NeSmith v. County of San Diego et al, No. 3:2015cv00629 - Document 25 (S.D. Cal. 2016)

Court Description: ORDER denying 20 Motion to Dismiss Second Amended Complaint and to Strike Parts of the Second Amended Complaint. Signed by Judge Janis L. Sammartino on 9/12/2016. (kcm)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 CHASSIDY NeSMITH, individually and as Guardian ad Litem on behalf of SKYLER KRISTOPHER SCOTT NeSMITH, and as Successor in Interest to Kristopher SCOTT NeSMITH, 17 18 ORDER DENYING MOTION TO DISMISS SECOND AMENDED COMPLAINT AND TO STRIKE PARTS OF THE SECOND AMENDED COMPLAINT Plaintiff, 15 16 Case No.: 15-cv-0629-JLS (JMA) v. (ECF No. 25) COUNTY OF SAN DIEGO; WILLIAM D. GORE, individually; and DOES 1 – 100, inclusive, Defendant. 19 20 21 Presently before the Court is defendant County of San Diego (Defendant)1 and 22 William D. Gore’s Motion to Dismiss Second Amended Complaint and to Strike Parts of 23 the Second Amended Complaint (MTD). (ECF No. 20.) Also before the Court is 24 Plaintiffs’ Opposition to Defendant’s Motion to Dismiss Second Amended Complaint, 25 26 1 27 28 Although their SAC lists Sheriff Gore as a defendant, plaintiffs Chassidy NeSmith and Skyler Kristopher Scott NeSmith (Plaintiffs) make clear that they no longer seek relief against him. (Opp’n, ECF No. 22, at 15 n.6.) Accordingly, the County is the lone moving defendant, and the Court refers to it as both Defendant and the County. The clerk shall terminate Sheriff Gore from the docket in this matter. 1 15-cv-0629-JLS (JMA) 1 (ECF No. 22), and Defendant’s Reply in Support of Motion to Dismiss and Strike Parts of 2 Complaint, (ECF No. 23). The Court vacated the hearing on the MTD and took this matter 3 under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). 4 5 6 Having considered the parties’ arguments and the law, the Court DENIES Defendant’s Motion to Dismiss. BACKGROUND 7 Kristopher Scott NeSmith (Kris) was arrested on November 29, 2013, on suspicion 8 of domestic violence. (Second Am. Compl. (SAC), ECF No. 20, at ¶¶ 32–33.) Several 9 months later, while housed at Vista Detention Facility (VDF) and awaiting trial on a slew 10 of charges, Kris committed suicide. (Id. at ¶¶ 3–5.) 11 Kris was deeply troubled in his final months. 12 Kris joined the Marines in May 2010, after graduating high school, and became a 13 rifleman. (Id. at ¶ 20.) He began to struggle with Post Traumatic Stress Disorder (PTSD) 14 and other undiagnosed psychiatric problems, including borderline personality and 15 antisocial behavior. (Id. at ¶ 1.) Kris’s mental health took a turn for the worst in April 16 2013 after he was nearly shot in the head during a military training exercise at Camp 17 Pendleton. (Id.) Kris then began hearing voices in his head and seeing visions of deceased 18 individuals, including his aunt, grandmother, and military comrades. (Id.) 19 A week after the training incident, Kris took leave to celebrate his 21st birthday. (Id. 20 at ¶ 22.) While on leave, Kris decided not to return to the military, running away to Las 21 Vegas to marry his then-girlfriend Chassidy Carlton, now Chassidy NeSmith. (Id.) Kris’s 22 mental health problems did not subside. A month after marrying Chassidy, the couple got 23 into an argument. (Id. at ¶ 23.) When Chassidy left the room, Kris attempted to hang 24 himself using a dog leash. (Id.) Chassidy interceded and thwarted Kris’s suicide attempt. 25 (Id.) Two days later, Kris called the San Diego County Sheriff’s Department to report 26 domestic violence, although no physical violence occurred. (Id.) Knowing that he would 27 be returned back to Camp Pendleton, Kris again attempted suicide, but Sheriff’s deputies 28 intervened then returned him to military custody. (Id. at ¶¶ 22–23.) 2 15-cv-0629-JLS (JMA) 1 A few weeks later, the couple got into another fight, this time while on base at Camp 2 Pendleton. (Id. at ¶ 25.) Chassidy attempted to leave the base to de-escalate the situation, 3 but needed assistance starting her car, so she enlisted the help of a nearby Regiment Officer. 