Lopez et al v. The State of Nevada ex rel. Nevada Department of Corrections, No. 2:2021cv01161 - Document 192 (D. Nev. 2023)
Court Description: ORDER granting in part and denying in part ECF No. 84 Motion for Summary Judgment.It is further ordered that the following claims are dismissed: (1) Negligence; (2) Wrongful Death; (3) Gross Negligence; (4) Neglect of Vulnerable Person ; (5) Negligent Hiring, Training and Supervision. It is further ordered that summary judgment for all other claims is denied. Signed by District Judge Anne R. Traum on 9/29/2023. (Copies have been distributed pursuant to the NEF - DLS)
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Lopez et al v. The State of Nevada ex rel. Nevada Department of Corrections Doc. 192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BONNIE LOPEZ, individually as sister Case No. 2:21-cv-01161-ART-NJK and Special Administrator for the Estate of MELODY MORGAN, deceased; COLLEEN LACKEY, ORDER individually as mother of MELODY MORGAN, deceased, Plaintiffs, v. THE STATE OF NEVADA ex rel. NEVADA DEPARTMENT OF CORRECTIONS, WARDEN DWIGHT NEVEN, individually; GARY PICCININI, ASSISTANT WARDEN, individually; BRYAN SHIELDS, individually; OFFICER JOEL TYNNING, individually; OFFICER KARISSA CURRIER; OFFICER JAZMINA FLANIGAN; NURSE JANE BALAO; NURSE BRIGIDO BAYAWA; NURSE LEILANI FLORES; NURSE ROSEMARY MCCRARY; NURSE MA LITA SASTRILLO; NURSE CHRIS SHIELDS; DOES I through X; and ROE ENTITIES I through X, inclusive, Defendants. 19 This case arises out of the tragic death of Melody Morgan (“Morgan”), who 20 died by suicide on April 28, 2018, after hanging herself at Florence McClure 21 Women’s Correctional Center (“Florence McClure”). Plaintiff Bonnie Lopez 22 (“Lopez”) is the special administrator for Morgan’s estate and is also Morgan’s 23 sister. Plaintiff Colleen Lackey (“Lackey”) is Morgan and Lopez’s mother. She 24 brings this action in her own capacity as the mother and as an heir to the 25 decedent. Plaintiffs’ First Amended Complaint (“FAC”) alleges the following causes 26 of action: (1) 42 U.S.C. § 1983 (Eighth Amendment – Deliberate Indifference to 27 Serious Medical Need); (2) 42 U.S.C. § 1983 (Fourteenth Amendment – Loss of 28 Familial Association); (3) Negligence; (4) Wrongful Death; (5) Gross Negligence; (6) 1 Dockets.Justia.com 1 Neglect of Vulnerable Person; (7) Negligent Hiring, Training and Supervision; and 2 (8) Professional Negligence. (ECF No. 1-2.) Before the Court is Nurse Defendants Leilani Flores, Ma Lita Sastrillo, and 3 4 Brigido Bayawa’s Motion for Summary Judgment (ECF No. 84). 1 5 I. BACKGROUND 6 Plaintiffs allege the following. Decedent Melody Morgan was diagnosed with 7 bipolar disorder, schizophrenia, and multiple personality disorder, and she had 8 approximately three psychiatric hospitalizations. (ECF No. 1-2 at ¶ 31.) Morgan 9 also “had a history of suicidal ideations” and had attempted suicide multiple 10 times since age fourteen. (Id. at ¶ 32.) In December 2012, Morgan was arrested 11 and detained for various criminal charges. While detained, she was placed on 12 suicide watch for suicidal ideation. On December 21, 2012, she attempted suicide 13 and was placed on suicide watch. (Id. at ¶¶ 33-34.) 14 In 2013, Morgan pled guilty to a felony and was incarcerated at Florence 15 McClure in Las Vegas, Nevada. (Id. at ¶ 36.) Upon admittance at Florence 16 McClure, Morgan’s Presentence Investigation Report, Nevada Department of 17 Corrections Transport Form, and other intake forms identified her mental health 18 issues and suicidal ideations. (ECF No. 117-1 at 2; ECF No. 117-2 at 2-4.) 19 Subsequent evaluations at Florence McClure further documented these mental 20 disorders and suicidal tendencies. (ECF No. 117-3 at 70:23-71:01.) Morgan was 21 later transferred to the Jean Conservation Camp, a minimum-custody camp in 22 Nevada for female offenders. (ECF No. 1-2 at ¶ 38.) On April 19, 2018, Morgan 23 and another incarcerated individual escaped from the Jean Conservation Camp. 24 (Id. at ¶ 39.) Law enforcement apprehended Morgan on April 26, 2018, after her 25 mother, Lackey, reported her location. (Id. at ¶¶ 44–45.) Before law enforcement 26 apprehended Morgan, Lackey told Defendant Inspector Bryan Shields that 27 28 This Order focuses on the claims related to the failure to provide a full intake. A separate order will address the claims related to the care following Morgan’s suicide. 1 2 1 Morgan had a history of mental illness and suicide attempts and requested 2 officials put Morgan on suicide watch because of the risk she would hurt herself 3 if 4 reincarceration. (Id. at ¶¶ 40–42.; ECF No. 118-6 at 37:18-38:15; ECF No. 118-3 5 at 144:19-145:18.) Inspector Shields relayed Lackey’s concern to Defendant 6 Lieutenant Karissa Currier at Florence McClure. (ECF No. 1-2 at ¶ 13; ¶ 48.) re-captured, especially if she discovered her mother’s role in her 7 Lieutenant Currier and Officer Flanigan dispute what happened after this 8 phone call. According to Lieutenant Currier, on April 26, 2018, she called Officer 9 Flanigan to convey Lackey’s concerns to medical staff and have Morgan placed 10 on suicide watch. (ECF No. 118-8 at 37:20-39:10.) Lieutenant Currier claims that 11 she ordered Officer Flanigan to inform the medical staff at Florence McClure of 12 Lackey’s concern, but Officer Flanigan denies that Lieutenant Currier gave her 13 that command. (ECF No. 1-2 at ¶ 14; ¶¶ 49–50.) Officer Flanigan testified that if 14 she had received such a call, she would have written it down in her notes, added 15 the information to a shift log entry on her computer, asked follow up questions, 16 and notified medical staff. (ECF No. 118-9 at 38:13-39:25.) Officer Flanigan 17 stated that she checked her personal notes and shift log and neither documented 18 the April 26 call; however, she did not keep her personal notes. (ECF No. 115-9 19 at 43:01-43:25.) Lieutenant Currier did not document the call in a shift log either, 20 although she stated in her deposition that shift command does not do shift logs. 21 (ECF No. 115-8 at 47:12-47:15.) 22 Following Morgan’s apprehension, law enforcement took Morgan to 23 Florence McClure on April 26, 2018. (ECF No. 1-2 at ¶ 51.) Morgan was informed 24 that her mother had assisted in locating her. (Id. at ¶ 46.) Morgan was housed 25 alone in a cell without any suicide precautions. (Id. at 25.) The Florence McClure 26 medical staff neither received any messages regarding Lackey’s concerns nor 27 conducted a psychological or psychiatric evaluation of Morgan. (Id. at ¶ 56.) 28 Nurse Bayawa claims that if medical staff had received information concerning 3 1 Morgan’s high suicide risk, then Morgan may have been placed in a suicide room, 2 which is a stripped cell with a camera, suicide blanket, and check ins every 15 3 minutes. (ECF No. 115-11 at 60:23-62:22.) Two days later, on April 28, 2018, 4 Morgan hanged herself in her cell at Florence McClure. (ECF No. 1-2 at ¶ 56; 58.) 5 Multiple regulations establish screening requirements for inmates. 6 Administrative Regulation (AR) 643 requires a Registered Nurse to conduct a 7 preliminary medical and mental health assessment within twenty-four hours of 8 their initial intake. AR 643.02(3). AR 645 states that [n]ew admissions to the 9 Nevada Department of Corrections (NDOC) will receive a mental health screening 10 to include a mental health history, suicide potential, evidence of serious mental 11 illness, or acute mental health urgency.” (ECF No. 111-5 at 2.) Similarly, Florence 12 McClure Medical Directive 135 requires a registered nurse or licensed practical 13 nurse to “immediately assess inmates” and complete DOC 2510 Intake Screening 14 Form which asks about visual observations of the inmate, their mental status, 15 inmate 16 prescriptions, placement recommendations, necessary referrals, and PPD results. 