Greer v. County of San Diego

• Court: District Court, S.D. California
• Decided: February 21, 2023
• Docket: 3:19-cv-00378
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Greer, Case No.: 19cv378-JO-DEB

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART PLAINTIFF’S MOTION TO CERTIFY AS 14 County of San Diego et al., FRIVOLOUS; DENYING 15 Defendants. DEFENDANTS’ MOTION TO STAY 16 17 18 19 20 While detained in San Diego Central Jail, Plaintiff Frankie Greer had a seizure, fell 21 from a top bunk bed, and suffered grave injuries after four jail employees failed to provide 22 him with seizure medication, a lower bunk bed, and emergency medical aid. Plaintiff 23 brought a 42 U.S.C. § 1983 action against these four employees (“Officer Defendants”), 24 various high level jail officials (“Supervisory Defendants”), and the County of San Diego 25 (“County”) (collectively, “Defendants”) alleging claims for deliberate indifference to 26 serious medical needs, among other claims. 27 On December 9, 2022, the Court denied Officer Defendants’ request for summary 28 judgment on the grounds of qualified immunity. On January 4, 2023, Officer Defendants 1 filed a notice of appeal seeking interlocutory review of the Court’s qualified immunity 2 ruling. On January 12, 2023, Defendants filed an ex parte motion to stay the entire action 3 pending resolution of the interlocutory appeal, and on January 17, 2023, Plaintiff filed a 4 motion to certify the interlocutory appeal as frivolous [Dkts. 295, 297]. The Court held 5 oral argument on the above motions on February 8, 2023. For the reasons stated below, 6 the Court grants in part Plaintiff’s motion to certify the interlocutory appeals of Defendants 7 Francisco Bravo, Christopher Simms, and Michael Campos as frivolous. The Court denies 8 Defendants’ motion to stay. 9 I. BACKGROUND 10 During his arrest intake procedure, Plaintiff communicated to the medical staff that 11 he had a seizure disorder and required anti-seizure medication. On January 31, 2018, 12 Plaintiff was arrested and booked into San Diego Central Jail. Dkt. 218-4 (Vol. 1 Plaintiff’s 13 Appendix (“1 Pl. App.”)) at 00043. During the booking process, Plaintiff informed the 14 medical staff that he suffered from a seizure disorder and required medication twice daily 15 to prevent seizures. 1 Pl. App. 00044, 00049, 00060. Defendant Macy Germono, a jail 16 nurse, conducted the medical evaluation of Plaintiff that late afternoon and notated 17 Plaintiff’s seizure disorder in the Jail Information Management System (“JIMS”), the 18 system used by the jail to communicate an inmate’s information. 1 Pl. App. 00049. Nurse 19 Germono wrote Plaintiff’s diagnosis as “Epilepsy” and notated his prescription 20 requirement in the file. 1 Pl. App. 00061, 00063. She also notated in JIMS, pursuant to 21 the standard nursing protocols for seizure disorders, that Plaintiff needed a lower bunk 22 assignment. 1 Pl. App. 00063; Dkt. 245-3 (Vol. 3 Plaintiff’s Appendix (“3 Pl. App.”)) at 23 00213, 00217. 24 The medical staff did not provide Plaintiff the prescription seizure medication that 25 he required. In addition to informing Nurse Germono that he suffered from a seizure 26 disorder, Plaintiff also informed her that he took seizure medication twice a day but had 27 missed his last dose. 1 Pl. App. 00049, 00060, 00063. Despite this information, Nurse 28 Germono did not take the required steps to provide Plaintiff with his anti-seizure 1 medication that night by calling the on-call doctor. Dkt. 209-5 (Germono Decl.) at ¶ 12. 2 Instead, she placed a note in his file to be seen by a doctor the following day.1 Germono 3 Decl. at ¶¶ 8, 12. This failure to call the on-call doctor to obtain the anti-seizure medication 4 violated the County’s standard nursing protocols and the nursing standard of care. 3 Pl. 5 00213, 00374. As a result of Nurse Germono’s failure to take the required steps, Plaintiff 6 did not have access to his twice daily anti-seizure medication. See 1 Pl. App. 00060. 7 On February 1, 2018, the day after his arrest and medical screening with Nurse 8 Germono, Plaintiff was assigned to an upper bunk instead of a lower bunk. Defendant 9 Francisco Bravo, the jail deputy in charge of assigning beds to inmates, was required to 10 house inmates appropriately based on their medical instructions in JIMS. Dkt. 218-5 (Vol. 11 2 Plaintiff’s Appendix (“2 Pl. App.”)) at 00082. Despite this requirement that he review 12 the medical instructions and bunk notation in JIMS, Deputy Bravo did not assign Plaintiff 13 to a lower bunk in the cell. See 2 Pl. App. 00082, 00093; 3 Pl. App 00253-00254. Deputy 14 Bravo was also responsible for making a lower bunk notation on a physical index card that 15 lets the housing staff know medical restrictions. 