4 (Id.) When Kris realized the Regiment Officer was assisting Chassidy to leave the base, 5 Kris attacked the Officer. (Id.) Soon after, Kris called Chassidy threatening to kill himself 6 if she did not return. (Id.) Taking his threat seriously, Chassidy returned to the military 7 base. (Id.) This pattern repeated itself for months. When Kris faced difficult situations, 8 whether the result of arguments with Chassidy or military disciplinary actions, Kris would 9 attempt or threaten suicide. (Id. at ¶ 26.) He was held in a jail brig on the military base, 10 where he spent 102 days in solitary confinement and attempted suicide three more times. 11 (Id.) 12 Things did not improve after Kris was released from the brig. He drank heavily and 13 continued hearing voices and hallucinating. (Id. at ¶ 28.) Soon after his release, Kris turned 14 the violence he had directed mostly toward himself outward. The day before Thanksgiving 15 in 2013, again following an argument with Chassidy, Kris went for a walk, during which 16 he beat and choked a stranger, causing injuries to the stranger’s jaw, cheek, and left thigh. 17 (Id. at ¶ 30.) When Kris returned to his mother-in-law’s apartment, where he and Chassidy 18 were staying at the time, he acted as though nothing had happened. (Id.) 19 The next day—Thanksgiving Day—Kris went for another walk. Again he attacked 20 a stranger, this time stabbing the victim multiple times with a Bowie knife, causing life- 21 threatening injuries. (Id. at ¶ 31.) Kris again returned to his mother-in-law’s apartment 22 and acted as though nothing had happened. (Id.) 23 Kris’s erratic behavior continued the next day, however. He began calling Chassidy 24 “Jennifer,” a character who was a figment of his imagination, and chased her around a 25 restaurant parking lot. (Id. at ¶ 32.) Kris eventually caught Chassidy and began to choke 26 her. (Id.) Chassidy was able to break free and called her mom, Candy, who arrived minutes 27 later. (Id.) Candy managed to stop Kris, and when Kris “came-to,” he asked his mother- 28 in-law why no one had told him that Jennifer was actually Chassidy; Kris simply told 3 15-cv-0629-JLS (JMA) 1 Candy that he was trying to “release Chassidy’s demon.” (Id.) Sheriff’s deputies arrived 2 shortly thereafter, and quickly linked Kris to the attacks on the two strangers. (Id. at ¶ 33.) 3 Kris was arraigned on December 3, 2013, and learned the District Attorney would 4 seek a life sentence. (Id. at ¶ 34.) The judge set Kris’s bail at $2 million. (Id.) Kris asked 5 his father, Scott NeSmith, to post his bail, and threatened to take his own life if he had to 6 remain in custody. (Id.) His father desperately attempted to inform any officials with 7 whom he had spoken at the arraignment that Kris was a suicide risk, calling an investigator 8 at the District Attorney’s Office, the lead detective and other detectives on Kris’s case, a 9 supervisor and other attorneys with the Office of Public Defenders, and a deputy District 10 Attorney. (Id. at ¶ 35.) 11 Kris’s preliminary hearing began on February 26, 2014, and lasted two days. (Id. at 12 ¶ 37.) Kris heard the testimony against him, both from his victims’ families and his mother- 13 in-law. (Id.) 14 In the evening after the preliminary hearing, Sheriff’s deputies were performing 15 security checks. According to an inmate in a nearby cell, a deputy saw a braided sheet tied 16 around a light fixture in Kris’s cell, and said something to the effect of, “Nesmith, what are 17 you trying to do? Kill Yourself? Take that thing down.” (Id. at ¶ 38.) According to the 18 inmate, the deputy then walked away without taking any further action. (Id.) 19 Hours after the alleged interaction, Kris was found dead. (Id. at ¶ 39.) He had 20 hanged himself, but the sheet had torn, so VDF personnel discovered Kris on the floor of 21 his cell. (Id.) 22 Plaintiffs allege that Defendant had ample notice of Kris’s suicide risk, including 23 notice from Kris’s records from the brig, direct communications from Kris’s father warning 24 of this danger, and the deputy witnessing the noose in Kris’s cell. (Id. at ¶¶ 40–42.) 25 Further, according to Kris’s father, Scott, a deputy responsible for monitoring inmate phone 26 calls contacted him and said that when Kris spoke with Chassidy, “Kris always told 27 Chassidy he was going to kill himself.” (Id. at ¶ 43.) 