17 (ECF No. 111-6 at 2-3.) Doc 2510 specifically asks about inmates’ past history of 18 mental health treatment, history of suicide attempts or self-mutilation, current 19 thoughts of suicide, suicide prevention plans, and whether the inmate feels 20 unsafe until seen by a mental health practitioner. (Id. at 5.) Florence McClure 21 Medical Directive 319 establishes suicide prevention and response procedures 22 and states “[i]nmates in the Intake/Reception Centers should be initially 23 screened upon arrival by a nurse and a mental health professional, and later 24 clinically interviewed for suicide potential by institutional psychologists and/or 25 psychiatrists prior to their initial intake classification procedures.” (ECF No. 111 26 at 2.) health history and current status, specific concerns, current 27 Despite these regulations, no one administered DOC 2510 during intake. 28 Nurse Bayawa, who was in charge of the intake, admitted he did not complete 4 1 DOC 2510 with Morgan when she was admitted on April 26, 2018, and no one 2 conducted the interview with Morgan prior to her suicide. (ECF Nos. 109-11 at 3 5:24-5:27; 109-12 at 108:08-108:14) Nurse Bayawa further testified that he 4 thought Morgan “was never a mental health problem” because “she qualified for 5 Jean camp which is a mental health 1-1” but that he never looked at Morgan’s 6 chart that day because he had been told it was still at Jean Conservation Camp 7 (JCC) at the time. (ECF No. 109-12 at 36:08-36:11, 48:03-48:11.) 8 Nurse Sastrillo was acting Director of Nursing Services during Morgan’s 9 reincarceration. 2 The correctional nurse in charge of inmate intake reported 10 directly to the DONS. (ECF No. 109-13 at 28:17-28:20.) On April 26, 2018, Nurse 11 Bayawa informed Nurse Sastrillo that a previously escaped inmate (Morgan) was 12 returning to Florence McClure. (Id. at 33:07-33:18.) Nurse Sastrillo failed to 13 supervise medical staff to ensure they completed DOC 2510 per Medical Directive 14 135, and NDOC issued her a written reprimand for neglect of duty. (ECF No. 111- 15 8 at 2.) The written reprimand also stated that had Nurse Sastrillo properly 16 supervised the medical staff, they would have completed DOC 2510, which could 17 have prevented her suicide. (Id.) Nurse Sastrillo admitted that she was 18 “complacent” in supervising the medical staff regarding the intake process and 19 that the intake on April 26 did not comport with Medical Directive 135 or AR 643. 20 (ECF Nos. 109-13 at 65:09-66:04;111-4 at Response Nos. 6; 21.) 21 Nurse Flores was the DONS when Morgan returned to Florence McClure. 22 She was responsible for, among other things, overseeing mental health care at 23 Florence McClure. (ECF No. 111-3 at 51:14-51:18.) Plaintiffs state in their 24 Response to the Motion for Summary Judgment that although Nurse Flores was 25 out of town on April 26, 2018, she was still responsible for ensuring medical staff 26 complied with the applicable regulations. (ECF No. 109 at 8.) They also declare 27 2 28 Even though Nurse Sastrillo was unsure if she was acting DONS at the time, she stated that she is acting DONS whenever Director Flores was on vacation, and Nurse Flores was out of town April 26, 2018. (ECF No. 109-13 at 40:02-40:07.) 5 1 that NDOC investigated Flores for systemic failures surrounding Morgan’s failed 2 intake and issued her a letter of reprimand for neglect of duty. (Id. at 9.) Nurse 3 Flores testified that she had believed an inmate returning to an NDOC facility 4 after having been outside of one for less than 90 days did not require a full intake 5 but that she never conveyed that belief to the medical staff. (ECF No. 111-3 at 6 93:04-93:14.) She admits that, after reviewing the administrative regulations, she 7 realized that they should have done an intake. (Id. at 93:15-93:23.) Nurse Flores 8 further admits that, despite reviewing Morgan’s chart on April 27, 2018, and 9 reviewing notes stating Morgan had previous mental health issues, she took no 10 steps to ensure nurses conducted an intake with Morgan. (Id. at 70:14-71:05.) 11 She stated that she believed it was her fault that the intake process was incorrect. 12 (Id. at 97:15-97:18.) 13 III. LEGAL STANDARD 14 The Federal Rules of Civil Procedure provide for summary adjudication 15 when the pleadings, depositions, answers to interrogatories, and admissions on 16 file, together with the affidavits, if any, show that “there is no genuine dispute as 17 to any material fact and the movant is entitled to judgment as a matter of law.” 18 Fed. R. Civ. P. 56(a). A party asserting or disputing a fact “must support the 19 assertion by … citing to particular parts of materials in the record, including 20 depositions, 21 declarations, stipulations (including those made for purposes of the motion only), 22 admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). 23 Material facts are those that may affect the outcome of the case. See Anderson v. 24 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 25 genuine if there is a sufficient evidentiary basis on which a reasonable fact-finder 26 could rely to find for the nonmoving party. Id. documents, electronically stored information, affidavits or 27 In determining summary judgment, courts apply a burden-shifting 28 analysis. A party seeking summary judgment bears the initial burden of 6 1 demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. 2 Catrett, 477 U.S. 317, 323 (1986). When the nonmovant bears the burden at trial, 3 as is the case here, the movant can meet its burden by either (1) presenting 4 evidence to negate an essential element of the nonparty’s case; or (2) by 5 demonstrating that the non-moving party failed to make a showing sufficient to 6 establish an element essential to that party’s case. See id. at 323-24. After the 7 movant has met its burden, the burden shifts to the nonmovant to come forward 8 with specific facts showing a genuine issue of material fact remains for trial. 9 Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). 10 Although “[o]n summary judgment the inferences to be drawn from the 11 underlying facts…must be viewed in the light most favorable to the party 12 opposing the motion,” id. (quoting United States v. Diebold, Inc., 369 U.S. 654, 13 655 (1962)), the non-movant “must do more than simply show that there is some 14 metaphysical doubt as to the material facts.” Id. at 586-87 (internal citations 15 omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s 16 position will be insufficient.” Anderson, 477 U.S. 242 at 252. In other words, the 17 non-moving party cannot avoid summary judgment by “relying solely on 18 conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 19 1040, 1045 (9th Cir. 1989) (citing Angel v. Seattle-First nat. Bank, 653 F.2d 1293, 20 1299 (9th Cir. 1981)). Instead, to survive summary judgment, the opposition 21 must go beyond the assertions and allegations of the pleadings and set forth 22 specific facts by producing admissible evidence that shows a genuine issue for 23 trial. See Celotex Corp., 477 U.S. 317 at 324. 24 If the moving party presents evidence that would call for judgment as a 25 matter of law at trial if left uncontroverted, then the respondent must show by 26 specific facts the existence of a genuine issue for trial. Anderson, 477 U.S. 242 at 27 250. “If, as to any given material fact, evidence produced by the moving party… 28 conflicts with evidence produced by the nonmoving party . . . we must assume 7 1 the truth of the evidence set forth by the nonmoving party with respect to that 2 material fact.” Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). If 3 reasonable minds could differ on material facts, summary judgment is 4 inappropriate because summary judgment’s purpose is to avoid unnecessary 5 trials only when the material facts are undisputed; if not, the case must proceed 6 to the trier of fact. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995) 7 (citing Lindahl v. Air France, 930 F.2d 1434, 1436 (9th Cir. 1991)). 