2 Pl. App. 00199-200. He did not make 16 a lower bunk notation on Plaintiff’s index card. 2 Pl. App. 00087, 00182. Defendant 17 Christopher Simms, the housing deputy who physically escorted Plaintiff to his cell, also 18 failed to assigned Plaintiff to a lower bunk. 2 Pl. App. 00086. Deputy Simms was 19 responsible for reviewing the physical index card or the JIMS system to check for medical 20 restrictions before physically assigning an inmate to a bed. 2 Pl. App. 00186, 00199. 21 Plaintiff told him that he suffered from seizures and should not be assigned a top bunk. See 22 3 Pl. App. 00283. Despite knowing that Plaintiff should not be assigned to a top bunk due 23 to his seizure disorder, Deputy Simms assigned Plaintiff to a top bunk around 1:44 pm that 24 afternoon. 2 Pl. App. 00086. 25 26

27 1 Due to other failures in the jail medical care system, a doctor did not see Plaintiff or provide him with 28 1 Later that evening around 6:15 pm, while in the top bunk, Plaintiff suffered a seizure 2 and fell at least six feet onto the concrete cell floor, rendering him unconscious. 3 Pl. App. 3 00296-297, 308; Pl. Video Ex. 1. His two cellmates immediately shouted for help and 4 pushed the emergency intercom button, which connects inmates to security control for 5 emergency assistance. 3 Pl. App. 00293-294, 00312, 00319. Soon, inmates in other cells 6 also started shouting for help. 3 Pl. App. 00306, 00313. Defendant Michael Campos, the 7 control deputy in the control tower responsible for responding to the intercom calls, did not 8 respond to the emergency intercom calls or the repeated inmate shouts for help. See 3 Pl. 9 App. 00264, 00306. The intercom system was functioning and not muted at this time. Dkt. 10 207-6 (Declaration of Michael Campos) at ¶¶ 7–9. Deputy Campos routinely checked the 11 intercom system at the start of his shift at 6:00 pm; if he noted any malfunction, he would 12 have immediately reported it. Id. ¶¶ 7, 11; see 3 Pl. App. 00271-72, 00319. Despite the 13 cellmates’ intercom calls and shouts for emergency help around 6:15 pm, Deputy Campos 14 failed to respond and obtain emergency medical care for Plaintiff. 2 Pl. App. 00293-00294, 15 00306. Around 7:00 pm, approximately forty-five minutes after Plaintiff’s fall and the 16 cellmates’ calls for help, other floor deputies conducting their routine cell checks found 17 Plaintiff on the floor unconscious and bleeding from his head. 3 Pl. App. 00307; Pl. Video 18 Ex. 1. 19 Based on the above events, Plaintiff brought Section 1983 claims against Nurse 20 Germono and Deputies Bravo, Simms, and Campos for deliberate indifference to serious 21 medical needs, among other claims. Dkt. 59 (SAC). On September 19, 2022, Officer 22 Defendants moved for summary judgment on the basis that the undisputed material facts 23 showed no constitutional violation. Dkts. 206, 207, 209, 210. They further contended that 24 even if there were a triable issue as to the officers’ deliberate indifference, they were still 25 entitled to summary judgment on the grounds of qualified immunity. The Court held oral 26 argument on December 7, 2022, and denied summary judgment on the grounds that the 27 record raised numerous triable issues for the fact-finder and that clearly established Ninth 28 Circuit law precluded qualified immunity. Because the Court made its rulings on the record 1 in summary fashion during the oral argument, the Court issues the below written ruling on 2 its qualified immunity denial prior to examining Plaintiff’s motion to certify the 3 interlocutory appeal as frivolous and Defendants’ motion to stay. 4 II. LEGAL STANDARD 5 An officer defendant has the right to immediately appeal the purely legal questions 6 in a district court’s denial of qualified immunity. Knox v. Southwest Airlines, 124 F.3d 7 1103, 1106 (9th Cir. 1997); 28 U.S.C. § 1291. Such an interlocutory appeal ordinarily 8 divests the district court of jurisdiction to proceed with trial on the appealed issues, unless 9 the district court certifies in writing that the appeal is frivolous. Chuman v. Wright, 960 10 F.2d 104, 105 (9th Cir. 1992). If the district court certifies in writing that the appeal is 11 frivolous, then it retains jurisdiction over the appealed issues and may proceed with trial. 12 Id. 13 III. DENIAL OF QUALIFIED IMMUNITY FOR OFFICER DEFENDANTS 14 The Court previously ruled that qualified immunity did not shield Officer 15 Defendants from Plaintiff’s Section 1983 claims for deliberate indifference to medical 16 needs under the Fourteenth Amendment. To win on these claims, Plaintiff must prove that 17 “(i) the defendant made an intentional decision with respect to the conditions under which 18 the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of 19 suffering serious harm; (iii) the defendant did not take reasonable available measures to 20 abate that risk, even though a reasonable official in the circumstances would have 21 appreciated the high degree of risk involved—making the consequences of the defendant’s 22 conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s 23 injuries.” Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). 24 A plaintiff may bring a Section 1983 claim against officers acting under color of 25 state law who caused the deprivation of a federal right. Hafer v. Melo, 502 U.S. 21, 25 26 (1991). However, officers sued in an individual capacity may assert a qualified immunity 27 defense, which precludes liability if “their conduct does not violate clearly established 28 1 statutory or constitutional rights of which a reasonable person would have known.” 2 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 3 This qualified immunity determination consists of two prongs, the second of which 4 is a purely legal question. To determine whether an officer is entitled to qualified 5 immunity, the court must evaluate two independent questions: (1) whether the officer’s 6 conduct violated a constitutional right, and (2) whether that right was “clearly established” 7 at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232 (2009). A right is 8 clearly established if “the contours of the right are sufficiently clear that a reasonable 9 official would understand that what he is doing violates that right.” Anderson v. Creighton, 10 483 U.S. 635, 640 (1987); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 11 2006). This means that the court looks to “whether a reasonable officer would recognize 12 that his or her conduct violates that right under the circumstances faced, and in light of the 13 law that existed at that time.” Kennedy, 439 F.3d at 1065 (citing Saucier v. Katz, 533 U.S. 14 194, 202 (2001)). As to the law that existed at the time, the court “need not find a prior 15 case with identical, or even materially similar facts”; it is enough that “the preexisting law 16 provided the defendants with fair warning that their conduct was unlawful.” Id. (internal 17 quotations omitted). If a right is not clearly established, the defendant is entitled to 18 qualified immunity. Lawrence v. U.S., 340 F.3d 952, 956 (9th Cir. 2003). If the right is 19 clearly established, the court determines “whether the defendant’s conduct was ‘objectively 20 legally reasonable’ given the information possessed by the defendant at the time of his or 21 her conduct.” Id. (quoting Anderson, 483 U.S. at 641). 22 Although a plaintiff has the ultimate burden to show that the constitutional right was 23 clearly established, the court must resolve on summary judgment all disputes of fact and 24 credibility in favor of the plaintiff, and draw all reasonable inferences in his favor. 25 Clairmont v. Sound Mental Health, 632 F.3d 1091, 1110 (9th Cir. 2011). Summary 26 judgment on the basis of qualified immunity “is not proper unless the evidence permits 27 only one reasonable conclusion.” Lawrence, 340 F.3d at 955. “Where conflicting 28 inferences may be drawn from the facts, the case must go to the jury.” Id. 1 Defendant Macy Germono 2 The Court denied summary judgment for Nurse Germono on qualified immunity 3 grounds, finding that clearly established law put Nurse Germono on notice that her conduct 4 was unlawful. Specifically, the Court finds that Ninth Circuit law clearly established that 5 when a medical screening indicates an urgent need for medical treatment to prevent serious 6 injury, a jail’s medical staff must follow up to provide medical attention within a reasonable 7 period of time. Gibson v. County of Washoe, 290 F.3d 1175, 1194–96 (9th Cir. 2002), 8 overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 9 2016). In Gibson v. County of Washoe, an inmate suffered a heart attack and died shortly 10 after he was booked into county jail. Id. at 1190. Medical staff had failed to properly 11 screen him in order to identify his medical needs during the booking process, which led to 12 a failure to provide him with the time-sensitive medical attention that he needed. Id. The 13 Ninth Circuit held that this failure to medically screen new inmates in order to provide the 14 proper, immediate medical care may be deliberate indifference to medical needs. Id. 15 Similarly, the Ninth Circuit established an inmate’s right to treatment arising from a 16 diagnosed medical condition. In Lolli v. County of Orange, jail officials knew that an 17 inmate booked into county jail had a diabetic condition and needed food to regulate his 18 blood sugar levels. Lolli v. County of Orange, 351 F.3d 410, 420–21 (9th Cir. 2003). 