Alejandre v. County of San Joaquin

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 ----oo0oo---- 8 9 CINDY M. ALEJANDRE; and DAVID No. 2:19-cv-00233-WBS-KJN GONZALEZ II as Co-Successors-in- 10 Interest to Decedent David Gonzalez III, 11 MEMORANDUM AND ORDER RE: Plaintiffs, DEFENDANTS’ MOTION FOR 12 SUMMARY JUDGMENT AND MOTION v. TO SEAL 13 COUNTY OF SAN JOAQUIN, a 14 municipal corporation; STEVEN BAXTER, individually and in his 15 capacity as a Sheriff’s deputy for the County of San Joaquin 16 Sherriff’s Department; MATTHEW FELBER, individually and in his 17 capacity as a Sheriff’s deputy for the County of San Joaquin 18 Sheriff’s Department; CHUE VANG, individually and in his capacity 19 as a Sheriff’s deputy for the County of San Joaquin Sherriff’s 20 Department; JASON ROHDENBURG, individually and in his capacity 21 as a Sheriff’s deputy for the County of San Joaquin Sheriff’s 22 Department; BARBARA GOEMAN and DOES 1-25, inclusive, 23 individually and in their official capacity as Sheriff’s 24 Deputies for the County of San Joaquin Sheriff’s Department, 25 Defendants. 26

27 ----oo0oo---- 28 1 Plaintiffs Cindy Alejandre and David Gonzalez II 2 (“plaintiffs”) brought this action as successors-in-interest to 3 their son, decedent David Gonzalez III (“Gonzalez”), against the 4 County of San Joaquin (“County”); San Joaquin County Sheriff’s 5 Deputies Steven Baxter, Matthew Felber, Chue Vang, and Jason 6 Rohdenburg; and Nurse Barbara Goeman, seeking damages under 42 7 U.S.C. § 1983 for denial of medical care and failure to summon 8 medical care, violation of plaintiffs’ Fourteenth Amendment 9 rights to a familial relationship with Gonzalez, and excessive 10 force, in addition to state law claims of failure to summon 11 medical care, wrongful death--negligence, violation of the Tom 12 Bane Civil Rights Act, battery, and intentional infliction of 13 emotional distress. (See generally Third Am. Compl. (“TAC”) 14 (Docket No. 37).) 15 Before the court are defendants’ Motion for Summary 16 Judgment (Defs.’ Mot. for Summ. J.) (Docket No. 66-1.), and 17 defendants’ Motion to Seal Exhibit 19 to their Compendium of 18 Evidence. (Defs.’ Mot. to Seal)(Docket No. 67.) 19 I. Factual and Procedural Background 20 Decedent David Gonzalez III (“Gonzalez”) was arrested 21 and taken into custody at the San Joaquin County Jail (“Jail”) on 22 June 22, 2018. (See Defs.’ Statement of Undisputed Facts 23 (“Defs.’ SUF”) No. 1, Docket No. 66-3).) Deputy Jason Rohdenburg 24 was assigned to the Jail’s Classification Unit on that date and 25 conducted Gonzalez’s classification interview, which included a 26 diagnostic process of identifying Gonzalez’s physical, emotional, 27 and security needs for his detainment. (See id. at Nos. 1–2.) 28 During the classification interview, Gonzalez indicated to Deputy 1 Rohdenburg that he was withdrawing from opiates. (See id. at No. 2 3.) Deputy Rohdenburg notified Jail medical personnel that 3 Gonzalez was withdrawing from opiates, and Gonzalez was medically 4 evaluated by defendant Nurse Barbara Goeman. (See id. at No. 4.) 5 During Nurse Goeman’s intake medical examination, 6 Gonzalez reported that he was a regular heroin user and was 7 experiencing withdrawal symptoms. (See id. at No. 17.) 8 Gonzalez’s vital signs were normal, and his physical examination 9 revealed piloerection (goose bumps), tremors, and rhinorrhea 10 (runny nose). (See id.) Gonzalez reported experiencing anxiety, 11 nausea, yawning, diarrhea, insomnia, arthralgia (joint pain), 12 chills, and cramping. (See Decl. of DeWitt Lacy in Opp’n to Mot. 13 for Summ. J. at Ex. B (“Lacy Decl.”) (Docket No. 70-4).) 14 Gonzalez was speaking normally and had a steady gait. (See 15 Defs.’ SUF at No. 17.) 16 Nurse Goeman made diagnoses of heroin abuse and 17 withdrawal and started Gonzalez on the Jail’s Opiate Withdrawal 18 Protocol, which included provision of Phenergan (promethazine), 19 Vistaril (hydroxyzine), Donnatal, Benadryl (dipenhydramine), 20 Gatorade, and monitoring. (See id.) At no time during Gonzalez’s 21 intake evaluation did he report any heart abnormalities or 22 unusual medical conditions, aside from his withdrawal from 23 heroin. (See id.) Nurse Goeman then medically cleared Gonzalez 24 for incarceration. (See id. at No. 4.) Gonzalez was placed in 25 “general population” housing, and not in the Jail’s medical 26 housing, because Nurse Goeman determined he was “hemodynamically 27 stable and not in acute withdrawal” requiring continuous nursing 28 and medical care. (See id. at No. 21.) 1 On June 25, 2018, Gonzalez was seen by another nurse 2 because he reported that he had been vomiting since the day 3 before and was unable to keep down food. (See Lacy Decl. at Ex. 4 NN.) He was given an injection of Phernergan to resolve his 5 vomiting symptoms. (See Defs.’ SUF at No. 22.) At approximately 6 midnight on June 26, 2018, Gonzalez pressed his cell’s medical 7 emergency call button and Deputy Chue Vang responded. (See id. 8 at No. 9.) Gonzalez told Deputy Vang that he was in pain and 9 going through withdrawal. (See id. at No. 10.) Deputy Vang 10 called Nurse Goeman and escorted Gonzalez from his cell to the 11 medical examination room where Nurse Goeman evaluated him. (See 12 id. at No. 11.) Gonzalez was alert, oriented, able to 13 communicate his needs and concerns, and had a strong and steady 14 gait. (See id. at No. 24.) He reported that he was “eating ok.” 15 (See id.) Gonzalez complained of hand cramping and was given 16 Motrin. (See Lacy Decl. at Ex. NN.) Nurse Goeman cleared 17 Gonzalez to remain in his general population housing unit and 18 noted that he did not want to be on bed rest and wanted to go to 19 his court appearance. (See Mot. for Summ. J. at Ex. 5.) 20 Defendant Deputy Steven Baxter supervised the process 21 of pulling inmates out of their cells to attend their court dates 22 and the transportation of inmates from the Jail to the Stockton 23 Superior Court (“Court”) on the morning of June 26, 2018. (See 24 Defs.’ SUF at No. 28.) Deputy Baxter observed Deputies Carlos 25 Prieto and Jose Hernandez transporting a group of inmates, 26 including Gonzalez, to the transportation lobby for their court 27 28 1 appearances. (See id. at No. 29.)1 Deputy Baxter approached and 2 spoke with Gonzalez who told him that his shoulder and stomach 3 hurt. (See id. at No. 31.)2 4 Based on Deputy Baxter’s observations of Gonzalez and 5 his conversation with Gonzalez, he believed that Gonzalez was 6 “kicking some sort of narcotic”, and resisting going to court for 7 his hearing. (See id. at No. 35.) Deputy Baxter consulted Jail 8 management software and saw that Nurse Goeman had cleared 9 Gonzalez for his scheduled court appearance less than 12 hours 10 earlier. (See id. at No. 36.) Deputy Baxter, along with Deputy 11 Khankhoune Kannalikham, escorted Gonzalez to the transportation 12 bus to head to court. (See id. at No. 37.) 13 Defendants contend that Gonzalez was able to walk under 14 his own power but, because he was resisting going to the bus, he 15 1 Defendants contend that Gonzalez left his housing unit 16 without incident but stopped cooperating and began resisting and generally behaving as if he did not want to go to court as he 17 approached the transportation lobby, and was then separated from 18 the group of inmates. (See Defs.’ SUF at No. 30.) Plaintiffs contend that Deputy Baxter was aware that Gonzalez did not feel 19 well and that he had to be taken to the transportation lobby by Deputies Prieto and Hernandez because he was unable to walk on 20 his own. (See Pls.’ Resp. to Defs.’ SUF at No. 30.) (Docket No. 70-1.) 21

22 2 Defendants contend that Gonzalez did not communicate to Deputy Baxter that he was sick, having a medical emergency, or 23 that he wanted to go to the hospital. (See Defs.’ SUF at No. 32.) Plaintiffs contend that Gonzalez communicated told Deputy 24 Baxter that his stomach and shoulder hurt and that he was in too much pain to go to court. (See Pls.’ Resp. to Defs.’ SUF at No. 25 32.) They also state that Gonzalez asked to see a nurse and that no nurse was summoned. (See Lacy Decl. at Ex. L.) Witnesses 26 stated that Gonzalez was moaning in pain and complaining that he 27 did not feel well, needed help, and was dying. (See Pl.’s Resp. to Defs.’ SUF at Nos. 32, 35.) 28 1 was escorted by Deputy Baxter and Deputy Kannalikham. (See 2 Defs.’ SUF at No. 39.) When they reached the bus stairwell, 3 Gonzalez “grabbed a hold of the door, and began pulling himself 4 away [from the bus] to try and turn past [the deputies] and get 5 past [them]”, but ultimately entered the bus under his own power. 6 (See id. at No. 39.)3 7 After escorting Gonzalez to the bus, Deputy Baxter 8 called the Court’s control room and spoke with defendant Deputy 9 Matthew Felber, a bailiff at the Courthouse. (See id. at Nos. 10 41, 44.) Deputy Baxter told Deputy Felber that Gonzalez was 11 having some medical problems. (See Mot. for Summ. J. at Ex. 20, 12 Dep. Tr. of Matthew Felber at 20:21–21:2.) Deputy Baxter asked 13 Deputy Felber to “relay a message to Courthouse Sergeant Jason 14 Wheelen that [Deputy Baxter] had one inmate who was 15 uncooperative, and that [Deputy Felber] needed to make sure he 16 had additional deputies [at the Courthouse] ready when the bus 17 arrive[d].” (See Defs.’ SUF at No. 41.)4 18 Deputy Phillip Hicks was the bus monitor on the 19 3 Plaintiffs state that Deputy Baxter and Deputy 20 Kannalikham carried Gonzalez to the bus. (See Pls.’ Resp. to Defs.’ SUF at No. 39.) 21

22 4 Plaintiffs contend that Deputy Baxter advised Deputy Felber that Gonzalez was displaying bizarre or erratic behavior 23 and screaming about wanting to go to the hospital. (See Pls.’ Resp. to Defs.’ SUF at No. 41.) Deputy Baxter also relayed that 24 he and the other deputies had to carry Gonzalez onto the bus. (See id.) Deputy Felber told Deputy Baxter that “if this inmate 25 is acting that way, we don’t want him.” (See Lacy Decl. at Ex. T.) Deputy Baxter told Deputy Felber that Gonzalez was already 26 on his way, and if Sergeant Wheelen refused him when he arrived 27 to court, then the bus driver would just bring Gonzalez back. (See id.) 28 1 transport bus that took Gonzalez to court. (See Pls.’ Resp. to 2 Defs.’ SUF at No. 46.)5 Five minutes after departing the main 3 section of the Jail, the bus arrived at the south section of the 4 Jail to load more inmates. (See Defs.’ SUF at No. 64.) By this 5 time, Gonzalez was on the floor of the bus, resting against the 6 side wall. (See id.)6 After loading the inmates from the south 7 section of the Jail, the bus drove to the Courthouse, a trip of 8 about 25 minutes. (See id. at No. 65.) 9 At approximately 12:11 P.M., the bus transporting 10 Gonzalez from the Jail to the Courthouse entered the court’s 11 “sally port” -- a small garage where buses can come and go from 12 the Court -- and parked.7 (See id. at No. 45.) Deputy Felber 13 5 Defendants contend that Gonzalez was able to walk to 14 his own seat on the bus, although his arm was held by Deputy Hicks. (See Defs.’ SUF at No. 62.) Plaintiffs dispute that 15 Gonzalez could walk on his own and contend that he was stumbling and falling while walking down the aisle. (See Pls.’ Resp. to 16 Defs.’ SUF at No. 62.)

17 6 Plaintiffs contend that Gonzalez was not able to sit up 18 under his own power and slid off his seat into the aisle, hitting his head with a loud thump. (See Pls.’ Resp. to Defs.’ SUF at 19 No. 64.) Defendants state that Gonzalez was able to stand and return to his own seat at Deputy Hicks’ request after he was 20 found on the bus floor, (see Defs.’ SUF at No. 64), while plaintiffs contend that Deputy Hicks forcibly picked up Gonzalez 21 and placed him back in the seat. (See Pls.’ Resp. to Defs.’ SUF 22 at No. 64.)