8 IV. ANALYSIS 9 A. EIGHTH AMENDMENT CLAIMS 10 The Court must determine whether the Nurse Defendants potentially 11 violated the Eighth Amendment. Prison officials violate the Eighth Amendment's 12 cruel and unusual punishments clause when they are “deliberately indifferent” 13 to a prisoner's “serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 102–05 14 (1976). Such a violation “may appear when prison officials deny, delay or 15 intentionally interfere with medical treatment, or it may be shown by the way in 16 which prison officials provide medical care.” Hutchinson v. United States, 838 17 F.2d 390, 394 (9th Cir. 1988) (citing Estelle, 429 U.S. at 105); see also Stewart v. 18 Aranas, 32 F.4th 1192, 1195 (9th Cir. 2022) (requiring a prisoner to demonstrate 19 that any alleged delay in medical care led to further injury). 20 A claim for deliberate indifference to serious medical need can be asserted 21 by a pretrial detainee or a prisoner. Horton by Horton v. City of Santa Maria, 915 22 F.3d 592, 599 (9th Cir. 2019) (discussing standards for deliberate indifference). 23 A pretrial detainee’s claim deliberate indifference is brought as a Due Process 24 violation under the Fourteenth Amendment, while a prisoner’s similar claim is a 25 violation of the Eighth Amendment. Id. As explained in Horton, while the elements 26 of both claims are the same, they differ in the required showing of deliberate 27 indifference. Id. at 602. To demonstrate deliberate indifference, the plaintiff must 28 show two things: (1) “a serious medical need by demonstrating that failure to 8 1 treat a prisoner’s condition could result in further significant injury or the 2 unnecessary and wanton infliction of pain”; and (2) “the defendant’s response to 3 the need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th 4 Cir. 2006) (internal citations and quotations omitted). 5 The Ninth Circuit differentiated these claims in Gordon in 2018 when it 6 held that a pretrial detainee’s Fourteenth Amendment claim for deliberate 7 indifference is analyzed under a “purely objective standard.” Horton, 915 F.3d at 8 602 (citing Gordon v. County of Orange, 888 F.3d 1118, 1125-26 (9th Cir. 2018)). 9 Under Gordon, to prove deliberate indifference a pretrial detainee must show that 10 there was “a substantial risk of serious harm to the plaintiff that could have been 11 eliminated through reasonable and available measures that the officer did not 12 take, thus causing injury that the plaintiff suffered.” Id. (quoting standard from 13 Castro, 833 F.3d at 1068-71, that was adopted in Gordon, 888 F.3d at 1125-26). 14 In contrast, a prisoner’s claim for deliberate indifference under the Eighth 15 Amendment is analyzed under a partially subjective standard that requires a 16 plaintiff to show “an objective risk of harm and a subjective awareness of that 17 harm.” Id. at 600, citing Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), 18 vacated, 563 U.S. 915 (2011), opinion reinstated in relevant part, 658 F.3d 897 19 (9th Cir. 2011) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 20 Because the serious medical need here involved risk of suicide, the Ninth 21 Circuit’s holdings in Conn and Clouthier v. County of Contra Costa, 591 F.3d 1232, 22 1241-43 (9th Cir. 2010) are particularly relevant. See Conn, 591 F.3d at 1105 23 (reversing summary judgment in favor of officers who failed to report risk of 24 detainee’s suicide attempt and threats); Clouthier, 591 F.3d at 1254 (reversing 25 summary judgment in favor of mental health worker who removed suicide 26 prevention measures). Although Conn and Clouthier each concerned pretrial 27 detainees, both cases were decided before Gordon, so the court analyzed the 28 claims under the then-current Eighth Amendment test. Horton, 915 F.3d 592 9 1 (citing Conn, 591 F.3d at 1095)). To show deliberate indifference in Conn, the 2 plaintiff was required to show “an objective risk of harm and a subjective 3 awareness of that harm.” Horton, 915 F.3d 592 (citing Conn, 591 F.3d at 1095)). 4 Because Morgan was a prisoner, the claims here are governed by the Eighth 5 Amendment standard, which is the same standard applied in Conn and Clouthier. 1. SERIOUS MEDICAL NEED 6 7 Plaintiffs have demonstrated “a serious medical need.” The Ninth Circuit 8 has held that “[a] heightened suicide risk or an attempted suicide is a serious 9 medical need.” Conn, 591 F.3d at 1095 (citing, inter alia, Doty v. County of Lassen, 10 37 F.3d 540, 546 (9th Cir. 1994)). “The requirements for mental health care are 11 the same as those for physical health care needs.”). Doty 37 F.3d at 546. While 12 Conn involved Fourteenth Amendment Due Process claims brought on behalf of 13 a pretrial detainee, the “serious medical need” analysis is the same for prisoner 14 Eighth Amendment claims. Id. Here, Defendants agree that a manifest suicide 15 risk is a serious medical need. (ECF No. 84 at 19.) 16 The Court is not persuaded by Defendants’ argument the that the fact 17 Morgan did not commit suicide until April 28 shows she was not suicidal on April 18 26, and thus Morgan did not have a serious medical need. (ECF No. 128 at 7-8.) 19 Lackey informed Inspector Shields that Morgan had hurt herself and attempted 20 suicide in the past and would do so again if she was re-incarcerated, especially 21 given her mother’s role in locating her. (ECF No. 1-2 at ¶¶ 40-42; ¶ 47.) Thus, the 22 Court finds Plaintiffs’ circumstances “satisf[y] the objective component of a 23 serious medical need.” Kamakeeaina v. City & Cty. of Honolulu, No. CIV. 11- 24 00770 JMS, 2014 WL 1691611, at *7 (D. Haw. Apr. 29, 2014), aff'd sub nom. 25 Kamakeeaina v. Maalo, 680 F. App'x 631 (9th Cir. 2017) (finding statements made 26 by plaintiff to the defendants that plaintiff was “ready to commit suicide” were 27 sufficient to show a serious medical need). 28 /// 10 1 2. INDIFFERENCE TO THAT NEED 2 To prove deliberate indifference under the Eighth Amendment, Plaintiffs 3 must meet a “‘subjective deliberate indifference’ standard.” Sandoval v. County of 4 San Diego, 985 F.3d 657, 667 (9th Cir. 2021) (internal citations omitted). This 5 requires Plaintiffs to show that Defendants were “(a) subjectively aware of the 6 serious medical need and (b) failed to adequately respond.” Conn, 591 F.3d 1081 7 at 1096 (internal citations omitted) (emphasis in original). To fulfill the subjective 8 requirement for deliberate indifference, Plaintiffs “must demonstrate that the risk 9 was obvious or provide other circumstantial or direct evidence that the prison 10 officials were aware of the substantial risk to [the defendants’] safety. Lemire, 726 11 F.3d at 1078 (citing Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)). “[A] 12 factfinder may conclude that a prison official knew of a substantial risk from the 13 very fact that the risk was obvious.” Id. (quoting Farmer, 511 U.S. at 842). 14 Plaintiffs must also show “that there was no reasonable justification for exposing 15 the inmates to the risk.” Id. (citing Thomas, 611 F.3d at 1150). “A prison official’s 16 justification for exposing inmates to a substantial risk of harm is reasonable only 17 if it represents a proportionate response to the penological circumstances in light 18 of the severity of the risk to which the inmates are exposed.” Id. at 1079 (citing 19 Thomas, 611 F.3d at 154-55). 20 Supervisors can be held liable under § 1983 through culpable action or 21 inaction. The Ninth Cicruit has recognized that “the supervisor need not be 22 ‘directly and personally involved in the same way as are the individual officers 23 who are on the scene inflicting the constitutional injury.’” Starr v. Baca, 652 F.3d 24 1202, 1205 (9th Cir. 2011) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 25 645 (9th Cir. 1991)). “Rather, the supervisor’s participation could include his 26 ‘own culpable action or inaction in the training, supervision, or control of his 27 subordinates,’ ‘his acquiescence in the constitutional deprivations of which the 28 complaint is made,’ or ‘conduct that showed a reckless or callous indifference to 11 1 the rights of others.’” Id. (quoting Larez, 946 F.2d at 646). 