19 Despite such knowledge, they failed to provide him with the necessary food to prevent the 20 substantial risk of harm from such blood sugar imbalances and the inmate experienced 21 blurred vision, nausea, increased urination, and physical weakness. Id. The Ninth Circuit 22 held that a constitutional violation may take place when a jail official does not respond to 23 the legitimate medical needs of a diabetic detainee. Id. at 420. Additionally, in Wakefield 24 v. Thompson, the Ninth Circuit found that a prison has a constitutional duty to provide an 25 outgoing inmate with his prescription medications upon release so that he has a sufficient 26 supply of doses until he can obtain the medications himself. Wakefield v. Thompson, 177 27 F.3d 1160, 1165 (9th Cir. 1999). 28 1 From this constellation of cases, the Court found that a reasonable officer would be 2 on notice that she must timely follow up to provide required medications for serious 3 medical needs identified during a medical screening. Gibson provided notice that prisons 4 must conduct proper medical screenings in order to provide the appropriate medical 5 treatment in a timely manner. Gibson, 290 F.3d at 1194–96. Lolli further confirmed that 6 when prison officials know an inmate has a diagnosed condition requiring care to prevent 7 injury—there, food to prevent the consequences of physical illness from low blood sugar— 8 that they must provide such care. Lolli, 351 F.3d at 420–21. Finally, Wakefield, in 9 explaining that an inmate has a right to prescription medications upon release to prevent 10 missed doses, established a fortiori that an inmate would have the right not to miss doses 11 of a needed medication while in custody. Wakefield, 177 F.3d at 1165. Therefore, in light 12 of the clearly established law, the Court found that a reasonable nurse would know that not 13 providing Plaintiff with his anti-seizure medication that night would violate his 14 constitutional rights. 15 According to Plaintiff’s account of the facts, Nurse Germono knew that Plaintiff had 16 a seizure disorder, required anti-seizure medication twice a day, and needed a dose that 17 evening. See 1 Pl. App. 00044, 00060–63. Nurse Germono also should have known that 18 the standard nursing protocol and standard of care required her to call the on-call doctor to 19 get Plaintiff his prescription that night. 3 App. Pl. 00213, 00374. Despite this knowledge, 20 Nurse Germono did not take actions to obtain anti-seizure medication for Plaintiff. 21 Germono Decl. at ¶ 12. Based on these facts taken in the light most favorable to Plaintiff, 22 a jury could infer Nurse Germono intentionally disregarded Plaintiff’s need for anti-seizure 23 medication that evening and failed to timely follow up to provide the necessary medication 24 for a serious medical condition identified during her screening process. Given the above 25 triable issues from Plaintiff’s evidence, the Court determined that Nurse Germono’s 26 conduct was objectively unreasonable in light of the clearly established law. Accordingly, 27 the Court denied summary judgment for Nurse Germono on qualified immunity grounds. 28 1 Defendants Francisco Bravo and Christopher Simms 2 The Court also found that qualified immunity does not shield Defendants Bravo and 3 Simms from damages for civil liability because Ninth Circuit law clearly established that 4 a jail deputy must provide a lower bunk bed to an inmate based on his medical need for 5 one. The Ninth Circuit has found that a prison official’s failure to comply with an inmate’s 6 medical chrono requiring a bottom bunk can constitute deliberate indifference. Akhtar v. 7 Mesa, 698 F.3d 1202, 1213–1214 (9th Cir. 2012). In Akhtar v. Mesa, an inmate suffered 8 from numerous serious medical conditions and had a medical accommodation chrono 9 showing that he required a bottom bunk. Id. He showed his medical chrono to jail officers, 10 but the jail officers ignored the chrono and moved him to a top bunk, from which he fell 11 and broke his wrist. Id. at 1206. The Ninth Circuit found that a prison official’s failure to 12 comply with an inmate’s need for a lower bunk to prevent significant harm from serious 13 medical conditions constituted deliberate indifference. Id. 14 Based on this clearly established law, the Court found that a reasonable housing 15 deputy would know that failing to provide Plaintiff with a lower bunk in the face of a lower 16 bunk designation for his seizure disorder would violate Plaintiff’s constitutional rights. 17 Like in Akhtar, where the prison officials knew of an inmate’s numerous severe medical 18 conditions requiring his placement in a lower bunk, Deputies Bravo and Simms knew that 19 Plaintiff had a seizure disorder and required a lower bunk based on the JIMS designation 20 for his safety. According to Plaintiff’s account of the facts, Deputy Bravo did not assign 21 Plaintiff a lower bunk or make a notation on his physical housing index card despite the 22 lower bunk designation in JIMS based on his seizure disorder. 