Estate of Michael Lee v. CDCR

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF MICHAEL LEE, et No. 2:20-cv-01161-JAM-CDK al., 12 Plaintiffs, 13 ORDER GRANTING IN PART AND v. DENYING IN PART JANET GOREWITZ’S 14 MOTION TO DISMISS CALIFORNIA DEPARTMENT OF 15 CORRECTIONS AND REHABILITATION, et al., 16 Defendants. 17 18 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND1 19 This case arises from the suicide of inmate Michael Lee. 20 Michael had a history of mental health issues, including suicide 21 attempts, due to a traumatic brain injury he suffered from a car 22 accident in 2004. Compl. ¶¶ 71-77, ECF No. 1. On June 30, 2017, 23

24 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 25 scheduled for November 24, 2020. While Defendant in her opening brief in support of her motion states she is moving for 26 dismissal of claims one, three, seven, and eight, she does not 27 anywhere address the legal basis for dismissal of the eighth claim. See generally Gorewitz’s Mot. to Dimiss(“Mot.”), ECF No. 28 39. Accordingly, the Court does not address it. 1 Michael turned himself in for his role in a fight that had 2 occurred several weeks prior. Id. ¶ 78. Michael pled guilty and 3 was incarcerated in El Dorado County Jail. Id. Concerned about 4 her son, Michael’s mother, Pamela Sandy, brought his medical 5 records to the jail and spoke with the warden, a doctor, and a 6 nurse about Michael’s injury, resulting mental health condition 7 and prior suicide attempts. Id. ¶ 79. Plaintiffs allege this 8 information was provided to CDCR upon his transfer to their 9 custody on August 30, 2017. Id. ¶¶ 79-81. While in CDCR 10 custody, Michael’s mental health deteriorated and on January 8, 11 2019 he committed suicide. Id. ¶¶ 94-147. 12 The Estate of Michael Lee (“Estate”) and Michael’s mother, 13 Mary Pamela Sandy (“Pamela Sandy”), (collectively “Plaintiffs”), 14 brought this action against CDCR and 25 individual defendants, 15 including Defendant Janet Gorewitz (“Defendant” or “Gorewitz”), 16 based on alleged deficiencies in Michael’s care while in CDCR 17 custody. See generally Compl. Defendant Gorewitz served as 18 Michael’s primary clinician from April 11, 2018 until April 24, 19 2018. Id. ¶¶ 120-123. On April 1, 2018, just 10 days before 20 Michael was transferred to Gorewitz’s care, he was brought to the 21 triage treatment area because he had stopped eating. Id. ¶ 117. 22 There, a licensed clinical social worker evaluated him and 23 determined he showed signs of depression, anxiety, and 24 hopelessness. Id. Michael was transferred to a Mental Health 25 Crisis Bed (“MHCB”) that same day, his third time in less than 26 two months. Id. A few days later, on April 6, 2018, 27 psychologist Daniel Gaylin spoke with Pamela Sandy to discuss 28 Michael’s mental health. Id. ¶ 119. Pamela Sandy, informed Dr. 1 Gaylin of Michael’s 2017 suicide attempt and that she feared he 2 was currently struggling with suicide ideation, which he 3 documented. Id. On April 11, 2018, when Defendant Gorewitz, 4 also a psychologist, began seeing Michael she noted that he 5 continued to refuse medication, continued to self-isolate, and 6 appeared to be “internally preoccupied with active process.” Id. 7 ¶ 120. Despite this, Defendant recommended Michael be 8 transferred to Enhanced Out Patient (“EOP”), a lower level of 9 care. Id. Plaintiffs allege this was below the standard of care 10 and in violation of CDCR policies. Id. ¶¶ 120-122. 11 Michael’s Estate brought three claims against Defendant 12 Gorewitz: (1) deliberate indifference to serious medical needs in 13 violation of the Eighth Amendment under 42 U.S.C. § 1983, 14 (2) wrongful death under California state law, and (3) negligence 15 under California state law. Id. at 39-44, 52-54. Pamela Sandy 16 also brought two claims against Defendant Gorewitz: 17 (1) deprivation of substantive due process rights in violation of 18 the First and Fourteenth Amendments under 42 U.S.C. § 1983, and 19 (2) wrongful death under California state law. Id. at 48, 52-54. 