2 Turning to Nurse Bayawa, the issue is whether he failed to adequately 3 respond to Morgan’s known risk of suicide. Nurse Bayawa was responsible for 4 conducting Morgan’s intake. (ECF No. 109-12 at 33:11-33:24.) He admitted that, 5 despite regulations, he never completed DOC 2510 with Morgan and nor reviewed 6 her chart at intake. (Id. at 48:03-48:11; 53:07-53:24; 108:8-108:14.) He instead 7 assumed Morgan “was never a mental health problem” because “she qualified for 8 Jean camp which is a mental health 1-1.” (Id. at 36:08-36:11.) 9 The Court finds Plaintiffs’ allegations sufficient to raise a genuine issue of 10 material fact as to whether Nurse Bayawa failed to adequately respond to 11 Morgan’s known risk of suicide. Plaintiff’s expert, Nurse Kimberly Pearson, found 12 that “[f]ailing to assess for suicidality at Intake is a gross violation of the standard 13 of care and evidence of disregard for Ms. Morgan’s well-being.” (ECF No. 111-10 14 at 14.) A reasonable jury could conclude that not conducting a mental health 15 assessment, in violation of regulations, constitutes deliberate indifference. 16 A reasonable jury could similarly find that Nurses Flores and Sastrillo were 17 deliberately indifferent to Morgan’s serious medical needs. A supervisor can be 18 held liable under the Eighth Amendment for “his ‘own culpable action or inaction 19 in the training, supervision, or control of his subordinates.’” Starr, 652 F.3d at 20 1205 (quoting Larez, 946 F.2d at 646). Here, Nurse Flores was the DONS, and 21 Nurse Sastrillo was the acting DONS on April 26, 2018, the day Morgan was 22 returned to Florence McClure. (ECF No. 109-13 at 40:02-40:07.) The DONS is 23 responsible for overseeing the nurse who conducts inmate intake. (Id. at 28:17- 24 28:20.) Nurse Sastrillo admitted that she was “complacent” in supervising the 25 intake process and that Nurse Bayawa’s failure to conduct a mental health 26 assessment did not comport with Medical Directive 135 or AR 643. (ECF Nos. 27 109-13 at 65:09-66:04; 111-4 at Response Nos. 6; 21.) Nurse Flores testified that 28 she had originally believed an inmate returning to an NDOC facility after having 12 1 been outside of one for less than 90 days did not require a full intake but that 2 she never conveyed that belief to the medical staff. (ECF No. 111-3 at 93:04- 3 93:14.) She admits that, after reviewing the administrative regulations, she 4 realized that they should have done an intake. (Id. at 93:15-93:23.) Nurse Flores 5 further admits that she never took any steps to ensure a nurse conducted a 6 mental health assessment for Morgan even after reviewing Morgan’s chart on 7 April 27, 2018, and reading notes stating Morgan had previous mental health 8 issues. (Id. at 70:14-71:05.) Nurse Flores stated that she believed it was her fault 9 that the intake process did not adhere to proper procedures. (Id. at 97:15-97:18.) 10 Thus, the facts present, at minimum, a genuine dispute over whether Nurses 11 Flores and Sastrillo were deliberately indifferent to Morgan’s heightened suicide 12 risk. 13 Defendants’ argument that they had no knowledge of Morgan’s heightened 14 suicide risk misconstrues the deliberate indifference analysis. The proper inquiry 15 is whether Defendants knew the failure to conduct a mental health assessment 16 “would pose a substantial risk of serious harm to someone in [Morgan’s] 17 situation, not simply whether they were subjectively aware of [Morgan’s] specific 18 medical needs.” Lemire v. Cal. Dep’t of Corr. & Rehab, 726 F.3d 1062, 1078-79 19 (9th Cir. 2013) (citing Gibson v. Cty. of Washoe, 290 F.3d 1175, 1191 (9th Cir. 20 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 21 1076 (9th Cir. 2016)). The Court finds Defendants’ argument unpersuasive 22 because these regulations were designed to protect individuals at risk of suicide. 23 The failure to conduct a mental health assessment in order to identify inmates at 24 a heightened risk of suicide and provide them necessary treatment could lead to 25 many people like Morgan to kill themselves. And the fact that Morgan had just 26 been transferred from JCC may have indicated potential mental health needs, 27 even if the nurses were unaware of her escape and capture. In addition, Nurse 28 Flores testified that she looked at Morgan’s file on April 27, 2018, the day before 13 1 Morgan committed suicide, and read notes from the mental health team about 2 her prior mental health issues. (ECF No. 111-3 at 70:14-71:05.) A reasonable jury 3 could find these facts sufficient to demonstrate the Nurse Defendants’ knowledge 4 of Morgan’s heightened suicide risk. 5 Defendants also argue that they were not deliberately indifferent because 6 they were unaware that NDOC policy required a nurse to immediately conduct a 7 full intake and thus could not have known failure to complete the mental health 8 assessment posed a knowing, substantial risk to Morgan’s safety. (ECF No. 84 at 9 20.) However, a reasonable jury could find that not conducting mental health 10 assessments on returning inmates, even if they were not gone long, was such an 11 obvious risk that they could infer subjective awareness. Defendants also claim 12 their confusion over the intake policy provides a justification to exposing Morgan 13 to the substantial risk of suicide. (Id.) But such a justification is only reasonable 14 “if it represents a proportionate response to the penological circumstances in light 15 of the severity of the risk to which the inmates are exposed.” Lemire, 726 F.3d at 16 1079 (citing Thomas, 611 F.3d a 1154-55). A reasonable jury could find that the 17 nurses’ ignorance of current suicide prevention policies and requirements was 18 not proportional to the ultimate risk of inmates losing their lives. 19 3. CAUSATION 20 The Court next considers whether the alleged deliberate indifference was 21 both an actual and a proximate cause of Plaintiffs’ harm. Castro, 797 F.3d at 667 22 (citing Lemire, 726 F.3d at 1074). This causation analysis applies to both Eighth 23 and Fourteenth Amendment claims. See Gordon, 888 F.3d at 1125 (describing 24 the requirements for a pretrial detainee’s Fourteenth Amendment medical care 25 claim, including a causation requirement); Lemire, 726 F.3d at 1074 (citing Conn, 26 591 F.3d at 1098-01) (explaining that Eighth Amendment deliberate indifference 27 claims require a showing of both actual and proximate cause). “[P]laintiffs who 28 have already demonstrated a triable issue of fact as to whether prison officials 14 1 exposed them to a substantial risk of harm, and who actually suffered precisely 2 [that foreseeable harm], will also typically be able to demonstrate a triable issue 3 of fact as to causation.” Lemire, 726 F.3d at 1080-81 (citing Conn, 591 F.3d at 4 1098-1101; White, 901 F.2d 1501, 1505 (9th Cir. 1990)). Conduct is an actual 5 cause of injury “only if the injury would not have occurred ‘but for’ that conduct.” 6 White, 901 F.2d at 1505 (internal citations omitted). Actual or “but-for” causation 7 is “purely a question of fact.” Robinson v. York, 566 F.3d 817, 825 (9th Cir. 2009). 8 “Once it is established that the defendant's conduct has in fact been one of the 9 causes of the plaintiff's injury, there remains the question whether the defendant 10 should be legally responsible for the injury”—in other words, whether the 11 defendant's actions were a proximate cause. White, 901 F.2d at 1506. While a 12 defendant “‘is not the proximate cause of [the plaintiff]’s alleged injuries if another 13 cause intervenes and supersedes their liability for the subsequent events[,] . . . 14 foreseeable intervening causes . . . will not supersede the defendant's 15 responsibility.’” Conn, 591 F.3d at 1101 (quoting White, 901 F.2d at 1506). “‘If 16 reasonable persons could differ’ on the question of causation then ‘summary 17 judgment is inappropriate and the question should be left to a jury.’” Lemire v. 18 Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1080 (9th Cir. 2013) (quoting White, 19 901 F.2d at 1506). 