28 /// 4 15-cv-0629-JLS (JMA) 1 Kris was housed in a cell by himself at the time of his suicide. At other times, 2 however, he had a cellmate. (Id. at ¶ 45.) According to Plaintiffs’ SAC, one cellmate states 3 that Kris repeatedly sought psychiatric help. (Id.) However, Plaintiffs allege, there were 4 no mental health professionals staffed at VDF on a permanent basis. (Id.) Instead, VDF 5 provided mental health professionals on a “floating” basis. (Id.) Plaintiffs contend that 6 where mental health services were provided at VDF: 7 8 9 10 11 12 These psychiatrists are not available 24/7, they don’t even have offices at the jail. If inmates need mental health treatment, they request a visit and will eventually be “seen” by the psychiatrist. The psychiatrist will often show up for the inmate’s evaluation at the flap of the module door. In order to be “evaluated” by the psychiatrist, the inmate must kneel down and “confide” in the psychiatrist while the deputies and other inmates are in immediate earshot. During the inmate’s “evaluation,” the deputies often interrupt the inmate when he expresses feelings of depression or mistreatment. 13 (Id.) Plaintiffs allege this amounts to “inadequate and non-meaningful mental health 14 treatment.” (Id.) Plaintiffs further allege that the County never monitored or evaluated 15 Kris or took measures to protect Kris from himself given his suicidal proclivity. (See id.) 16 Plaintiffs suggest that placing Kris in a general population cell and passively monitoring 17 him amounted to deliberate indifference to Kris’s serious medical needs, and that Kris’s 18 story was representative of a larger pattern of inadequate responsiveness to suicidal 19 ideations by inmates. (Id. at ¶¶ 45–48, 72–73.) 20 Plaintiffs filed their original Complaint on March 20, 2015, and an Amended 21 Complaint on May 20, 2015. On January 27, 2016, the Court granted in part and denied in 22 part the County and Sheriff Gore’s Motion to Dismiss Amended Complaint (FAC Order). 23 (ECF No. 18.) In particular, the Court granted their motion and dismissed all claims against 24 Sheriff Gore and dismissed the municipal civil rights claims against the County, but denied 25 their Motion with respect to Plaintiffs’ cause of action for wrongful death. (Id.) On 26 February 9, 2016, Plaintiffs filed the SAC listing seven causes of action: (1) a 42 U.S.C. § 27 1983 claim against Doe defendants for violating the Fourteenth Amendment based on 28 deliberate indifference to a serious medical need; (2) a § 1983 claim against the County of 5 15-cv-0629-JLS (JMA) 1 San Diego for violating the Fourteenth Amendment with its suicide prevention policy; (3) 2 a § 1983 claim against the County of San Diego for violating the Fourteenth Amendment 3 with its psychiatric evaluation policy; (4) a § 1983 claim against the County of San Diego 4 for violating the Fourteenth Amendment by failing to properly train VDF and County staff; 5 (5) a negligence claim against Doe defendants; (6) a medical malpractice claim against 6 Doe defendants; and (7) a wrongful death claim against all defendants—the County of San 7 Diego and Doe defendants. (Id. at ¶¶ 49–147.) 8 9 10 Defendant moves to dismiss Plaintiffs’ Second, Third, Fourth, and Seventh causes of action, or all claims brought against the County. (MTD at 14.) LEGAL STANDARD 11 Pursuant to Federal Rule of Civil Procedure 12(b)(6), courts must dismiss 12 complaints that “fail[] to state claim upon which relief can be granted.” The Court 13 evaluates whether a complaint supports a cognizable legal theory and states sufficient facts 14 in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement 15 of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not 16 require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the- 17 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 18 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a 19 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 20 than labels and conclusions, and a formulaic recitation of a cause of action’s elements will 21 not do.” Twombly, 550 U.S. at 555 (alteration in original). “Nor does a complaint suffice 22 if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. 23 at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557). 