20 Defendant Gorewitz now moves to dismiss the Estate’s and Pamela 21 Sandy’s § 1983 causes of action for failure to state a claim, 22 Mot. at 8-9, as well as Pamela Sandy’s wrongful death action as 23 barred by the statute of limitations. Mot. at 7-8. Defendant 24 also argues that Pamela Sandy’s § 1983 action is barred by the 25 statute of limitations. Id. 26 II. OPINION 27 A. Legal Standard 28 A Rule 12(b)(6) motion challenges the complaint as not 1 alleging sufficient facts to state a claim for relief. Fed. R. 2 Civ. P. 12(b)(6). “To survive a motion to dismiss [under 3 12(b)(6)], a complaint must contain sufficient factual matter, 4 accepted as true, to state a claim for relief that is plausible 5 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 6 (internal quotation marks and citation omitted). While 7 “detailed factual allegations” are unnecessary, the complaint 8 must allege more than “[t]hreadbare recitals of the elements of 9 a cause of action, supported by mere conclusory statements.” 10 Id. “In sum, for a complaint to survive a motion to dismiss, 11 the non-conclusory ‘factual content,’ and reasonable inferences 12 from that content, must be plausibly suggestive of a claim 13 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 14 572 F.3d 962, 969 (9th Cir. 2009). 15 B. Analysis 16 1. Statute of Limitations 17 a. 1983 Claim 18 The applicable statute of limitations for § 1983 actions is 19 the state statute of limitations for personal injury actions. 20 Wilson v. Garcia, 471 U.S. 261, 276 (1985). In California, the 21 statute of limitations for personal injury actions is two years. 22 Cal. Civ. Proc. Code § 335.1. However, Defendant argues that 23 because Plaintiff Pamela Sandy’s claim arises from the provision 24 of healthcare services, the statute of limitations for 25 professional negligence claims against health care providers 26 under Cal. Civ Proc. Code. § 340.5 should apply. Mot. at 7-8. 27 The Court disagrees. 28 First, § 340.5 applies to claims “against a health care 1 provider based upon such person’s alleged professional 2 negligence.” Cal. Civ. Proc. Code § 340.5 (emphasis added). 3 Plaintiff’s § 1983 claims are not based on Defendant’s 4 professional negligence but rather on her deliberate 5 indifference. See Estelle v Gamble, 429 U.S. 97, 106 (1976) 6 (claims under 42 U.S.C. § 1983 require a showing of deliberate 7 indifference and are not the same as claims for negligence). As 8 such, § 340.5 is inapplicable to this claim by its very terms. 9 Second, in Owens, the Supreme Court clarified that where 10 state law provides multiple statutes of limitations for personal 11 injury actions, in § 1983 claims courts should borrow the 12 general or residual statute. Owens v. Okure, 488 U.S. 235, 249- 13 50 (1989). This is consistent with the Court’s reasoning that 14 in order to promote uniformity, certainty, and the minimization 15 of unnecessary litigation, the statute of limitations for § 1983 16 actions should not depend on the particular facts of the case. 17 Wilson, 471 U.S. at 275. Applying a different statute of 18 limitations here because of who Defendant is and the context in 19 which Plaintiff’s action arose would be inconsistent with these 20 goals. 21 Accordingly, the appropriate statute of limitations for 22 Plaintiff’s § 1983 action is California’s two-year limitations 23 period for personal injury actions. Here, Michael died on 24 January 8, 2019. Compl. ¶ 147. Plaintiff filed her suit on 25 June 9, 2020. Because the suit was filed within two years after 26 Michael’s death, her § 1983 claim is timely. See Cabrales v. 27 Cty. of Los Angeles, 864 F.2d 1454, 1463 (9th Cir. 1988) 28 (finding plaintiff’s 1983 action arose on the date of death), 1 cert. granted, judgment vacated, 490 U.S. 1087 (1989), and 2 opinion reinstated, 886 F.2d 235 (9th Cir. 1989). 3 b. Wrongful Death Claim 4 The elements of a wrongful death claim are: (1) a wrongful 5 act or neglect that (2) causes (3) the death of another person. 6 See Cal. Civ. Proc. Code § 377.60; Norgart v. Upjohn Co., 21 7 Cal. 4th 383, 390 (1999). A wrongful death claim may be based 8 on a defendant’s deliberate indifference, Villarreal v. Cty. Of 9 Monterey, 254 F.Supp.3d 1168, 1191 (N.D. Cal. 2017); Estate of 10 Prasad ex rel. Prasad v Cty. of Sutter, 958 F.Supp.2d 1101, 1118 11 (E.D. Cal. 2013), which is categorically different than a 12 medical negligence claim. Estelle, 429 at 106. 