23 7 Plaintiffs contend that while on route to the courthouse, Deputy Hicks, the bus monitor, heard a loud thump as 24 Gonzalez fell to the floor. (See Pls.’ Statement of Additional Material Facts at No. 39 (“PAMF”) (Docket No. 70-2).) While on 25 the freeway during transportation, Gonzalez repeatedly fell off his seat on the bus into the middle aisle and hit his head. (See 26 id.) After falling and smacking his head for the third time, 27 Gonzalez did not rise from the bus floor and convulsed and seized until he suddenly stopped moving and fell silent. (See Pls.’ 28 1 was in the Court’s Control Room when the bus arrived. (See id. 2 at No. 51.) He was given notice that Gonzalez was nonresponsive 3 on the bus at around 12:16 P.M. (See id. at No. 52.) Upon 4 receiving notice, he immediately ran to the sally port. (See id. 5 at No. 53.) From approximately 12:16 P.M. to 12:18 P.M., 6 emergency medical equipment was brought into the sally port and 7 prepped for use on Gonzalez. (See id. at No. 48.) At 8 approximately 12:18 P.M., Gonzalez was taken off the bus by law 9 enforcement personnel and Deputy Felber began performing chest 10 compressions on Gonzalez. (See id. at No. 49.) He continued to 11 perform chest compressions on Gonzalez until an ambulance with 12 emergency medical personnel arrived at the sally port at 13 approximately 12:22 P.M. (See id. at No. 50.) 14 Based on an autopsy conducted by pathologist Dr. Bennet 15 Omalu, Gonzalez suffered from a rare genetic condition associated 16 with sudden cardiac arrest. (See id. at No. 77.) Gonzalez never 17 disclosed to the Jail’s correctional or medical staff that he had 18 any cardiac disease or abnormality. (See id. at No. 79.) Some 19 of the medications given to Gonzalez while in Jail to alleviate 20 his withdrawal symptoms, which are part of the Jail’s opiate 21 withdrawal protocol, have also been linked to cardiac arrythmias. 22 (See id. at No. 80.) However, not knowing of Gonzalez’s cardiac 23 condition, the Jail’s medical staff had no reason not to 24 administer the usual protocol medications to Gonzalez. (See id.) 25 II. Motion to Seal 26 inmates on the bus informed Deputy Vince Chunn, the bus driver, 27 and Deputy Hicks that Gonzalez was nonresponsive approximately ten minutes before the bus arrived at the sally port. (See id. 28 1 Defendants request that the court seal Exhibit 19 to 2 their Compendium of Evidence, which consists of video footage of 3 the transport bus arriving from Jail in the sally port of the San 4 Joaquin County Superior Court on June 26, 2018. (See Defs.’ Req. 5 to Seal (Docket No. 67).) 6 A party seeking to seal a judicial record bears the 7 burden of overcoming a strong presumption in favor of public 8 access. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 9 1178 (9th Cir. 2006). The party must “articulate compelling 10 reasons supported by specific factual findings that outweigh the 11 general history of access and the public policies favoring 12 disclosure, such as the public interest in understanding the 13 judicial process.” Id. at 1178-79 (citation omitted). In ruling 14 on a motion to seal, the court must balance the competing 15 interests of the public and the party seeking to keep records 16 secret. Id. at 1179. 17 Defendants argue that the video should be sealed for 18 reasons of jail and courthouse security, as “the video shows a 19 critical location pertaining to secure inmate transport to court 20 at the San Joaquin County Superior Court.” (Defs.’ Req. to Seal 21 at 2.) Defendants state that “[i]t has long been recognized that 22 jail security is a very important interest in running a jail.” 23 Id. (citing Pell v. Procunier, 417 U.S. 817, 823 (1974)). 24 However, the video plainly shows footage of the San Joaquin 25 County Superior Court’s sally port, not the jail. The footage 26 does not reveal which portion of the courthouse the sally port is 27 located in, or from which street one can gain access to the sally 28 port. Besides vague and conclusory assertions that allowing 1 footage contained in the video to become public would “compromise 2 jail and courthouse security,” defendants do not articulate any 3 specific reasons why footage of the inside of the sally port 4 would compromise security. The court therefore finds that 5 interests in jail and courthouse security do not outweigh the 6 public’s interest in disclosure of the video. See Kamakana, 447 7 F.3d at 1178. 8 Defendants further argue that they have an interest in 9 preventing disclosure of the video based on “law enforcement 10 privilege.” Defendants point out that “[c]ourts have long 11 recognized the ‘law enforcement privilege as an interest worthy 12 of protection,’ and one designed to ‘prevent the disclosure of 13 law enforcement techniques and procedures . . . .’” (Def.’s Req. 14 to Seal at 3 (quoting United States v. Amodeo, 44 F.3d 141, 147 15 (2d Cir. 1995)). While defendants characterize the video as one 16 depicting “law enforcement techniques,” a more accurate 17 description would be that the video shows a bus arriving, 18 followed by a group of assembled police officers transporting a 19 limp body from the bus to the ground and then performing 20 lifesaving techniques until paramedics arrive. If anything, 21 these are medical or first-response techniques, not “law 22 enforcement techniques.” The court therefore finds that law 23 enforcement privilege does not dictate sealing the video. See 24 Kamakana, 447 F.3d at 1178. 25 Accordingly, the court will deny defendants’ request to 26 seal Exhibit 19 to their Compendium of Evidence. 27 III. Evidentiary Objections 28 The court will next address defendants’ extensive 1 evidentiary objections to plaintiffs’ Statement of Additional 2 Material Facts. (See Defs.’ Objections to Pls.’ Evid. in Opp’n 3 to Mot. for Summ. J. (“Defs.’ Objections”) (Docket No. 73-4).) 4 A. Unsworn Witness Testimony and Interviews 5 As defendants note, the vast majority of the evidence 6 relied on by plaintiffs in their opposition derives from the 7 County’s In-Custody Death Protocol Investigation. (See id. at 8 3.) Following Gonzalez’s death, this protocol investigation was 9 initiated. (See id.) As part of this investigation, the County 10 Sheriff’s Office conducted 74 interviews of witnesses and other 11 Jail/law enforcement personnel, most of which were summarized by 12 the investigating detectives in the form of “Incident Reports.” 13 (See id.) Defendants challenge plaintiffs’ reliance on these 14 witness interviews and summaries on multiple grounds. 15 Defendants first argue that the unsworn witness 16 statements and summaries are inadmissible and cannot be 17 considered in a motion for summary judgment because they do not 18 comply with Federal Rule of Civil Procedure 56(c)(1)(A). (See 19 id. at 4). This rule provides that a party asserting that a fact 20 cannot be or is genuinely disputed must support the assertion by 21 “citing to particular parts of materials in the record, including 22 depositions, documents. . . affidavits or declarations. . . 23 admissions, interrogatory or other materials. . .” Fed. R. Civ. 24 P. 56(c)(1)(A). Defendants cite to two opinions of magistrate 25 judges in this district in support of their proposition, but no 26 binding authority. See Sanchez v. Penner, No. CIV S-07-0542 MCE 27 EFB P, 2009 WL 3088331, at *4 (E.D. Cal. Sep. 22, 2009); Johnson 28 v. Sandy, No. 2:12-cv-02992 JAM AC P, 2015 WL 1894400, * 1 (E.D. 1 Cal. Apr. 24, 2015). 2 Defendants are correct that, generally speaking, 3 evidence presented in the context of a motion for summary 4 judgment must be admissible. See Fraser v. Goodale, 342 F.3d 5 1032, 1036 (9th Cir. 2003). But a party opposing a motion for 6 summary judgment seeks a trial, not a verdict, and it stands to 7 reason that if evidence may probably be converted to admissible 8 form for trial, it should not be excluded at summary judgment. 