregard of facts known to Diaz indicating that Decedent should remain in an isolation cell. See Doc. 109-1 at ¶¶ 98 and 102 (disputing Defendants' UMF's alleging Diaz had found a compatible cell mate for Decedent and that Decedent had been moved to provide Decedent with least restricted housing he could handle).
The parties agree that Defendant Rocha made the decision to house Cuevas with Decedent. Defendants allege Rocha "had no evidence that Cuevas posed a risk of physical danger to [Decedent]. Doc. # 109-1 at ¶ 134. Plaintiffs vigorously dispute this allegation by listing all of the facts present in the records of Cuevas and Decedent at the time the decision was made. See Doc. # 109-1 at ¶ 129 (Plaintiffs' opposition to Defendants UMF alleging the co-housing of Cuevas and Decedent "was a `lateral move' which did not require reclassification of Cuevas or [Decedent]").
At the level of a motion for summary judgment, it is not the court's task to weigh either the quantity or quality of evidence. Rather, the court merely determines whether the opposing party has submitted evidence sufficient to create an issue of material fact that must be submitted to a trier of fact. The court notes that both parties have submitted substantial volumes of deposition and declaration evidence. While the court cannot claim in honesty to have read every word of every submission, it has made a review sufficient to find that there are submissions of both expert and witness evidence by both parties regarding the liability of the individual Defendants Rocha and Diaz to conclude that the issue must be submitted to a trier of fact. The motion of the individual Defendants for summary judgment will therefore be denied.
Plaintiffs' TAC alleges claims for supervisory liability against Margaret Mims ("Mims"), Sheriff of Fresno County, Tom Gattie ("Gattie"), Assistant Sheriff of Fresno County, and Rick Hill ("Hill"), administrator of Detention Programs & Services Bureau for the County of Fresno. The status of Defendants Gattie and Hill is not clear to the court at this time. As will be discussed infra, Defendants' UMF's allege that Mimms "was not involved in any decisions regarding [Decedent's] or Cuevas's incarceration at the jail," and Plaintiff disputes the UMF by alleging Mimms is/was responsible for the promulgation of constitutionally deficient policies and procedures. See Doc. # 109-1 at ¶154. Thus, the status of Mims as a Defendant is clear.
With regard to Gattie and Hill, Defendants proffer exactly the same UMF's but Plaintiffs offer no objection to allegations that Gattie and Hill "were not involved . . ." See Doc. #'s 154 and 157. Similarly, Plaintiff's opposition to Defendants' motion for summary judgment mentions Gattie and Hill in the heading for the portion of opposition that alleges supervisory liability based on a failure to train Diaz and Rocha to "make housing decisions based on psychiatric diagnoses." Doc. # 109 at 35:9-10. However, Gattie and Hill are not named in the text and, except as noted above, the court has found no reference to them in Plaintiffs' opposition. The court will continue to refer to the "Supervisory Defendants" in the discussion that follows, but the court expects that the parties will clarify the allegations with regard to Gattie and Hill prior to trial.
In its memorandum opinion and order of July 30, 2015, the court set forth the standard for determination of liability of a supervisory defendant in his or her individual capacity as follows:
Defendants allege a number of UMF's that together go to support the proposition that the individual Defendants Diaz and Rocha were not improperly selected or trained. See Doc. # 109-1 at ¶¶ 32-58. Plaintiffs do not argue that Diaz or Rocha were wrongly selected. The court therefore concludes that any claim of supervisory or entity liability based on initial selection of Diaz or Rocha that may have been alleged in Plaintiffs' SAC has been abandoned.
What remains at issue with regard to Plaintiffs' supervisory are claims against Mims and the County for adoption and promulgation of policies that are themselves insufficient, even if enforced and followed, to prevent constitutional harm to detainees such as Decedent and for acquiescence to customs and practices that resulted Decedent's harm. Also remaining are claims by Plaintiffs that Diaz and Rocha were not adequately trained or supervised.
The center of contention between the parties, as it relates to supervisory liability, is the extent to which existing policies relating to "classification" are sufficient, even if followed, to guide decisions that determine the housing of inmates in isolation or with one or more others. It is Defendants' contention, expressed in a number of UMF's and backed by declarations and deposition testimony, that the policies instituted by Defendants' are sound, reflect relevant standards of care and are both implementable and implemented in real-life situations. Plaintiffs' contend, on the other hand, that the existing policies cited by Defendants are deficient in that they address the broad categorization of inmates along such lines as level of offense, criminal history, previous incarceration experience and the like; but do not address the separate topic of compatibility of inmates with other inmates of the same category.