20 Here, the question of causation should be left to the jury. Conn, 591 F.3d 21 at 1098. As in Conn, the Court is “satisfied . . . that [Plaintiffs] presented sufficient 22 evidence of actual and proximate causation to defeat summary judgment and give 23 rise to a jury question whether [the nurse defendants] caused [Morgan’s] eventual 24 suicide.” Conn, 591 F.3d at 1098. Regarding actual cause, construing all the 25 evidence in the light most favorable to Plaintiffs, the Court finds that a reasonable 26 jury could conclude that the prison could have prevented Morgan’s suicide if the 27 nurses had conducted a mental health assessment at intake. Even NDOC, in 28 Nurse Sastrillo’s letter of reprimand, found that if a nurse had conducted a full 15 1 intake, then they could have prevented Morgan’s suicide. (ECF No. 111-8 at 2.) 2 Defendants argue Plaintiffs cannot prove causation because “even if 3 Morgan was suicidal on April 26, 2018 (which Nurse Defendants maintain she 4 was not, evident in the fact that she did not actually commit suicide until two full 5 days later), Plaintiffs cannot prove that Morgan would not have evaded the 6 questions during the intake process and/or denied any suicide risk.” (ECF No. 7 84 at 19.) But this ignores that suicidal people may wait days or even more to 8 commit suicide and the intake nurse may have identified Morgan as suicidal even 9 if she was evasive or uncooperative. If a person could not be suicidal at least two 10 days prior to them attempting suicide, or if mental health professionals could 11 only identify people with suicidal ideations if the person admitted to being 12 suicidal, then that defeats the purpose of such assessments in the first place. 13 Conn and Clouthier confirm that suicidal ideations can persist for hours, days, 14 and weeks and that mental health assessments, which consider a “variety of 15 variables,” can be effective in preventing suicide. Conn, 591 F.3d at 1089; 16 Clouthier, 591 F.3d at 1237-40. 17 Morgan evidently displayed signs of being suicidal prior to April 28. Officer 18 Eugene White testified that Morgan spoke with Officer Brennan the day before 19 committing suicide, and Officer Brennan told him Morgan “looked real depressed 20 and was telling her like, I can’t do this time.” (ECF No. 109-10 at 71:01-71:02.) 21 Thus, Morgan may have expressed her suicidal ideations or a nurse may have 22 inferred such ideations from her behavior if a nurse conducted a proper intake. 23 Defendants argue that they are not a cause of Morgan’s death because they 24 were never informed of Lackey’s concerns by Officers Currier or Flanigan. (ECF 25 No. 84 at 34.) But a reasonable jury could find both the Nurse Defendants and 26 Officers Currier and Flanigan independently responsible for Morgan’s death. They 27 could conclude that the prison could have prevented Morgan’s suicide if officers 28 had properly conveyed Lackey’s concerns to medical staff or also if medical staff 16 1 had properly conducted a full intake to assess Morgan’s risk of suicide. 2 As for proximate cause, the Court finds that Plaintiff has “presented 3 sufficient evidence of foreseeability that the question of proximate cause must be 4 decided by a jury.” Id. at 1102. A reasonable jury could conclude that Morgan’s 5 suicide was a “foreseeable and normal result” of not conducting a mental health 6 assessment to screen for risk of suicide and other mental health issues. See 7 White, 901 F.2d at 1506. 8 In sum, the Court finds Plaintiffs’ allegations sufficient to show genuine 9 issues of material facts as to whether the nurse defendants were deliberately 10 indifferent to Morgan’s heightened risk of suicide in violation of the Eighth 11 Amendment. 12 B. FOURTEENTH AMENDMENT CLAIMS 13 The Court turns to Plaintiffs’ Fourteenth Amendment claims for 14 impermissible interference with familial association against Nurses Flores, 15 Sastrillo, and Bayawa. “Parents and children may assert Fourteenth Amendment 16 substantive due process claims if they are deprived of their liberty interest in the 17 companionship and society of their child or parent through official conduct.” 18 Lemire, 726 F.3d at 1075 (citing Wilkinson v. Torres, 610 F.3d 546. 554 (9th Cir. 19 2010)). Officers violate the Fourteenth Amendment’s substantive due process 20 protections when their “conduct ‘shocks the conscience.’” Nicholson v. City of Los 21 Angeles, 935 F.3d 685, 692-93 (9th Cir. 2019) (quoting Wilkinson, 610 F.3d at 22 554). The proper analysis turns on whether the officer had time to deliberate prior 23 to the conduct at issue. “Where actual deliberation is practical, then an officer’s 24 deliberate indifference may suffice to shock the conscience.” Tatum v. Moody, 768 25 F.3d 806, 821 (quoting Wilkinson, 610 F.3d at 554). In contrast, if “a law 26 enforcement officer makes a snap judgment because of an escalating situation, 27 his conduct may only be found to shock the conscience if he acts with a purpose 28 to harm unrelated to legitimate law enforcement objectives.” Id. 17 1 The Court finds that summary judgment for the Fourteenth Amendment 2 claim against Nurses Flores, Sastrillo, and Bayawa is inappropriate. As discussed 3 in the Eighth Amendment section, since this Court finds Plaintiffs’ allegations 4 sufficient to raise a genuine issue of material fact concerning whether the nurses 5 acted with deliberate indifference, the Court denies their summary judgment 6 motion. See Lemire, 726 F.3d at 1075 (citing County of Sacramento v. Lewis, 523 7 U.S. 833, 849-50 (1998) (“Just as the deliberate indifference of prison officials to 8 the medical needs of prisoners may support Eighth Amendment liability, such 9 indifference may also ‘rise to the conscience-shocking level’ required for a 10 substantive due process violation.”) 11 Despite Nurse Defendants arguments to the contrary, they can still be held 12 liable for violating the Fourteenth Amendment even if they lacked any personal 13 knowledge of Morgan’s suicide risk. They only needed to know that their actions 14 or inactions “would pose a substantial risk of serious harm to someone in 15 [Morgan’s] situation, not simply whether they were subjectively aware of 16 [Morgan’s] specific medical needs.” Lemire, 726 F.3d at 1077-78 (citing Gibson v. 17 Cty. of Washoe, 290 F.3d 1175, 1191 (9th Cir. 2002), overruled on other grounds 18 by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). Because 19 a reasonable jury could conclude that the nurses were aware that not screening 20 returning inmates for suicide risk could result in inmates committing suicide, the 21 Court finds Defendants’ argument unpersuasive. C. STATE LAW CLAIMS 22 1. Negligent Hiring, Training, and Supervision Claim 23 24 As an initial matter, Plaintiffs conceded Defendants’ argument on negligent 25 hiring, training, and supervision. (ECF No. 109 at 30 n.171.) Thus, the Court will 26 dismiss the negligent hiring, training, and supervision claim against Nurses 27 Flores and Sastrillo. 28 /// 18 1 2. Causation 2 Because this Court finds that a jury must resolve the question of actual 3 and proximate cause, it would be inappropriate to grant Defendants’ requests for 4 summary judgment on the state law claims. In their motions for summary 5 judgment, Defendants argue Plaintiffs cannot prove that their failure to conduct 6 a full intake was the actual or proximate cause of Morgan’s death. (ECF No. 84 7 at 32.) However, as discussed above, a reasonable jury could conclude the nurses’ 8 conduct was both an actual and proximate cause of Morgan’s death. 9 3. Non-Professional Negligence Claims Against Nurses 10 Defendants also argue that Plaintiffs’ negligence claims against the nurse 11 defendants can only be brought as professional negligence claims, and thus the 12 Court must dismiss Plaintiffs’ ordinary negligence, gross negligence, wrongful 13 death, and neglect of a vulnerable person claims. (Id. at 43.) Because the Court 14 agrees with the Defendants, the Court will dismiss these claims. 