13 § 340.5 applies to wrongful death claims against a health 14 care provider based upon such person’s alleged professional 15 negligence. See Cal. Civ. Proc. Code § 340.5. Professional 16 negligence is defined as the negligent act or omission by a 17 health care provider in the rendering of professional services. 18 Id. § 340.5(2). 19 To the extent that Plaintiffs’ wrongful death claim is 20 based on Defendant’s negligence, § 340.5 would apply, as any 21 acts or omissions occurred during the rendering of professional 22 services. See Flores v. Presbyterian Intercommunity Hosp., 63 23 Cal. 4th 75, 88 (2016) (holding § 340.5 applies to actions 24 alleging injury suffered by negligence during the provision of 25 medical care to patients). As such, Plaintiffs’ action appears 26 to be time-barred as Michael died January 8, 2019, but the claim 27 was filed more than a year later, in June 2020. However, as 28 § 340.5 only applies to claims based on professional negligence, 1 it would not apply to Plaintiffs’ claim based on Defendant’s 2 deliberate indifference. See Cal. Civ. Proc. Code § 340.5. 3 Accordingly, Defendant’s motion to dismiss Plaintiffs’ 4 wrongful death claim is granted in part and denied in part. To 5 the extent that this claim is based on Defendant’s negligence it 6 appears to be barred by the one-year statute of limitations of 7 § 340.5. Plaintiffs have requested leave to amend and indicated 8 they may be able to plead facts demonstrating the statute of 9 limitations did not begin to run until October 2019, when the 10 negligent acts were discovered. Opp’n at 10-12, ECF No. 45. 11 Therefore, dismissal without prejudice is appropriate. See 12 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 13 (2003). Insofar as Plaintiffs’ claim is based on the other 14 wrongful acts of Defendant, such as deliberate indifference, the 15 motion to dismiss is denied. 16 2. Deliberate Indifference 17 To allege an Eighth Amendment violation pursuant to 18 42 U.SC. § 1983 based on prison medical treatment, an inmate 19 must show deliberate indifference to a serious medical need. 20 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Such 21 indifference may also support a claim for substantive due 22 process violation. Lemire v. Cal. Dep’t of Corr. & Rehab., 726 23 F.3d 1062, 1075 (9th Cir. 2013). In the Ninth Circuit, the test 24 for deliberate indifference consists of two parts. Jett, 439 25 F.3d at 1096. “First, the plaintiff must show a serious medical 26 need by demonstrating that failure to treat a prisoner’s 27 condition could result in further significant injury or the 28 unnecessary and wanton infliction of pain. Second, the 1 plaintiff must show that the defendant’s response to the need 2 was deliberately indifferent.” Id. (internal quotation marks 3 and citation omitted). This second prong is satisfied “by 4 showing (a) a purposeful act or failure to respond to a 5 prisoner’s pain or possible medical need and (b) harm caused by 6 the indifference.” Id. “Indifference may appear when prison 7 officials deny, delay or intentionally interfere with medical 8 treatment, or it may be shown by the way in which prison 9 physicians provide medical care.” Id. (internal quotation marks 10 and citation omitted). “Yet, an inadvertent or negligent 11 failure to provide adequate medical care alone does not state a 12 claim under § 1983.” Id. (internal quotation marks and citation 13 omitted). 14 Here, the first prong is satisfied, which Defendant does 15 not dispute, as Plaintiffs have alleged Michael was at an 16 elevated risk of suicide, a serious medical need. See Simmons 17 v. Navajo Cty., Ariz., 609 F.3d 1011, 1018 (2010). Defendant, 18 rather, argues that Plaintiffs have failed to allege facts 19 showing she was deliberately indifferent to Michael’s medical 20 needs or that any harm befell Michael as a result of her care. 21 Mot. at 8-9. However, Defendant cites no persuasive authority 22 that the facts alleged do not rise to a plausible claim of 23 deliberate indifference. See id. The Court finds that when 24 viewed in the light most favorable to the Plaintiffs, a trier of 25 fact could find based on the allegations, that Defendant was 26 deliberately indifferent to Michael’s serious medical needs. 