24 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 25 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 26 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 27 when the facts pleaded “allow[] the court to draw the reasonable inference that the 28 defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 6 15-cv-0629-JLS (JMA) 1 That is not to say that the claim must be probable, but there must be “more than a sheer 2 possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). 3 “[F]acts that are ‘merely consistent with’ a defendant’s liability” fall short of a plausible 4 entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not 5 accept as true “legal conclusions” contained in the complaint. Id. at 678–79 (citing 6 Twombly, 550 U.S. at 555). This review requires “context-specific” analysis involving the 7 Court’s “judicial experience and common sense.” Id. at 679. “[W]here the well-pleaded 8 facts do not permit the court to infer more than the mere possibility of misconduct, the 9 complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” 10 Id. (quoting Fed. R. Civ. P. 8(a)(2)). 11 In considering whether a complaint is sufficient to state a claim for relief, the court 12 takes all material allegations as true and construes them in the light most favorable to the 13 non-moving party. Brodsky v. Yahoo! Inc., 630 F.Supp.2d 1104, 1111 (N.D. Cal. 2009). 14 When the complaint refers to documents attached thereto, they may be incorporated into 15 the complaint by reference. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (“The 16 court may treat . . . a document [incorporated by reference] as ‘part of the complaint, and 17 thus may assume that its contents are true for purposes of a motion to dismiss under Rule 18 12(b)(6).’”) (citing United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)); see also 19 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“[A] court may consider 20 material which is properly submitted as part of the complaint on a motion to dismiss 21 without converting the motion to dismiss into a motion for summary judgment.”) (citing 22 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (internal quotation marks omitted)). 23 24 ANALYSIS I. Plaintiff’s Municipal Civil Rights Claims 25 Defendant moves for dismissal of Plaintiffs’ Second, Third, and Fourth Claims, 26 which seek to hold the County liable under § 1983 for violating the Fourteenth 27 Amendment. The Court dismissed these claims—although they were then styled as claims 28 /// 7 15-cv-0629-JLS (JMA) 1 for violation of the Eighth Amendment rather than the Fourteenth Amendment—without 2 prejudice in its FAC Order. 3 To hold a government entity defendant liable under § 1983, a Plaintiff must show, 4 as with individual defendants, that the government entity violated statutorily or 5 constitutionally protected rights under color of state law. Monell v. Dep’t of Soc. Servs. of 6 N.Y., 436 U.S. 658, 690 (1978). The government entity may not be held vicariously liable 7 for the actions of its employees, but instead is liable only for actions that may be attributed 8 to the government entity itself. Connick v. Thompson, 563 U.S. 51, 60 (2011). Obviously, 9 government entities can only act through individuals. To attribute actions of individuals 10 to the government entity itself without imposing vicarious liability, the individual’s actions 11 must be performed “pursuant to official municipal policy” or according to “practices so 12 persistent and widespread as to practically have the force of law.” Id. at 61; Long v. Cnty 13 of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (“[I]t is only when execution of a 14 government’s policy or custom inflicts the injury that the municipality as an entity is 15 responsible”). 16 Relying on Taylor v. Barkes, 135 S. Ct. 2042 (2015), Defendant argues that 17 there is no constitutional right to any particular suicide screening or prevention protocols, 18 and the County therefore cannot be held liable for maintaining a policy violating a non- 19 existent right. (Id.) The Taylor Court highlighted the difference between holding officials 20 liable for acting with reckless indifference to a known vulnerability to suicide, on the one 21 hand, and systematic implementation of suicide prevention policies, on the other. 