15 Nevada has specific laws addressing professional negligence. It defines 16 professional negligence as “the failure of a provider of health care, in rendering 17 services, to use the reasonable care, skill, or knowledge ordinarily used under 18 similar circumstances by similarly trained and experienced providers of health 19 care.” NRS 41A.015 (2015). “Providers of health care” includes licensed nurses. 20 NRS 41A.017 (2019). Plaintiffs must include a supporting affidavit from a medical 21 expert when making professional negligence claims and failure to meet this 22 requirement will result in the action being dismissed without prejudice. NRS 23 41A.071 (2022). 24 Courts are empowered to determine if a claim sounds in ordinary or 25 professional negligence. “If the alleged breach involves ‘medical judgment, 26 diagnosis, or treatment,’ it is likely a claim for medical malpractice.” Estate of 27 Curtis v. South Las Vegas Medical Investors, LLC., 466 P.3d 1263, 1267 (Nev. 28 2020) (quoting Szymborski v. Spring Mountain Treatment Center, 403 P.3d 1280, 19 1 1284 (Nev. 2017)). “Thus, ‘if the jury can only evaluate the plaintiff’s claim after 2 presentation of the standards of care by a medical expert, then it is a [professional 3 negligence] claim.’” Id. (quoting Szymborski, 403 P.3d at 642). “If, on the other 4 hand, the reasonableness of the healthcare provider’s actions can be evaluated 5 by jurors on the basis of their common knowledge and experience, then the claim 6 is likely based in ordinary negligence.” Id. (citing Szymborski, 403 P.3d at 642). 7 Because the distinction between professional and ordinary negligence can be 8 subtle, courts look to the “‘gravamen or substantial point or essence’” of each 9 claim to make the necessary determination. Id. (quoting Szymborski, 403 P.3d at 10 642-43). 11 In the narrow set of cases “where the negligence alleged involves a medical 12 diagnosis, judgment, or treatment but the jury is capable of evaluating the 13 reasonableness of the health care provider’s actions using common knowledge 14 and experience,” the court may not require a medical affidavit. Id. at 1267. The 15 exception only applies in “rare situations” where the claim does not raise 16 “questions of medical judgment beyond the realm of common knowledge and 17 experience.” Id. (quoting Bryant v. Oakpointe Village Nursing Ctr., Inc., 684 N.W. 18 2d 864, 871 (Mich. 2004)). 19 Because Plaintiffs concede that their state law claims sound in professional 20 negligence (ECF No. 109 at 42), the question is whether their ordinary negligence- 21 based claims must be dismissed. Plaintiffs argue that “the legal inquiry is not 22 whether other claims become subsumed into a professional negligence claim but 23 whether the affidavit requirement in NRS 41A.071 applies to those claims as 24 well.” (ECF No. 109 at 42.) (emphasis in original). Plaintiffs cite as evidence 25 Schwarts v. Univ. Med. Ctr. of S. Nevada, 460 P.3d 25 (Nev. 2020) 26 (unpublished)(dismissing plaintiffs’ civil conspiracy claim premised on medical 27 malpractice based on failure to file affidavit with the complaint) and Yafchak v. 28 S. Las Vegas Med. Invs., LLC, 138 Nev. Adv. Op. 70, 519 P.3d 37 (2022). Neither 20 1 case is helpful. In Schwarts the relevant claim was dismissed based on failure to 2 file a required affidavit when proving the civil conspiracy claim necessarily 3 required showing professional negligence. Schwarts, 460 P.3d at 25. In Yafchak 4 the question was whether the claims sounded in professional negligence. See; 5 Yafchak, 519 P.3d at 39. The court in Yafchak reversed the district court’s order 6 dismissal of Yafchak’s complaint because it erred “in summarily concluding that 7 LCC met its burden in proving that Yafchak’s allegations sounded in professional 8 negligence” and remanded the case for further proceedings to develop the factual 9 record to clarify if the claims sounded in professional negligence or elder abuse. 10 Yafchak, 519 P.3d at 39-41. 11 When, as here, it is undisputed that the claims sound in professional 12 negligence, it appears that ordinary negligence claims must be dismissed. See 13 Estate of Cronin v. G4 Dental Enterprises, LLC, 526 P.3d 1111 (Nev. App. 2023). 14 In Estate of Cronin, the Nevada Court of Appeals upheld the dismissal of 15 negligence claims that are actually rooted in professional negligence. See 526 16 P.3d at 1111 (“Their judgment at each stage of John's care raises questions 17 beyond what common knowledge and experience provide, so the allegations 18 related to John's treatment arise from medical negligence and were properly 19 dismissed as general negligence claims.”) Here Plaintiffs have failed to show why 20 this Court should allow Plaintiffs to proceed on their ordinary negligence claims 21 when they admit the claims sound in professional negligence. As such, the Court 22 will dismiss all of the negligence claims against the nurses except the professional 23 negligence claims. 24 25 4. Professional Negligence Claim i. Compliance with Statutory Requirements 26 Plaintiffs complied with the requirements for bringing a professional 27 negligence claim involving a death. To establish liability for personal injury or 28 death against medical professionals, Plaintiffs must include evidence from expert 21 1 medical testimony, material from recognized medical texts, treaties, or 2 regulations from the facility where the alleged negligence occurred to show both 3 “the alleged deviation from the accepted standard of care in the specific 4 circumstances of the case and to prove causation of the alleged personal injury 5 or death[.]” NRS 41A.100(1). Defendants allege that Nurse Pearson failed to state 6 that “the Nurse Defendants’ alleged deviation from the standard of care was the 7 proximate cause of Morgan’s death.” (ECF No. 84 at 48.) (emphasis in original) 8 They claim Nurse Pearson’s testimony did not rise to the necessary “reasonable 9 degree of medical probability” standard for causation. Morsicato v. Sav-On Drug 10 Stores, Inc., 121 Nev. 153, 158 (Nev. 2005). 11 The Court rejects Defendants’ argument because Nurse Pearson’s report 12 and affidavit substantiate the claim of causation based on professional negligence 13 by Nurse Defendants. In Morsicato, both parties agreed that the doctor’s 14 testimony was not made to a reasonable degree of medical probability. Id. at 157. 15 The doctor originally testified that an autoimmune response was “the most likely 16 cause of the injury” and later stated, after the court told him that his testimony 17 would be stricken, that “more likely than not an autoimmune response was the 18 most likely cause of the injuries.” Id. at 158-59. However, in the present case, 19 Nurse Pearson clarified that all of the opinions in her report were “based upon a 20 reasonable degree of nursing certainty.” (ECF No. 111-10 at 21.) 