9 See Gonzalez v. Cnty. of Yolo, No: 2-13-cv-01368-KJM-AC, 2015 WL 10 4419025, * 4 (E.D. Cal. Jul. 17, 2015). At the hearing on this 11 motion, plaintiffs stated that the disputed evidence relied upon 12 will be converted to an admissible form at trial. Accordingly, 13 the court will overrule this objection. 14 Defendants next contend that these witness statements 15 and interview summaries are hearsay. (See Defs.’ Objections at 16 5.) However, “[a]t the summary judgment stage, we do not focus 17 on the admissibility of the evidence’s form” but on the 18 admissibility of its contents. See Fraser, 342 F.3d at 1036. If 19 the contents of a document can be presented in a form that would 20 be admissible at trial, for example, through live testimony by 21 the person who was interviewed or who made the statement, the 22 mere fact that the document itself might be excludable hearsay 23 provides no basis for refusing to consider it on summary 24 judgment. See id. at 1036–37. Accordingly, the court overrules 25 defendants’ hearsay objections. 26 Defendants next argue that the interview summaries and 27 unsworn witness statements are inadmissible because plaintiffs 28 have failed to lay the proper foundation. (See Defs.’ Objections 1 at 6). However, the Ninth Circuit has long held that “an 2 objection to admission of evidence on foundational grounds must 3 give the basis for the objection in a timely way to permit the 4 possibility of cure.” Jerden v. Amstutz, 430 F.3d 1231, 1237 5 (9th Cir. 2005). Defendants’ conclusory statement that these 6 documents lack foundation, without providing any explanation as 7 to how the documents lack foundation, falls well short of 8 providing plaintiffs with notice of the specific ground of 9 objection, and consequently, what could be done to cure any 10 defects. See Sandoval v. Cnty. of San Diego, 985 F.3d 657, 666- 11 67 (9th Cir. 2021). Accordingly, these objections provide no 12 basis for excluding the evidence. See id. 13 B. Improper Legal Conclusions, Speculation, and Opinions 14 Defendants also contend that plaintiffs speculate, make 15 improper legal conclusions, and assert opinions disguised as 16 “facts” in their Statement of Additional Material Facts. (See 17 Defs.’ Objections at 6.) “[O]bjections to evidence on the ground 18 that it is irrelevant, speculative . . . or that it constitutes 19 an improper legal conclusion are all duplicative of the summary 20 judgment standard itself.” Burch v. Regents of University of 21 California, 433 F.Supp.3d 1110, 1119 (E.D. Cal. 2006). Because 22 statements based on speculation or improper legal conclusions are 23 not facts, and will not be considered by the court on a motion 24 for summary judgment anyway, the court overrules these objections 25 because they are “simply superfluous in this context.” See id. 26 C. Facts Not Supported by Evidence and Relevance 27 Defendants finally argue that the court should not 28 consider plaintiffs’ additional material facts because they are 1 not supported by the evidence. (See Defs.’ Objections at 6-7.) 2 This objection is similarly superfluous and is thus overruled for 3 the same reason -- to the extent that plaintiffs’ statements of 4 material fact are unsupported by the evidence, they do not 5 constitute material facts and therefore cannot be used to defeat 6 a motion for summary judgment. 7 IV. Motion for Summary Judgment8 8 Summary judgment is proper “if the movant shows that 9 there is no genuine dispute as to any material fact and the 10 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 11 P. 56(a). The party moving for summary judgment bears the 12 initial burden of establishing the absence of a genuine issue of 13 material fact and can satisfy this burden by presenting evidence 14 that negates an essential element of the non-moving party’s case. 15 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 16 Alternatively, the movant can demonstrate that the non-moving 17 party cannot provide evidence to support an essential element 18 8 All parties agree that Defendants Deputy Jason 19 Rohdenburg and Deputy Chue Vang should be dismissed from this case. On October 7, 2020, the court granted plaintiffs’ motion 20 for leave to file a fourth amended complaint which would add Sergeant Anthony Goulart as a defendant and dismiss Deputy Vang. 21 (See Docket No. 57.) Plaintiffs did not ultimately file a fourth 22 amended complaint, so Deputy Vang was not dismissed as a defendant. Although the parties discussed a stipulation which 23 would dismiss Deputies Vang and Rohdenburg, (see Decl. of Gregory Aker in Supp. of Mot. for Summ. J. at Ex. A (“Aker Decl.”) 24 (Docket No. 66-2).), the stipulation was not entered into due to a disagreement between counsel over legal fees and expenses which 25 resulted in name calling and discourteous language. (See id.) The court admonishes that such language is unnecessary, 26 unprofessional and ultimately only hurts the clients that counsel 27 on both sides purport to serve. Accordingly, the court orders that Deputies Rohdenburg and Vang be dismissed from this case. 28 1 upon which it will bear the burden of proof at trial. Id. If 2 the moving party has properly supported its motion, the burden 3 shifts to the non-moving party to set forth specific facts to 4 show that there is a genuine issue for trial. See id. at 324. 5 “Where the record taken as a whole could not lead a rational 6 trier of fact to find for the non-moving party, there is no 7 genuine issue for trial.” Matsuhita Elec. Indus. Co. v. Zenith 8 Radio Corp., 475 U.S. 574, 587 (1986). Any inferences drawn from 9 the underlying facts must, however, be viewed in the light most 10 favorable to the party opposing the motion. See id. 11 A. Threshold Element of Causation 12 As a preliminary matter, defendants argue that 13 plaintiffs’ federal claims necessarily fail because there is no 14 material dispute that Gonzalez’s underlying health conditions, 15 rather than any actions taken by defendants, caused his death. 16 (See Mot. for Summ. J. at 13-14.); see Blanco v. Cnty. of Kings, 17 142 F.Supp.3d 986, 992 (E.D. Cal. 2015). 18 Defendants rely on several conclusions made by 19 plaintiffs’ forensic expert, Dr. Bennet Omalu. Dr. Omalu 20 concluded that Gonzalez died as a result of sudden cardiac 21 arrhythmogenic death and that cocaine toxicity was a contributory 22 factor. (See Mot. for Summ. J. at Ex. 24, p. 4.) Dr. Omalu also 23 stated that Gonzalez suffered from a rare genetic condition 24 associated with sudden cardiac arrest. (See Defs.’ SUF at No. 25 77.) Gonzalez never disclosed to the Jail’s correctional or 26 medical staff that he had any cardiac disease or abnormality, 27 (see id. at No. 79), and did not disclose that he had used 28 cocaine hours before he was arrested. (See Mot. for Summ. J. at 1 14.) Defendants contend that Dr. Omalu’s testimony dooms 2 plaintiffs’ § 1983 claims because it shows that Gonzalez’s death 3 had nothing to do with the conduct of the named individual 4 defendants. (See id.)9 5 Plaintiffs’ expert ultimately comes to a different 6 conclusion than the one offered by defendants, however. Dr. 7 Omalu states that “[d]eaths from Sudden Cardiac Arrhythmogenic 8 Deaths and/or Cocaine Toxicity are highly preventable and 9 survivable diseases” and that “patients frequently survive if, 10 and when, they are provided timely and definitive medical care.” 11 (See Lacy Decl. at Ex. F, p. 5.) Dr. Omalu also said that the 12 “mechanisms of death of these two causes of death can be readily 13 arrested, reversed, or controlled to reduce the risk of sudden 14 death, especially in a controlled institutional environment.” 15 (See id.) Dr. Omalu opined that “Gonzalez’s death was highly 16 preventable if timely and definitive medical care had been 17 provided.” (See id. at 6.) Although defendants describe 18 Gonzalez’s heart as akin to a ticking time bomb, Dr. Omalu stated 19 that Gonzalez was not “in any imminent traumatic danger, and 20 death was not imminent.” (See id. at 5.) 21 In Sandoval, the Ninth Circuit held that there was a 22 genuine dispute of material fact as to whether there was a direct 23 causal link between the County’s practices and the decedent’s 24 injuries because the plaintiff’s expert opined that the decedent 25 would have survived if he had been taken to the hospital at any 26