135 S. 22 Ct. at 2045. While the Constitution does not outline a detailed suicide prevention policy 23 that government entities must implement, the Eighth and Fourteenth Amendments 24 nonetheless require custodians of inmates to provide adequate mental health care. Doty v. 25 Cnty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). A defendant is liable under § 1983 for 26 violating that right if the defendant was deliberately indifferent to the incarcerated 27 individual’s serious medical or mental health care need. See id.; Jett v. Penner, 439 F.3d 28 1091, 1096 (9th Cir. 2006). 8 15-cv-0629-JLS (JMA) 1 To hold the County liable, Plaintiffs must show (1) that a County employee violated 2 Kris’s constitutional rights, (2) “that the [C]ounty has customs or policies that amount to 3 deliberate indifference,” and (3) “that these customs or policies were the moving force 4 behind the employee’s violation of constitutional rights.” Long, 442 F.3d at 1186. 5 In its FAC Order, the Court concluded Plaintiffs failed to adequately plead a pattern 6 of constitutional violations sufficient to give the County notice that failing to implement a 7 policy or remedy a custom would lead to additional Eighth or Fourteenth Amendment 8 violations through its employees’ deliberate indifference to the serious mental health needs 9 of inmates. (FAC Order at 26.) Even if Plaintiffs establish such a pattern however, it 10 would not follow that every suicide that occurs on the County’s watch is a result of 11 deliberate indifference and amounts to a constitutional violation. Rather, a plaintiff would 12 need to show that the absence of an appropriate policy or failure to rectify a custom was 13 the moving force with respect to that particular incident. The Court concluded in section 14 III.C of its FAC Order that Plaintiffs had adequately pleaded deliberate indifference by a 15 County employee. (FAC Order at 22–23.) The Court incorporates by reference that 16 analysis here and again concludes that Plaintiffs have adequately pleaded that a County 17 employee violated Kris’s constitutional rights. The Court addresses the other two elements 18 below. 19 A. 20 To be deliberately indifferent, a party must first know of the thing they choose to be 21 indifferent about. See Connick, 563 U.S. at 61. To attribute deliberate indifference to a 22 government entity, a plaintiff must show that “policymakers are on actual or constructive 23 notice that a particular omission in their training program causes [the government entity’s] 24 employees to violate citizens’ constitutional rights.” Id. When a plaintiff alleges that 25 failing to properly train employees is the moving force behind a constitutional violation, it 26 is “ordinarily necessary” to show a “pattern of similar constitutional violations by untrained 27 employees” to establish the requisite notice. See id. at 62–63 (concluding that four 28 reversals in ten years for prosecutors’ Brady violations was insufficient to provide notice Absence of Policy or Presence of Custom 9 15-cv-0629-JLS (JMA) 1 of the need to train prosecutors about Brady requirements). A pattern of constitutional 2 violations is also required when a plaintiff seeks to hold a government entity liable for 3 failing to implement a policy. See id.; Conn v. City of Reno, 658 F.3d 897 (9th Cir. 2011) 4 (leaving vacated the portions of its opinion pertaining to both failure to train and failure to 5 implement policy based on Connick). In “rare” instances, “failing to train could be so 6 patently obvious that a city could be liable under § 1983 without proof of a pre-existing 7 pattern of violations.” Id. at 63–64.2 8 In its FAC Order, the Court concluded that Plaintiffs had not adequately alleged a 9 pattern of constitutional violations sufficient to establish liability for deliberate indifference 10 by the County itself. (See FAC Order at 22, 28.) As the Court noted, the “pertinent 11 question with respect to Defendant’s Motion to Dismiss is whether the County had notice 12 of a pattern of constitutional violations, such that failing to implement a policy or rectify a 13 custom could amount to deliberate indifference.” (FAC Order, at 26.) Plaintiffs argue that 14 they state a plausible claim for government entity liability based on the County’s 15 “systematically inadequate policy, practice or custom at VDF to ignore suicidal ideations, 16 signs, warnings and triggers during an inmate’s incarceration because there are no 17 guidelines, treatment or medical plans laid out for inmates that show or express a desire to 18 kill themselves after the initial intake process.” (SAC at ¶¶ 45, 65–70, 93–96, 112, 118– 19 120.) 