21 Nurse Pearson detailed the system and staff failures that caused Morgan’s 22 death. Nurse Pearson’s report detailed the violations of the standard of care (Id. 23 at 12-20), which were also detained in her affidavit (ECF No. 111-13 at 2-4). The 24 identified violations of the standard of care by Defendants denied Morgan 25 adequate and appropriate care that, according to Nurse Pearson, could have 26 prevented “her unnecessary death.” (ECF No. 111-13 at 2.) Those failures 27 included the failure on the part of Intake Nurse Brigido Bayawa, Nursing 28 Supervisor Sastrillo, and Director of Nursing Flores (1) “to follow and implement 22 1 established policies set forth to identify patient healthcare needs and risks 2 (Receiving Screening policy)”; (2) “to supervise and train staff (intake nursing staff 3 not following policy nor conducting appropriate Receiving Screenings)” (3) “to 4 provide and have necessary emergency equipment available”; and (4) “to protect 5 Ms. Morgan, in that no suicide risk assessment nor associated precautions were 6 completed.” (Id. at 2-3.) Nurse Pearson concluded that “system failure and staff 7 failures resulted in Ms. Morgan having no opportunity to answer questions about 8 her medical and mental health history or be evaluated by licensed healthcare 9 professionals (medical nor mental health) upon her return to FMWCC after her 10 escape.” (ECF No. 111-10 at 20-21.) And these failures led to her suicide “[l]ess 11 than 40 hours after arrival back at FMWCC.” (Id. at 21.) Nurse Pearson’s 12 statement that the standard of care Defendants violated was necessary to 13 “prevent her unnecessary death,” along with her other statements, are sufficient 14 to meet NRS 41A.100(1)’s requirements. This comports with other District of 15 Nevada decisions which caution against granting summary judgment because 16 the doctor’s testimony did not include specific language. See Guerrero v. Wharton, 17 No. 2:16-cv-01667, 2019 WL 13211006, at *2 (D. Nev. March 26, 2019). 18 ii. Discretionary Act Immunity 19 Defendants further argue that the Nurse Defendants are entitled to 20 discretionary act immunity. Under Nevada law, no action may be brought against 21 a State employee or officer “[b]ased upon the exercise or performance or the 22 failure to exercise or perform a discretionary function or duty…whether or not 23 the discretion involved is abused.” NRS 41.032(2). The Nevada Supreme Court 24 adopted the Berkovitz-Gaubert test for determining whether an act is 25 discretionary. Armstrong v. Reynolds, 22 F.4th 1058, 1082 (9th Cir. 2022) (citing 26 Martinez v. Maruszczak, 168 P.3d 720, 729 (2007)). For a court to find an act 27 discretionary, “a decision must (1) involve an element of individual judgment or 28 choice and (2) be based on considerations of social, economic, or political policy.” 23 1 Id. (quoting Martinez, 168 P.3d at 728). “[I]f the injury-producing conduct is an 2 integral part of governmental policy-making or planning, if the imposition of 3 liability might jeopardize the quality of the government process, or if the 4 legislative or executive branch’s power or responsibility would be usurped, 5 immunity will likely attach under the second criterion.” Martinez, 168 P.3d at 729 6 (citing Horta v. Sullivan, 4 F.3d 2, 19 (1st Cir. 1993)). 7 While Nurse Bayawa’s failure to conduct a mental health assessment and 8 Nurses Flores’ and Sastrillo’s failure to ensure compliance with mental health 9 screening regulations fulfill the first half of this test (involving an element of 10 individual judgment or choice), they do not meet the second requirement that 11 they involve matters of policy. Defendants argue that Nurse Bayawa’s failure to 12 act “involved governmental policy-making regarding the processing and intake of 13 inmates at NDOC facilities.” (ECF No. 84 at 50.) Defendants argue that Nurses 14 Flores’ and Sastrillo’s failures “involved an analysis of governmental policy 15 concerns in regard to inmate processing and inmate health and safety under the 16 circumstances[.]” (ECF No. 84 at 50.) Defendants fail to explain how the nurses’ 17 decisions implicate these alleged policy concerns, particularly when they involved 18 choices to not follow state policies and regulations or fulfill their responsibility to 19 ensure medical staff followed those requirements. Furthermore, the Supreme 20 Court of Nevada explicitly rejected the idea that “diagnostic and treatment 21 decisions” are entitled to discretionary act immunity because they do not include 22 policy considerations. Martinez, 168 P.3d at 726. The Nevada Supreme Court 23 warned that to find otherwise “would unacceptably leave a large number of clients 24 and patients with no form of recourse against individuals who fail to act according 25 to the reasonable standards of their profession.” Id. at 730. Thus, the Court will 26 deny Defendants discretionary act immunity. 27 /// 28 /// 24 iii. Statute of Limitations 1 2 Defendants move for summary judgment on Plaintiffs’ state law claims 3 because they are time-barred. Under Nevada state law, “an action for injury or 4 death against a provider of health care may not be commenced more than 3 years 5 after the date of injury or 1 year after the plaintiff discovers or through the use of 6 reasonable diligence should have discovered the injury, whichever occurs first.” 7 NS 41A.097(2). A plaintiff “discovers his legal injury when he knows or, through 8 the use of reasonable diligence, should have known of facts that would put a 9 reasonable person on inquiry notice of his cause of action.” Massey v. Litton, 669 10 P.2d 248, 252 (1983). “A person is put on ‘inquiry notice’ when he or she should 11 have known of facts that ‘would lead an ordinarily prudent person to investigate 12 the matter further.’” Winn v. Sunrise Hosp. & Medical Center, 277 P.3d 458, 462 13 (Nev. 2012) (quoting Black’s Law Dictionary 1165 (9th ed. 2009)). “[T]he 14 appropriate accrual date for the statute of limitations is a question of law only if 15 the facts are uncontroverted.” Id. (quoting Day v. Zubel, 922 P.2d 536, 539 (Nev. 16 1996)). 17 Parties dispute when Plaintiffs discovered or should have discovered the 18 injury. Both parties agree that the date of the injury is when Morgan died, which 19 was April 28, 2018, so under the three-year standard, the statute of limitations 20 expired on April 28, 2021. (ECF Nos. 84 at 45; 109 at 36-37.) Defendants argue 21 that Plaintiffs discovered the injury (Morgan’s death) the same day that she died 22 because “she blamed NDOC almost immediately for Morgan’s death” and first 23 retained legal counsel in May of 2018. (ECF No. 84 at 45.) Defendants cite to an 24 unpublished Nevada Supreme Court case, Valley Health Sys., LLC v. Eighth Jud. 25 Dis. Ct., 497 P.3d 278 (Table) (Nev. 2021) (unpublished disposition) to support 26 their argument that the one-year accrual period should apply “[b]ecause the 27 evidence is irrefutable.” (ECF No. 128 at 31.) Defendants also cite as evidence for 28 Plaintiffs being on inquiry notice (1) text messages between Lackey and 25 1 Investigator Shields the day after Morgan’s death where Lackey states that she 2 knew Morgan was not placed on suicide watch and (2) a phone call where 3 Inspector Shields told Lackey he had told corrections to inform the medical unit 4 to place Morgan on suicide watch. (ECF Nos. 128-11 at 2-4; 128-12.) Plaintiffs 5 counter that the facts of Valley Health Sys., LLC are inapplicable to the present 6 case because they did not discover the Nurse Defendants failure to give Morgan 7 a full intake until Defendants’ disclosures on April 6, 2021. (ECF No. 109 at 36- 8 38.) Thus, Plaintiffs claim that the one-year accrual period ended April 6, 2022 9 (one year after the disclosure of Defendant Nurses) and thus their claims were 10 not barred until the end of the three-year accrual period on April 28, 2021. (Id. 11 at 35-38.) 12 The Court finds Plaintiffs’ claim is not time-barred. Plaintiffs filed their 13 original complaint, which did not include Nurse Defendants, on April 28, 2020. 14 (Id. at 36.) They discovered the Nurse Defendants’ involvement only after 15 Defendants’ disclosure on April 6, 2021 and then filed claims against the Nurse 16 Defendants that same month, on April 26, 2021. 3 (Id.) Thus, Plaintiffs would have 17 had no reason to investigate possible claims against the Medical Defendants 18 specifically (inquiry notice) until after the disclosure alerted them to the improper 19 intake. And, as Plaintiffs point out, they would not have been able to file any 20 professional negligence claims against the Nurse Defendants prior to this 21 “because the required expert affidavit would have been completely hypothetical.” 22 (ECF No. 109 at 38.) 