27 9 For example, neither party argues that the allegedly excessive use of force used by Deputy Baxter in getting Gonzalez 28 1 time before he went into cardiac arrest. See Sandoval, 985 F.3d 2 at 681. Following the same reasoning, the court finds that Dr. 3 Omalu’s testimony suffices to create a genuine issue of material 4 fact as to the cause of Gonzalez’s death, and will not grant 5 summary judgment on this basis. 6 B. Qualified Immunity 7 The doctrine of qualified immunity “protects government 8 officials ‘from liability for civil damages insofar as their 9 conduct does not violate clearly established statutory or 10 constitutional rights of which a reasonable person would have 11 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(citing 12 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine 13 whether an officer is entitled to qualified immunity, the court 14 considers: (1) whether there has been a violation of a 15 constitutional right; and (2) whether the officers’ conduct 16 violated “clearly established” federal law. See Sharp v. Cnty. 17 of Orange, 871 F.3d 901, 909 (9th Cir. 2016) (citing Kirkpatrick 18 v. Cnty. of Washoe, 843 F.3d 784, 788 (9th Cir. 2016)). The 19 court has the discretion to decide which prong of qualified 20 immunity to address first and, if analysis of one prong proves 21 dispositive, the court need not analyze the other. See Pearson, 22 555 U.S. at 236. 23 Qualified immunity is a question of law to be decided 24 by the court. See Hunter v. Bryant, 502 U.S. 224, 228 (2009). 25 “Because the focus is on whether the officer had fair notice that 26 her conduct was unlawful, reasonableness is judged against the 27 backdrop of the law at the time of the conduct.” Kisela v. 28 Hughes, 138 S. Ct. 1148, 1152 (2018). Although the Supreme Court 1 has established that the case law does not require a case to be 2 directly on point for a right to be clearly established, existing 3 precedent must have placed the statutory or constitutional 4 question beyond debate. See White v. Pauly, 137 S. Ct. 548, 551 5 (2017). In other words, immunity protects all but the plainly 6 incompetent or those who knowingly violate the law. Id. The 7 Supreme Court has made clear that clearly established law should 8 not be defined at a high level of generality. See Kisela, 138 S. 9 Ct. at 1152. Plaintiffs bear the burden of “proving that the 10 right allegedly violated was clearly established at the time of 11 the official’s allegedly impermissible conduct.” Camarillo v. 12 McCarthy, 998 F.2nd 638, 640 (9th Cir. 1993). 13 1. Denial of Medical Care/ Failure to Summon Care 14 Plaintiffs allege that defendants Goeman, Baxter, and 15 Felber violated Gonzalez’s rights under the Fourteenth Amendment 16 by failing to summon medical care and provide constitutionally 17 adequate medical care. (See TAC at ¶¶ 34–39.) Individuals in 18 state custody have a constitutional right to adequate medical 19 treatment. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). 20 For inmates serving custodial sentences following a criminal 21 conviction, that right is part of the Eighth Amendment’s 22 guarantee against cruel and unusual punishment. See id. 23 However, pretrial detainees have not yet been convicted of a 24 crime and therefore are not subject to punishment by the state. 25 See Sandoval, 985 F.3d at 668. Accordingly, their rights arise 26 under the Fourteenth Amendment’s Due Process Clause. See id. 27 (citing Bell v. Wolfish, 441 U.S. 520, 535-36 (1979).) 28 Claims for violations of the right to adequate medical 1 care brought by pretrial detainees against individual defendants 2 under the Fourteenth Amendment must be evaluated under an 3 objective deliberate indifference standard. See Gordon v. Cnty. 4 of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018). Pretrial 5 detainees alleging that jail officials failed to provide 6 constitutionally adequate medical care must show: 7 (1) The defendant made an intentional decision with respect to the conditions under which 8 plaintiff was confined [including a decision with respect to medical treatment]; 9 (2) Those conditions put the plaintiff at 10 substantial risk of suffering serious harm; 11 (3) The defendant did not take reasonable available measures to abate that risk, even though 12 a reasonable official in the circumstances would have appreciated the high degree of risk involved 13 -- making the consequences of the defendant’s conduct obvious; and 14 (4) By not taking such measures, the defendant 15 caused plaintiff’s injuries. 16 Id. at 1125 (9th Cir. 2018). To satisfy the third element, 17 plaintiffs must show that defendants’ actions were “objectively 18 unreasonable,” which requires a showing of “more than negligence 19 but less than subjective intent -- something akin to reckless 20 disregard.” Id. 21 Accordingly, to defeat qualified immunity for 22 defendants, plaintiffs must show that, given the available case 23 law at the time, a reasonable jail official knowing what 24 defendants knew would have understood that his actions, 25 “presented such a substantial risk of harm to [Gonzalez] that the 26 failure to act was unconstitutional.” See Horton by Horton v. 27 City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019); Sandoval, 28 1 958 F.3d at 678. 2 a. Nurse Goeman 3 Plaintiffs first contend that Nurse Goeman violated 4 clearly established federal law by providing constitutionally 5 inadequate medical care when treating Gonzalez and failing to 6 summon a doctor or nurse practitioner. (See Opp’n to Mot. for 7 Summ. J. at 12.)(Docket No. 70.) To defeat qualified immunity 8 for Nurse Goeman, plaintiffs must show that, given the available 9 case law at the time, a reasonable nurse knowing what Nurse 10 Goeman knew would have understood that placing Gonzalez in 11 general population housing and clearing him to attend court on 12 June 26, 2018, “presented such a substantial risk of harm to 13 [Gonzalez] that the failure to act was unconstitutional.” See 14 Horton, 958 F.3d at 678. 15 The strongest case that plaintiffs cite in support of 16 their contention that Nurse Goeman violated clearly established 17 law is Sandoval, 985 F.3d at 670. In Sandoval, the court held 18 that a jail nurse was not entitled to qualified immunity for 19 failure to provide constitutionally adequate medical care when, 20 after being told by a sheriff’s deputy that the inmate was 21 shaking, tired, disoriented, and needed to be looked at more 22 thoroughly, the jail nurse merely administered a duplicative 23 blood sugar test, cleared the inmate for booking, and failed to 24 check in on the inmate at any point for multiple hours. See id.10