Plaintiffs contend, again backed by deposition testimony and expert opinion that the placement of inmates based solely on category and solely on the presence or absence of prior demonstrated incompatibility with a particular inmate is not sufficient to meet a constitutional standard of care. Specifically, Plaintiffs contend, based on expert opinion, that Defendants' policies, procedures and practices were constitutionally deficient "when it came to determining where to actually house a mentally inmate and with whom [and] there were no policies, procedures, formal training or even management oversight" of the actual assignment of mentally ill inmates." Doc. # 109 at 28:15-17. Essentially, Plaintiffs contend that, absent an "keep separate" order based on past incompatibility, Defendants were free to place mentally impaired inmates together "to see if it would work out" so long as both inmates were classified as having psychiatric issues. Plaintiffs contend by way of expert opinion that such a policy and/or practice was constitutionally deficient.
With regard to claims relating to training and supervision, Plaintiffs allege in their DMF's proffer expert opinion that County and the Supervisory Defendants "failed to implement adequate training for classification officers," Doc. # 109-1 at ¶ 10, and that they were inadequately supervised. See id. (no oversight on housing decisions) and at ¶ 24 (insufficient auditing of housing decisions).
Again, it is not the court's function to weigh contesting expert opinions or deposition testimony; it is simply to determine if the non-moving party has presented evidence sufficient to raise an issue of material fact. The court is of the opinion that, with regard to the issue of supervisory liability, Plaintiffs have presented evidence sufficient to carry that burden. Defendants are therefore not entitled to summary judgment on the issue of supervisory liability.
Defendants also contend that Defendants Mims, Diaz and Rocha (and, presumably Gattie and Hill) are entitled to qualified immunity. The court has previously outlined the requirements for the defense of qualified immunity thus:
Doc. # 94 at 11:7-17.
Defendants' claim to qualified immunity is based on the contention that facts are lacking to show that "every reasonable jail official would understand that Officer Rocha's decision to house [Decedent] and Cuevas was unconstitutional" because "there was no evidence that Cuevas posed a substantial risk of harm to any inmate, let alone [Decedent]." Doc. # 104-1 at 30:8-11. Defendants' argument relies substantially on the distinction drawn in
Prior to the Supreme Court's decision in
The
The individual Defendants contend that they are entitled to qualified immunity under Ford because "[t]here was no evidence that Cuevas posed a substantial risk of harm to any inmate, let alone [Decedent." Doc. # 104-1 at 30:10-11. The court disagrees. There are two factual differences that distinguish
As the court has noted, the parties have alleged contested facts to show that either or both Decedent and Cuevas were or were not dangerous, that co-housing them would or would not have created a serious risk of substantial harm and that the risk of harm was or was not obvious. The court must therefore conclude that Plaintiffs have alleged facts to show that there remains an issue of material facts as to whether a reasonable officer would have known that co-housing Cuevas and Decedent would have violated Decedent's Fourteenth Amendment right against harm by another inmate. The court therefore finds that qualified immunity cannot be granted to any Defendant at this time.
Plaintiffs' SAC alleges that County is co-liable with Mims, for the promulgation of policies that are constitutionally deficient. Because Plaintiffs have raised an issue of material fact as to whether the policies adopted and promulgated by County are constitutionally deficient, summary judgment must be denied on this ground as to County. In addition, Plaintiffs' contend that County is directly liable for Decedent's harm because it operated its Jail facility knowing that the facility was inadequate to handle the volume of psychiatric inmates it was required to handle and knowing that staffing and services for "psychiatric inmates" were so deficient as to constitute substantial threat of harm to psychiatric detainees such as Decedent. Plaintiffs' opposition to Defendants' motion contends that Defendant Mims made public statements recognizing the insufficiency of Jail facilities to house and treat inmates with psychiatric disorders and that County allowed the Fresno County Jail to continue to function despite knowledge that its ability to properly house and manage inmates with psychiatric problems was constitutionally deficient due to both physical and personnel shortcomings.
The court has found that Plaintiffs have produced evidence in the form of expert opinion that creates an issue of material fact as to whether policies and customary procedures relied upon by jail staff were constitutionally deficient in and of themselves. Since those policies and procedures are promulgated through the authority of Defendant County of Fresno, it follows that County is not entitled to summary judgment for the same reason supervisory personnel are not entitled to summary judgment.