23 The Nevada Supreme Court’s decision in Valley Health System, LLC does 24 not apply here. As an initial matter, unpublished Nevada Supreme Court 25 decisions issued after January 1, 2016, only have persuasive value. Nev. R. App. 26 P. 36(c)(3). In Valley Health System, LLC, the Nevada Supreme Court held that a 27 28 3 While Plaintiffs state that they filed the Amended Complaint on August 26, 2021, the document is dated August 27, 2021. (ECF No. 1-2 at 22.) 26 1 professional negligence was time barred because the real parties in interest were 2 at the latest on inquiry notice on the date that they filed a complaint with the 3 State Board of Nursing alleging the health care providers did not appropriately 4 monitor and care for the decedent, causing her death. Valley Health Sys., LLC, 5 497 P.3d at 278. The court in Valley Health System, LLC was able to identify an 6 accrual date as a matter of law because the date was “uncontroverted;” the fact 7 the plaintiffs were able to make a professional complaint clearly demonstrated 8 they were on inquiry notice to investigate further. Winn, 277 P.3d at 462 (quoting 9 Day, 922 P.2d at 539). In the present case, Plaintiffs had no reason to believe 10 they should investigate the Nurse Defendants’ actions until they received 11 Defendants’ disclosure indicating the Nurse Defendants did not conduct a full 12 intake. Thus, the Nevada Supreme Court’s decision in Valley Health System, LLC 13 does not control this Court’s holding. 14 Since the Court concludes that the statute of limitations expired on April 15 28, 2021, Plaintiffs’ professional negligence claim is not time-barred. Plaintiffs 16 filed their Amended Complaint on April 26, 2021, and thus their filing was timely. 17 (ECF No. 109 at 36.) 18 D. QUALIFIED IMMUNITY 19 Having found Plaintiffs raised a genuine issue of material fact as to whether 20 Nurses Bayawa, Flanigan, and Sastrillo violated state law and the Eighth and 21 Fourteenth Amendments, the Court must now determine whether qualified 22 immunity applies. Qualified immunity shields certain government officials from 23 liability 24 constitutional rights of which a reasonable person would have known.” Hope v. 25 Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 26 (1982)). The point of shielding officials from liability except when they violate 27 “clearly established” rights is to “ensure that before they are subjected to suit, 28 officers are on notice their conduct is unlawful.” Id. (quoting Saucier v. Katz, 533 unless their conduct violates 27 “clearly established statutory or 1 U.S. 194, 206 (2001)). Nonetheless, officials who violate statutory or 2 constitutional rights knowingly or through plain incompetence are not shielded 3 from liability. Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft v. 4 al-Kidd, 563 U.S. 731, 743 (2011)). Thus, if “every ‘reasonable official would have 5 understood that what he is doing violates that right,’” then the right is clearly 6 established, and qualified immunity does not provide a defense. See al-Kidd, 563 7 U.S. at 741. For a constitutional or statutory right to be clearly established, there 8 does not need to be a factually indistinguishable case spelling out liability, but 9 existing precedent “must have placed the statutory or constitutional question 10 beyond debate.” Id. The Ninth Circuit has held that “[i]t is clearly established that 11 the Eighth Amendment protects against deliberate indifference to a detainee's 12 serious risk of suicide.” Conn, 591 F.3d at 1102 (citing Cabrales v. Cty. of Los 13 Angeles, 864 F.2d 1454 (9th Cir. 1988), cert. granted and judgment vacated, 490 14 U.S. 1087 (1989); Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003); Colburn 15 v. Upper Darby Tp., 946 F.2d 1017, 1023 (3d Cir. 1991)). 16 The parties dispute the proper characterization of the right at issue in this 17 case. Defendants claim the case concerns the right to suicide screening or 18 prevention protocols and cite to Taylor v. Barkes, 575 U.S. 822, 826 (2015)), in 19 which the Supreme Court stated that none of its decisions have established “a 20 right to the proper implementation of adequate suicide prevention protocols.” 21 (ECF No. 84 at 24.) Plaintiffs instead characterize the right as the right to 22 adequate medical care, and specifically mental health care. (ECF No. 109 at 28.) 23 The Court agrees with Plaintiffs that the right at issue should be framed as 24 the right to adequate mental health care, which is clearly established. See, Doty, 25 37 F.3d 540, 546 (addressing the right to constitutionally adequate mental health 26 care for prisoners and holding “the requirements for mental health care are the 27 same as those for physical health care needs”); see also Williams v. County, No. 28 2:15-CV-01760-SU, 2016 WL 4745179, at *5 (D. Or. Sept. 12, 2016) (collecting 28 1 cases, including Conn and Clouthier) (“Defendants [sic] reliance on Taylor is 2 misplaced…As of 2013, the Ninth Circuit has repeatedly held that pretrial 3 detainees 4 have a ‘clearly established right’ to mental health treatment, including 4 suicide prevention, while in custody.”) While those cases refer to pretrial 5 detainees, the Court finds the right clearly established for prisoners too. Though 6 Defendants argue that the right must be specific for convicted and recaptured 7 inmates (ECF No. 128 at 16 n.5.) they fail to support this point citing only to 8 Kinglsey v. Hendrickson, 576 U.S. 389 (2015) which they admit is about whether 9 “there exists a single ‘deliberate indifference’ standard applicable to all § 1983 10 claims, whether brought by pretrial detainees or by convicted prisoners[,]” not 11 whether a right is clearly established for purposes of qualified immunity. Because 12 the Ninth Circuit has recognized that suicide risk is a serious medical need, the 13 Eighth Amendment protects against deliberate indifference to suicide risk. See 14 Conn, 591 F.3d 1081 at 1095. While the Ninth Circuit has differentiated the 15 deliberate indifferent standard applied to pretrial detainee and prisoner claims, 16 foundational to both claims is the “clearly established” right to mental health 17 treatment, including suicide prevention, while in custody. See Williams, 2016 WL 18 4745179, at *5. 19 Defendants failure to conduct a mental health assessment or ensure 20 nurses under their supervision conducted a mental health assessment clearly 21 violates the right to adequate mental health care. The prison cannot provide 22 adequate mental health care without properly screening prisoners for suicidal 23 ideation and other mental health issues. Accepting all of Plaintiffs’ allegations as 24 true, Defendants violated a clearly established constitutional right as to adequate 25 4 26 27 28 While the cases refer to pretrial detainees, the Court finds the right clearly established for prisoners too. In their reply brief, Defendants argue that the right must be specific for convicted and recaptured inmates, as opposed to pre-trial detainees. (ECF No. 128 at 16 n.5.) However, they only cite to Kinglsey v. Hendrickson, 576 U.S. 389 (2015) which they admit is about whether “there exists a single ‘deliberate indifference’ standard applicable to all § 1983 claims, whether brought by pretrial detainees or by convicted prisoners[,]” not whether a right is clearly established for purposes of qualified immunity. 29 1 mental health care and thus the Court denies qualified immunity as to all of the 2 Medical Defendants. 3 IV. CONCLUSION 4 5 It is therefore ordered that Nurse Defendants’ Motion for Summary Judgment (ECF No. 84) is granted in part and denied in part. 6 It is further ordered that the following claims are dismissed: (1) Negligence; 7 (2) Wrongful Death; (3) Gross Negligence; (4) Neglect of Vulnerable Person; (5) 8 Negligent Hiring, Training and Supervision. 9 It is further ordered that summary judgment for all other claims is denied. 10 11 DATED THIS 29th day of September 2023. 12 13 14 15 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 30
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