25 10 Although the decision in Sandoval was published in 2021, the incidents at issue in Sandoval occurred in 2014. See 26 id. at 662. In deciding Sandoval, the Ninth Circuit held that, 27 even in 2014, the law clearly established that the nurses’ actions presented such a substantial risk of harm to the decedent 28 1 The court concludes that Sandoval is so wholly 2 factually distinguishable that it could not have placed a 3 reasonable nurse, knowing what Nurse Goeman knew, on notice that 4 her conduct was unlawful. Nurse Goeman did a full medical intake 5 examination of Gonzalez before clearing him to be in a general 6 population cell, started him on the Jail’s opiate withdrawal 7 protocol, and determined that he was “hemodynamically stable and 8 not in acute withdrawal” requiring continuous nursing and medical 9 care. (See Defs.’ SUF at Nos. 17–21.) Most critically, unlike 10 the inmate in Sandoval, Gonzalez was speaking normally and had a 11 steady gait. (See id. at No. 17.) His vital signs were normal, 12 and his physical examination only revealed goose bumps, tremors, 13 and a runny nose. (See id.) Although Gonzalez reported having 14 nausea, diarrhea, and cramping, he was promptly provided 15 treatment for these symptoms through the medications on the 16 Jail’s Opiate Withdrawal Protocol. (See id.) In contrast to the 17 inmate in Sandoval, Gonzalez was provided with meaningful medical 18 treatment, and not merely a cursory and duplicative medical test. 19 Nor does Sandoval provide any support for plaintiffs’ 20 contention that Nurse Goeman violated clearly established law and 21 provided constitutionally inadequate medical care by clearing 22 Gonzalez to attend court on June 26th. When Nurse Goeman 23 evaluated Gonzalez on June 26, 2018, he was alert, oriented, and 24 able to communicate his needs and concerns, and he had a strong 25 and steady gait. (See id. at No. 24.) He reported that his 26 nausea and vomiting had abated after he had been treated by 27

28 1 another nurse the day prior and did not report any problems 2 eating. (See id.) 3 Gonzalez’s sole complaint at that time was that his 4 hand was cramping and hurt, and Nurse Goeman provided him Motrin 5 for the pain in response. (See id.) Nurse Goeman asked Gonzalez 6 whether he wanted to be on bed rest, and he stated that he did 7 not and wished to go to his court appearance. (See Mot. for 8 Summ. J. at Ex. 5.) Accordingly, Nurse Goeman cleared him to 9 return to his general population housing unit and to go to court 10 the next day. (See id.) Unlike the inmate in Sandoval, Gonzalez 11 was alert, oriented, able to communicate his needs and concerns, 12 and was not only provided medical treatment but was actually 13 improving because of the medical treatment provided. Sandoval 14 could not have possibly placed Nurse Goeman on notice that she 15 was providing constitutionally inadequate medical care by 16 acceding to Gonzalez’s wish to go to court, particularly given 17 his relatively minor symptoms of opiate withdrawal. 18 Although plaintiffs contend that Nurse Goeman was 19 somehow required to summon additional medical help by contacting 20 a doctor or nurse practitioner, the evidence they rely upon does 21 not establish this. (See Opp’n to Mot. for Summ. J. at 19.) 22 Rather, the County of San Joaquin Standardized Procedures for 23 Narcotic Withdrawals makes clear that symptoms of withdrawal 24 routinely last for 4-6 days, and that a doctor or nurse 25 practitioner need be contacted only if the signs and symptoms are 26 severe or do not improve despite treatment. (See Lacy Decl. at 27 Ex. C., p.3.) Although vomiting is listed as a severe subjective 28 sign of withdrawal, (see id. at p.2), Gonzalez had improved after 1 being treated for vomiting and did not report any problems eating 2 when he was evaluated by Nurse Goeman. (See Defs.’ SUF at No. 3 24.) Nor have plaintiffs provided any information suggesting 4 that a hand cramp is a severe symptom of opiate withdrawal. 5 In any event, Sandoval could not possibly have placed 6 Nurse Goeman on notice that the failure to summon medical care at 7 that stage was a violation of Gonzalez’s constitutional rights. 8 In Sandoval, the Ninth Circuit held that jail nurses were not 9 entitled to qualified immunity when the nurses knew that Sandoval 10 was unresponsive and having seizures but failed to promptly 11 summon paramedics, which was “[s]tandard nursing protocol.” See 12 Sandoval, 985 F.2d 657, 679. In contrast to Sandoval, Nurse 13 Goeman was not confronted with an inmate who was unresponsive and 14 in acute medical need. Nor is there any evidence that Goeman was 15 required to contact a doctor or nurse practitioner about 16 Gonzalez’s symptoms, particularly since he was improving with 17 treatment. All in all, Sandoval could not have placed a 18 reasonable nurse, knowing what Nurse Goeman knew, on notice that 19 her conduct was in any way unlawful. 20 b. Deputy Baxter 21 Plaintiffs next contend that Deputy Baxter violated 22 clearly established federal law by failing to summon medical care 23 for Gonzalez. (See Opp’n to Mot. for Summ. J. at 19.) Plaintiffs 24 cite Sandoval for the proposition that failure to provide “life 25 saving measures to an inmate in obvious need” is a clear 26 constitutional violation. See Sandoval, 985 F.3d at 679–80. The 27 court must therefore analyze whether Sandoval would have placed a 28 reasonable deputy, knowing what Deputy Baxter knew at the time, 1 on notice that failing to summon medical care for Gonzalez and 2 ensuring that he boarded the bus to his court date presented such 3 a substantial risk of harm to Gonzalez that the failure to act 4 was unconstitutional. See Horton, 915 F.3d 592, 599 (9th Cir. 5 2019). 6 California Penal Code § 825 mandates that criminal 7 defendants be taken before a criminal court judge without delay, 8 and in any event, within 48 hours of the arrest excluding Sundays 9 and holidays. See Cal. Pen. Code § 825. Although Gonzalez made 10 complaints of medical distress, requesting to see a nurse, 11 moaning that he was in pain, and even saying he was dying, Deputy 12 Baxter determined that Gonzalez should be sent to his mandated 13 court date only after verifying that he had been medically 14 cleared to attend court mere hours earlier, had refused bed rest, 15 and had insisted to Nurse Goeman that he wished to attend his 16 court date. (See id. at No. 36.) 17 Moreover, the Supreme Court has held that “clearly 18 established federal law does not prohibit a reasonable officer . 19 . . from assuming that proper procedures . . . have already been 20 followed.” See White, 137 S. Ct. at 552. Deputy Baxter was 21 therefore entitled to assume that proper medical procedures, 22 including Nurse Goeman's medical clearance of Gonzalez mere hours 23 earlier, had been followed. The court therefore concludes that 24 Sandoval could not have placed a reasonable deputy, knowing what 25 Deputy Baxter knew, on notice that his conduct here was unlawful. 26 c. Deputy Felber 27 Plaintiffs finally contend that Deputy Felber violated 28 clearly established federal law and failed to summon medical care 1 under 42 U.S.C. § 1983. The court must therefore determine 2 whether Sandoval would place a reasonable deputy, knowing what 3 Deputy Felber knew at the time, on notice that failing to have an 4 ambulance waiting for Gonzalez and additional deputies at the 5 ready, presented such a substantial risk of harm to Gonzalez that 6 the failure to act was unconstitutional. See Horton, 915 F.3d at 7 600. 8 Plaintiffs cite Sandoval for the proposition that “a 9 prison official who is aware that an inmate is suffering from a 10 serious acute medical condition violates the Constitution when he 11 stands idly by rather than responding with reasonable diligence 12 to treat the condition.” Sandoval, 985 F.3d at 680. However, 13 Deputy Felber only knew that Gonzalez complained of a medical 14 problem, not a medical emergency or serious acute medical 15 condition, and Deputy Baxter’s statements indicated that the main 16 issue with Gonzalez was that he was being uncooperative. (See 17 Mot. for Summ. J. at Ex. 20, Dep. Tr. of Matthew Felber at 24:3– 18 8; Defs.’ SUF No. 41.) 19 No evidence suggests that Deputy Felber became aware 20 that Gonzalez would require lifesaving, or even immediate, 21 medical attention until after Gonzalez had already arrived at the 22 courthouse. Nor is it clear to the court that Deputy Felber even 23 had the authority to summon additional medical care or order more 24 deputies to respond to Gonzalez’s transport bus; rather, the 25 evidence suggests that the ultimate decisions were to be made by 26 Deputy Felber’s superior, Sergeant Wheelen. All in all, Sandoval 27 could not have placed a reasonable deputy, knowing what Deputy 28 Felber knew, on notice that his conduct under the circumstances 1 of this case was unlawful. 