20 In the FAC Order, the Court could only consider the allegation that: 21 [T]his policy, or lack thereof, has contributed to San Diego County’s jail system having the highest mortality rate of the ten largest jail systems in California and the second highest suicide rate among the state’s largest jail systems: 54 suicides per 100,000 inmates, more than 60% higher than the national average. 22 23 24 25 26 27 28 2 The Court previously concluded and again concludes that, in accordance with Ninth Circuit precedent in Conn, “single-incident liability does not attach to inmate suicides.” (See FAC Order at 25 (citing Conn, 658 F.3d at 897).) 10 15-cv-0629-JLS (JMA) 1 (FAC Order at 26.) The Court noted, “[a]lthough these allegations could provide a 2 foundation upon which Plaintiffs could plausibly state claims for government entity 3 liability if supplemented with additional facts, as it stands, this paragraph touching on the 4 County’s high suicide rate lacks sufficient ‘factual enhancement.’” (FAC Order, at 27) 5 (citing Iqbal, 556 U.S. at 678). Since not every suicide that occurs in jail is a result of a 6 constitutional violation, “the pleaded facts would need to show not only a pattern of 7 suicides, but a pattern of deliberate indifference to inmates’ serious medical needs, in this 8 case fairly obvious suicidal ideations.” (FAC Order at 28.) 9 Plaintiffs’ SAC describes a number of previous suicides and events leading up to 10 them in San Diego County jails, including VDF.3 (See SAC at ¶¶ 73–89.) For instance, 11 inmate Jose Sierra, who had been arrested in April 2013, was found hanging from a bed- 12 sheet in his single occupancy cell. (Id. at ¶¶ 76–77.) During the previous security check, 13 Deputies had observed an unauthorized laundry line affixed to the top bunk of Mr. Sierra’s 14 cell but failed to take corrective action. (Id.) In another example, inmate Anna Wade was 15 found hanging in her cell on April 28, 2013. (Id. at ¶ 78.) Deputies reported that they had 16 performed an hourly security check, but had not actually done so. (Id.) Perhaps the most 17 troubling is the story of inmate Robert Lubsen, who committed suicide on February 7, 18 2013. (Id. at ¶ 79; see also SAC Ex. 5.) Mr. Lubsen was arrested by campus police for a 19 drug-related crime, and while being detained in a campus holding cell, attempted to commit 20 suicide by hanging himself using his shoelaces. (SAC ¶ 79.) Mr. Lubsen was transferred 21 the next day to VDF and the intake officer noted that he had ligature marks around his 22 neck. (Id.) In addition to the ligature marks, VDF received a tip that Mr. Lubsen was a 23 risk to himself. (Id.) Deputies determined the tip was not credible, however, despite the 24 jail’s policy that after intake “all reports of suicidal behavior shall be considered serious.” 25 26 3 27 28 Defendants argue that prior judicial adjudicative findings that inmate suicides were constitutional violations at VDF would be necessary to establish liability. (MTD at 12; Reply at 6–8.) The Court does not deduce that legal rule from the authority Defendant cites. Further, it is hard to see how the County could ever be held liable if liability in the first instance always depended on a prior adjudication. 11 15-cv-0629-JLS (JMA) 1 (Id.) The next morning, Mr. Lubsen walked out of his second story cell, climbed on the 2 railing, and fell headfirst, nine feet to the floor below. His family would later take him off 3 of life support at the hospital. The SAC also incorporates a series of news articles detailing 4 instances of suicide in County jails and the County’s overall high suicide rate, all of which, 5 taken together with the County’s actually confronting these suicides as they occurred, could 6 plausibly have given policymaking County officials notice of a pattern of deliberate 7 indifference to inmates’ suicidal ideations by County employees, and that this deliberate 8 indifference was a result of failure by the County to properly train or a widespread custom 9 of responding to suicidal ideations apathetically. 