27 First, the allegations support a finding that Defendant was 28 aware of Michael’s elevated suicide risk. The complaint alleges 1 that on April 11, 2018 Defendant was listed as Michael’s primary 2 clinician. Compl. ¶ 120. As his primary clinician, with access 3 to his medical file, it is reasonable to infer that Defendant 4 was aware of his medical history. This would include 5 psychologist Daniel Gaylin’s recent notes of a conversation with 6 Michael’s mother, where she informed him of Michael’s 2017 7 suicide and her concern that he was currently struggling with 8 suicidal ideation. Id. ¶ 119. Additionally, according to 9 Plaintiffs, the record shows that on April 1, 2018, Michael was 10 brought to the triage treatment area because he had stopped 11 eating for several days; that a licensed clinical social worker 12 had evaluated him and determined he showed signs of depression, 13 anxiety, and hopelessness; and that he was transferred to MHCB 14 care for the third time in less than two months that day. Id. 15 ¶ 117. 16 Based on these recent treatment notes indicating Michael’s 17 declining mental health, coupled with a documented history of 18 suicide attempts, suicidal ideation and serious mental health 19 condition, a trier of fact could find that Defendant was aware 20 of Michael’s heighted risk for suicide. Farmer v. Brennan, 511 21 U.S. 825, 842 (1994) (noting a fact finder may infer the 22 official had the requisite knowledge based on circumstantial 23 evidence). Further bolstering this conclusion is the fact that 24 Defendant herself noted Michael continued to refuse medication, 25 continued to self-isolate, had been sent to MCHB three times in 26 the prior six months, and appeared to be “internally preoccupied 27 with active process.” Compl. ¶ 120. 28 Despite this Defendant recommended Michael return to EOP, a 1 lower level of care. Id. Plaintiffs allege this was below the 2 standard of care and in violation of CDCR’s own policies. Id. 3 ¶¶ 120-122; Opp’n at 13. Based on these allegations, a trier of 4 fact could find Defendant failed to respond to Michael’s serious 5 medical need, as she was aware of his heightened risk for 6 suicide but offered no additional treatment. See Rocha v. 7 Kernan, No. EDCV 17-869-GW (FFMX), 2019 WL 2949031, at *10 (C.D. 8 Cal. Mar. 13, 2019). 9 Finally, Defendant argues that “[t]here is no connection 10 between her acts in providing healthcare and [Michael’s] future 11 self-harm, which occurred months later, on January 8, 2019.” 12 Mot. at 9. But, as Plaintiffs argue, the alleged harm Michael 13 suffered was not just his death but also the pain and suffering 14 resulting from his declining mental health. Opp’n at 14. 15 Allegations that Defendant did not recommend additional 16 treatment and sent him to a lower level of care are acts or 17 omissions that could plausibly have led to Michael’s declining 18 mental health and eventually, his suicide. See Rocha, at *11. 19 At the pleading stage, it is reasonable to conclude that if 20 Defendant had acted differently, she may have prevented his 21 death. Id. 22 III. ORDER 23 For the reasons set forth above, the Court DENIES Defendant 24 Gorewitz’s Motion to Dismiss Plaintiffs’ first and third, § 1983, 25 causes of action. Defendant’s Motion to Dismiss Plaintiffs’ 26 seventh cause of action for wrongful death is GRANTED in PART and 27 DENIED in PART. This claim is only dismissed to the extent it is 28 based on Defendant’s negligence. This portion is dismissed em IIE IE RISE OS IRE OS NMI IE III RID IE NRO OSE I EES eee

1 WITHOUT PREJUDICE. If Plaintiffs elect to amend their complaint 2 with respect to this claim, they shall file an Amended Complaint 3 | within twenty (20) days of this Order. Defendant’s responsive 4 pleading is due twenty (20) days thereafter. 5 IT IS SO ORDERED. 6 Dated: January 29, 2021 kA Geren aaa pebrsacr 00k 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11