2 d. Conclusion 3 Because plaintiffs fail to identify sufficiently 4 specific constitutional precedents to alert defendants that their 5 particular conduct was unlawful, all defendants are entitled to 6 qualified immunity for the alleged failure to provide 7 constitutionally adequate medical care and failure to summon 8 medical care under 42 U.S.C. § 1983. Considering all the 9 evidence, in the light most favorable to plaintiffs, the court 10 cannot conclude that any of these defendants either knowingly 11 violated the law or were plainly incompetent. See White, 137 S. 12 Ct. at 551. Accordingly, the court will grant summary judgment 13 on this claim. 14 2. Loss of Right to Familial Relations 15 Plaintiffs also contend that their own Fourteenth 16 Amendment rights to familial association were violated “as a 17 result of the denial of medical care by defendants.” (See TAC at 18 ¶¶ 52–54.) Parents and children may assert claims for 19 deprivation of their right to familial association under the 20 Fourteenth Amendment if they are deprived of their liberty 21 interest in the companionship and society of their child or 22 parent through official conduct. Wilkinson v. Torres, 610 F.3d 23 546, 554 (9th Cir. 2010). 24 However, liability for loss of familial relations is 25 limited to official conduct that “shocks the conscience.” Porter 26 v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). The Ninth 27 Circuit has indicated that this standard may be satisfied by 28 conduct that either “consciously or through complete indifference 1 disregards the risk of an unjustified deprivation of liberty.” 2 Tatum v. Moody, 768 F.3d 806, 820–21 (9th Cir. 2014) (citation 3 omitted). The Ninth Circuit further held that:

4 [W]here actual deliberation is practical, then an officer's ‘deliberate indifference’ 5 may suffice to shock the conscience. On the other hand, where a law enforcement officer 6 makes a snap judgment because of an escalating situation, his conduct may only be 7 found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law 8 enforcement objectives. 9 Id. (quoting Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th 10 Cir. 2013)). 11 The Supreme Court has specifically noted that the 12 “custodial situation of prison” is a setting where deliberate 13 indifference may be sufficient to shock the conscience because 14 “actual deliberation is practical.” Cnty. of Sacramento v. 15 Lewis, 523 U.S. 833, 852 (1998). This is because, unlike a 16 situation like a high-speed car chase or a prison riot, prison 17 officials have “time to make unhurried judgments” along with “the 18 chance for repeated reflection,” and their decision-making is 19 “largely uncomplicated by the pulls of competing obligations.” 20 Id. at 853. Accordingly, “[w]hen such extended opportunities to 21 do better are teamed with protracted failure even to care, 22 indifference is truly shocking.” Id.11 23 11 There is a legitimate question as to whether the proper 24 focus of the court’s inquiry should be on the constitutional rights of the plaintiffs or Gonzalez. For instance, plaintiffs 25 have proffered no evidence that the defendants knew that Gonzalez had any family, and were therefore aware that by taking any 26 allegedly unconstitutional action towards Gonzalez, they might 27 also be liable for violating the substantive due process rights to familial association for his family members. Nevertheless, 28 1 Because the events at issue in this case all took place 2 in a custodial setting where actual deliberation is practical, 3 the determination as to as to whether defendants’ actions shocked 4 the conscience is judged by the deliberate indifference standard. 5 See Gordon, 888 F.3d 1118, 1124-25 (holding that claims for 6 violations of the right to adequate medical care brought by 7 pretrial detainees against individual defendants under the 8 Fourteenth Amendment must be evaluated under an objective 9 deliberate indifference standard). 10 The court has already found, above, that defendants are 11 entitled to qualified immunity on plaintiffs’ claim for denial of 12 medical care and failure to summon medical care because there is 13 no clearly established law that would have warned defendants that 14 their actions “presented such a substantial risk of harm to 15 [Gonzalez] that the failure to act was unconstitutional.” 16 Horton, 915 F.3d at 600–602; Sandoval, 985 F.3d at 678. 17 Accordingly, for the same reasons, defendants are also entitled 18 to qualified immunity with respect to plaintiffs’ denial of 19 familial association claim. See Estate of Nunez by and through 20 Nunez v. Cnty. of San Diego, Case No. 3:16-cv-01412-BEN-MDD, 2018 21 WL 5817091 * 10 (S.D. Cal. Nov. 5, 2018) (holding that because 22 plaintiffs’ Fourteenth Amendment right to familial association 23 assume that the proper focus of the court’s inquiry is on the 24 constitutional rights of Gonzalez. See Porter, 536 F.3d at 1140 (holding that where plaintiffs brought a Fourteenth Amendment 25 right to familial association claim following defendant’s allegedly excessive use of force which killed their son, the 26 qualified immunity inquiry turned on whether plaintiffs could 27 present facts that would justify a jury finding that defendant acted with an unconstitutional purpose to harm the rights of 28 1 with the decedent was necessarily premised on a finding that 2 defendants were deliberately indifferent as to decedent’s 3 Fourteenth Amendment right to constitutionally adequate medical 4 care, plaintiffs’ Fourteenth Amendment claim could not survive 5 where deliberate indifference to decedent’s right to adequate 6 medical care was not established). The court will therefore 7 grant summary judgment on this claim.12 8 3. Excessive Force under 42 U.S.C. § 1983 9 Plaintiffs contend that defendants violated clearly 10 established law in using excessive force under 42 U.S.C. § 1983 11 by making Gonzalez board the bus to court. Although plaintiffs 12 brought their excessive force claim against all defendants, they 13 now seem to concede that Deputy Baxter is the only individual 14 defendant who used any amount of force on Gonzalez at all. (See 15 Mot. for Summ. J. at 27-28); (see Opp’n to Mot. for Summ. J. at 16 23–24.) Accordingly, the court will grant summary judgment as to 17 Nurse Goeman and Deputy Felber and will only evaluate whether the 18 12 The cases cited by plaintiffs in support of their 19 contention that defendants violated clearly established law and their Fourteenth Amendment right to familial association do not 20 compel a different finding. The only Ninth Circuit case cited by plaintiffs that addresses the substantive due process right to 21 familial association under the Fourteenth Amendment in the 22 context of deliberate indifference to medical needs is Lemire v. California Department of Corrections and Rehabilitation, 726 F.3d 23 1062, 1085 (9th Cir. 2013). There, the Ninth Circuit did not hold that the actions of defendants who allegedly failed to 24 provide CPR to an inmate constituted deliberate indifference or rose to the conscience-shocking level required for a Fourteenth 25 Amendment substantive due process violation, but rather found that there were disputed issues of fact which precluded summary 26 judgment. See id. at 1085. As such, Lemire could not have 27 placed defendants on notice that their actions were in any way unlawful. 28 1 use of force exerted by Deputy Baxter violated clearly 2 established law. 3 Plaintiffs cite Kingsley v. Hendrickson, 576 U.S. 389, 4 397 (2015), in support of their contention that Deputy Baxter 5 used excessive force and violated clearly established law. The 6 facts of Kingsley are wholly distinguishable from the facts at 7 issue here. In Kingsley, an inmate who refused to comply with 8 the orders of jail officials was forcibly removed from his cell 9 while in handcuffs and subsequently kneed in the back, had his 10 head slammed into a concrete bunk, and was stunned with a Taser. 11 See Kingsley, 576 U.S. at 393. Here, in contrast, Deputy Baxter 12 stated that Gonzalez refused orders to board the bus to court and 13 was “carried” onto the bus. (See Lacy Decl. at Ex. Z.) 14 Defendants have explained that “carrying” in jail parlance means 15 that Gonzalez was merely escorted onto the bus, not physically 16 picked up. (See Defs.’ SUF No. 39.) Deputy Baxter also pulled 17 Gonzalez’s hand away from the bus’s handrail because Gonzalez was 18 actively resisting the deputies and attempting to pull himself 19 off the bus and away from the deputies. (See id. at No. 38.) 20 Even assuming that Gonzalez was physically carried or 21 thrown onto the bus,13 plaintiffs have not identified any case law 22 which clearly establishes that such force is excessive in the 23