10 Plaintiffs’ SAC lists several additional suicides and statistics that are irrelevant to 11 whether the County was deliberately indifferent because they occurred after Kris’ suicide, 12 and could not have therefore provided notice of a suicide problem as it pertains to Kris. 13 (See SAC at ¶¶ 81–87.) However, the facts reiterated in the SAC along with news reports 14 and anecdotal details of previous inmate suicides give context to the troubling statistics 15 cited by Plaintiffs. Taken as a whole, the SAC provides sufficient detail of circumstances 16 predating Kris’s suicide that, if proven, could plausibly have given the County notice that, 17 absent corrective action, it would continue to inadvertently violate inmates’ Eighth or 18 Fourteenth Amendment rights by failing to provide adequate mental health care. 19 B. 20 For an employee’s deliberate indifference to a serious medical or mental health need 21 to give rise to municipal liability based on the municipality’s customs or policies, the 22 plaintiff must show that the customs or policies were the “moving force” precipitating the 23 constitutional violation. Long, 442 F.3d at 1186. That means “the identified deficiency 24 in the policy must be ‘closely related to the ultimate injury.’” Id. at 1190. The plaintiff 25 must show that “the injury would have been avoided” if proper policies had been 26 implemented. Id. In the FAC Order, the Court noted that, if Plaintiffs could plead a pattern 27 of deliberate indifference, it would be plausible based on the other facts contained in the 28 /// Moving Force in the Violation 12 15-cv-0629-JLS (JMA) 1 then-operative complaint that the County’s policies and lack of training were a moving 2 force. (FAC Order at 29.) 3 The news reports and anecdotes detailed above along with the alleged facts 4 surrounding Kris’s own suicide evidence the absence of an appropriate institutional level 5 response to suicidal ideations by inmates entrusted to the County’s care. The responses of 6 particular correctional officers to Kris’s behavior and the statements by Kris’s family, if 7 later proven, are a result of the absence of appropriate training or custom of apathy. It is 8 plausible that if the County had reacted to the prior suicide incidents by implementing an 9 appropriate suicide prevention policy or by remedying the alleged custom of indifference, 10 Kris’s suicidal ideations would not have been ignored, and Kris would have been placed in 11 a setting where he could not harm himself. Thus, Plaintiffs adequately plead that the 12 County’s lack of training or the presence of a custom of indifference was the moving force 13 in the alleged constitutional violation. 14 Because Plaintiffs have provided sufficient detail showing deliberate indifference by 15 a County employee, that the County’s customs or policies amount to deliberate 16 indifference, and that these customs or policies were a moving force in the constitutional 17 violation in this instance, Defendant’s Motion to Dismiss Plaintiffs’ Second, Third, and 18 Fourth Causes of Action is DENIED. 19 II. Plaintiffs’ Seventh Cause of Action, Wrongful Death 20 Defendant moves to dismiss Plaintiffs’ Seventh Cause of Action, which is for 21 wrongful death. In the FAC Order the Court rejected Defendant’s argument for dismissal 22 without prejudice but noted that Defendant did “not address the matter of causation in the 23 context of the wrongful death claim, so the Court does not reach that issue.” (FAC Order 24 at 17.) The Court incorporates the analysis of section II of the SAC Order herein. 25 Defendant now urges that the SAC does not contain facts showing Kris was “in need 26 of immediate medical care,” and therefore does not show a causal link between a County 27 employees’ conduct and Kris’s suicide. (MTD at 17.) The Court disagrees, and concludes 28 that the facts pleaded show an adequate causal connection to survive dismissal on this 13 15-cv-0629-JLS (JMA) 1 point. Accordingly, Defendant’s Motion to Dismiss Plaintiffs’ Seventh Cause of Action is 2 DENIED. 3 CONCLUSION 4 For the reasons stated above, the Court DENIES Defendant’s MTD. 5 IT IS SO ORDERED. 6 Dated: September 12, 2016 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 15-cv-0629-JLS (JMA)
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.