The court's review of Defendants' opposition leads to the conclusion that Defendants have not directly addressed Plaintiffs' contention that the jail facilities themselves are insufficient to provide a level of care to psychiatric inmates that meets Fourteenth Amendment requirements. Defendants' UMF# 147 states in conclusory terms that the pod in which Cuevas and Decedent were housed "was properly staffed." This UMF is vigorously disputed by Plaintiffs' who rely on the deposition testimony of Jeffrey Duran to support the proposition that realignment had left the Fresno County Jail with insufficient isolation cells to meet the needs of an increasing number of inmates with psychiatric issues. See Doc. # 109-1 at ¶ 147 (Plaintiffs' response). Defendants' UMF # 148 proffers that the jail where Cuevas and Decedent were housed "was constructed in accordance with CCR Title 24." While this fact is admitted, it is not particularly relevant to Plaintiffs' contention of inadequate facilities or staffing.
Essentially, Plaintiffs' opposition to Defendants' motion for summary judgment as to County presents evidence to support the contention that Decedent and Cuevas should have been housed in isolation cells but were not because isolation cells were chronically unavailable and that County was fully aware of both the need for and shortage of isolation cells. Based on those facts, the court must find that Plaintiffs have proffered evidence sufficient to raise an issue of material fact as to the liability of County for maintaining constitutionally deficient facilities.
Defendants contend that County and the individual Defendants are immune from Plaintiffs' state law claims by operation of California Government Code sections 844.6, 845.2 and 820.2. Plaintiffs assert that statutory exceptions apply to prevent immunization pursuant to section 844.6 and section 820.2 does not apply to the individual Defendants Rocha and Diaz. The court will consider immunity or lack of immunity to state law claims for County, the Supervisory Defendants and Rocha and Diaz in that order.
Subsection 844.6 immunizes any "public entity" against state claims for injuries proximately caused by any prisoner." Plaintiffs do not dispute that subsection 844.6 applies to immunize County absent some statutory exception. Plaintiffs contend that subsection 844.6(c) provides statutory exception to the immunity provided in subsection (a) because subsection (c) provides that immunity is not available where the injury is cause by "the dangerous condition of public property under Chapter 2 (commencing with Section 830) of this part." Cal. Gov. Code § 844.6. Plaintiffs' argument fails to apprehend all of the provisions of subsection (c). In its entirety, subsection (c) provides: "Except for injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Chapter 2. . . ." (italics added). If there were any ambiguity to this "exception to the exception," such ambiguity is resolved by reference to subsection 845.2 which broadly provides immunity from liability for any public entity or public employee "for failure to provide a prison, jail or penal or correctional facility, or if such a facility is provided, for failure to provide sufficient equipment, personnel of facilities therein." The court concludes the entity Defendant, County of Fresno, is immune from liability from Plaintiffs' claim for wrongful death.
Subsection 845.2 provides immunity for claims arising from deficiencies in "equipment, personnel or facilities." Plaintiffs do not argue otherwise. Correspondingly, Defendants do not contend that supervisory Defendants, where sued in their individual capacities, are not immune with respect to state claims arising from causes other than those covered under subsection 845.2. Thus, there is no argument that, to the extent the Supervisory Defendants may be liable for deficiencies in policy content, training or supervision, the Supervisory Defendants are not immune under subsection 844.6 or any other statutory provision cited by Defendants.
California Government Code subsection 820.2 provides that "a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of an exercise of discretion vested in him, whether or not such discretion was abused."
Plaintiff's fifth claim for relief alleges breach of mandatory duty against County based on County's duty to provide prompt and adequate medical attention. As noted above, it is the court's understanding that all claims based on failure to provide adequate medical care have been withdrawn. The court presumes that Plaintiffs' fifth claim for relief is among the claims withdrawn. Plaintiffs do not argue otherwise.
Defendants contend that Plaintiffs' claim for punitive damages is subject to summary judgement. The court agrees. Plaintiffs do not dispute that punitive damages may be awarded only on a finding of fraud, malice or oppression. Cal. Civ. Code § 3294(a). The court agrees with Defendants that Plaintiffs have not proffered any DMF's to show the requisite state of mind of Defendants nor does Plaintiffs' SAC allege facts which, if proven, would show the necessary malicious or oppressive state of mind. Summary judgment will therefore be granted as to Plaintiffs' claim for punitive damages.
THEREFORE, for the reasons set forth above it is hereby ORDERED that:
1. Defendants' motion for summary judgment is GRANTED as to Plaintiffs' fifth claim for relief and as to Plaintiffs' claim for punitive damages.
2. Defendants' motion for summary judgment is GRANTED as to Plaintiffs' claim for wrongful death under California common law as to County of Fresno only.
3. In all other respects, Defendants' motion for summary judgment is DENIED.