24 13 Plaintiffs contend that Gonzalez was thrown onto the bus and that he hit his head. (See PAMF at No. 36.) The inmate 25 reports that plaintiffs rely on do not make it clear if this means that Gonzalez was literally thrown onto the bus or if the 26 inmate was just speaking figuratively. It is unclear how the 27 deputies could have thrown Gonzalez onto the bus since it is undisputed that the stairs onto the bus are narrow and neither 28 1 case of a non-compliant inmate who has been medically cleared for 2 court and is actively resisting the deputies attempting to place 3 him on the bus to court. In sum, Kingsley could not have placed 4 a reasonable deputy, knowing what Deputy Baxter knew, on notice 5 that escorting Gonzalez to the bus and pulling his hand away from 6 the bus’s handrail, while Gonzalez was actively resisting the 7 deputies and attempting to pull himself off the bus, would amount 8 to a constitutional violation. 9 Because plaintiffs have failed to identify sufficiently 10 specific constitutional precedents to alert Deputy Baxter that 11 his particular conduct was unlawful, Deputy Baxter is entitled to 12 qualified immunity for the alleged unreasonable use of force. 13 Considering all the evidence in the light most favorable to 14 plaintiffs, the court cannot conclude that Deputy Baxter either 15 knowingly violated the law or was plainly incompetent. See White, 16 137 S. Ct. at 551. Accordingly, the court will grant summary 17 judgment on this claim. 18 C. State Law Claims 19 Because the court will grant summary judgment on 20 plaintiffs’ federal claims, the court no longer has federal 21 question jurisdiction, and there is no suggestion that there is 22 diversity jurisdiction in this case. Federal courts have 23 “supplemental jurisdiction over all other claims that are so 24 related to claims in the action within such original jurisdiction 25 that they form part of the same case or controversy under Article 26 III of the United States Constitution.” 28 U.S.C. § 1367(a). 27 But a district court “may decline to exercise supplemental 28 jurisdiction. . . [if] the district court has dismissed all 1 claims over which it has original jurisdiction.” 28 U.S.C. § 2 1367(c); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 3 10001 n.3 (9th Cir. 1997)(en banc) (explaining that a district 4 court may decide sua sponte to decline to exercise supplemental 5 jurisdiction). 6 The Supreme Court has stated that “in the usual case in 7 which all federal-law claims are eliminated before trial, the 8 balance of factors to be considered under the pendent 9 jurisdiction doctrine -- judicial economy, convenience, fairness 10 and comity -- will point toward declining to exercise 11 jurisdiction over the remaining state-law claims.” Carnegie- 12 Mellon Univ. v. Cohill, 488 U.S. 343, 350 n.7 (1988). 13 Here, comity strongly weighs in favor of declining to 14 exercise supplemental jurisdiction over plaintiffs’ state law 15 claims. The state courts are fully competent to adjudicate such 16 claims. Some of plaintiffs’ claims raise particularly complex 17 questions of state law.14 Such questions are better left to 18 14 The court heard additional arguments from the parties 19 about plaintiffs’ claim under the Tom Bane Civil Rights Act. These arguments revealed a split among district courts in 20 California, and even within this very district, as to whether claims under the Tom Bane Civil Rights Act can be brought as 21 survival actions. The arguments also revealed substantial 22 confusion as to whether threats, intimidation, and coercion must be shown independently from the alleged constitutional violation 23 in a deliberate indifference to medical needs claim. The intricacies of the Tom Bane Civil Rights Act are particularly 24 salient in this case because, as plaintiffs’ counsel conceded during the additional argument, Gonzalez died without incurring 25 any general damages. It is therefore an open question of state law as to what damages plaintiffs would be entitled to recover if 26 they prevail on their Tom Bane Act claim. After hearing the 27 parties’ arguments and conducting its own legal research, the court is convinced that this is a uniquely complex and unsettled 28 1 California courts to resolve. 2 As for judicial economy, plaintiffs’ state law claims 3 have not been the subject of any significant litigation in this 4 case, as the parties have focused on the federal claims. 5 Judicial economy does not weigh in favor of exercising 6 supplemental jurisdiction. And finally, convenience and fairness 7 do not weigh in favor of exercising supplemental jurisdiction 8 over plaintiffs’ remaining state law claims. The federal and 9 state fora are equally convenient for the parties. There is no 10 reason to doubt that the state court will provide an equally fair 11 adjudication of the issues. There is nothing to prevent 12 plaintiffs from refiling their state law claims against the 13 remaining defendants in state court, and any additional cost or 14 delay resulting therefrom should be minimal.15 Accordingly, the 15 court declines to exercise supplemental jurisdiction and will 16 dismiss plaintiffs’ remaining state law claims without prejudice 17 to refiling in state court. 18 IT IS THEREFORE ORDERED that that defendants’ motion to 19 seal, (Docket No. 67), be, and the same hereby is DENIED; 20 IT IS FURTHER ORDERED that, pursuant to the 21 representations of all parties, all claims against defendants 22

23 case would be best decided by state courts.

24 15 “[T]he period of limitations for any claim asserted under [28 U.S.C. § 1367(a)], and for any other claim in the same 25 action that is voluntarily dismissed at the same time or after the dismissal of the claim under subsection (a), shall be tolled 26 while the claim is pending and for a period of 30 days after it 27 is dismissed unless State law provides for a longer tolling period.” 28 U.S.C. § 1367(d). 28 eee eee eee IE I RI OO EES

1 Chue Vang and Jason Rohdenburg be, and the same hereby are, 2 DISMISSED WITH PREJUDICE; 3 IT IS FURTHER ORDERED that defendants’ motion for 4 summary judgment (Docket No. 66-1) be, and the same hereby is, 5 GRANTED as to plaintiffs’ first claim for denial of medical 6 care/failure to summon medical care under 42 U.S.C. § 1983, third 7 claim for excessive force under 42 U.S.C. § 1983, and fourth 8 claim for loss of their right to familial association under 42 9) U.S.C. § 1983; 10 AND IT IS FURTHER ORDERED that plaintiffs’ remaining 11 claims against defendants under California law be, and the same 12 hereby are, DISMISSED WITHOUT PREJUDICE to refiling in state 13 court. 14 The Clerk of Court is instructed to enter judgment 15 accordingly. 16 Dated: April 20, 2021 17 . - ak. A ble, (hi.te— 18 WILLIAM B. SHUBB 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 34