1 Pl. App. 00047, 49; 3 Pl. 23 App. 00253-00254; 2 Pl. App. 00182, 00087. Despite having access to the lower bunk 24 assignment in JIMS and being told Plaintiff had a seizure disorder and required a bottom 25 bunk, Deputy Simms still assigned Plaintiff to the upper most top bunk in the cell. 2 Pl. 26 App. 00185-189, 00199; 3 Pl. App. 00283. In light of the clearly established law in Akhtar, 27 the Court determined that a reasonable officer would be on notice that he must provide an 28 inmate with a lower bunk if the inmate’s medical condition would otherwise cause injury. 1 Accordingly, the Court denied summary judgment for these defendants on the grounds that 2 their conduct was objectively unreasonable given the clearly established law. 3 Defendant Michael Campos 4 Finally, the Court found that qualified immunity does not shield Defendant Campos 5 from damages for civil liability because it is both obvious and clearly established under 6 Ninth Circuit law that a failure to respond to emergency medical requests is a violation of 7 constitutional rights. Ninth Circuit law clearly established that a jail deputy must provide 8 an emergency medical response to an inmate suffering from an acute medical condition. 9 For example, in Clement v. Gomez, the Ninth Circuit clearly established that it is unlawful 10 for a prison official to ignore calls for emergencies by inmates or to “intentionally deny or 11 delay access to medical care.” Clement v. Gomez, 298 F.3d 898, 907 (9th Cir. 2002). 12 There, prison officials failed to provide medical help to several inmates who called out to 13 prison officials for medical attention from the effects of pepper spray. Id. Based on the 14 prison officials’ refusal to respond to prisoners who “made repeated requests for attention,” 15 the Ninth Circuit found that the prison officials may be acting in deliberate indifference to 16 prisoners’ serious medical needs. Id. at 905. Ninth Circuit law also clearly established that 17 a prison official violates a prisoner’s right to medical care when he “is aware than an inmate 18 is suffering from a serious acute medical condition” but “stands idly by rather than 19 responding with reasonable diligence to treat the condition.” Sandoval v. County of San 20 Diego, 985 F.3d 657 (9th Cir. 2021) (relying on Hunt v. Dental Dept., 865 F.2d 198, 2099 21 (9th Cir. 1989) for this clearly established law). Even in the absence of prior case law, 22 however, qualified immunity does not protect an officer who commits an “obvious” 23 instance of constitutional misconduct. Hope v. Pelzer, 536 U.S. 730, 741 (2002) 24 (handcuffing inmate to hitching post for seven hours without regular water or bathroom 25 breaks was “obvious” Eighth Amendment violation that there need not be materially 26 similar case for the right to be clearly established). Thus, even if the specific conduct in 27 question “has not previously been held unlawful,” the general constitutional rule “may still 28 apply with obvious clarity to the specific conduct in question.” C.B. v. City of Sonora, 769 1 F.3d 1005, 1026–27 (9th Cir. 2014) (seizing a schoolchild who has not committed any 2 wrongdoing or posed any threat is an obvious violation “even without on-point case law”). 3 First, the Court found that clearly established Ninth Circuit law put a reasonable cell 4 tower deputy on notice that he must respond to an emergency intercom call to provide 5 medical attention to an inmate in need. Under Plaintiff’s version of the facts, Deputy 6 Campos failed to provide emergency medical help to Plaintiff despite knowing that inmates 7 were shouting for help and the emergency intercom system was going off. Specifically, 8 Plaintiff’s cellmates pressed the emergency intercom button and shouted for help after 9 Plaintiff’s fall. 3 Pl. App. 00293, 00319. The emergency intercom button was working 10 because Deputy Campos checked to make sure the emergency intercom was functioning 11 before each shift. 3 Pl. App. 00271-72. Despite the functioning emergency intercom 12 button, Deputy Campos did not respond to Plaintiff’s medical distress. Plaintiff did not 13 receive the emergency medical care he needed until other floor deputies found Plaintiff 14 during their routine cell check approximately forty minutes later. See 3 Pl. App. 00264, 15 00307. Given the clearly established law under Clement and Hunt requiring a jail official 16 to provide an emergency medical response to an inmate in acute medical distress, the Court 17 found it was objectively unreasonable for Deputy Campos to not respond to the emergency 18 intercom call. Moreover, even without clearly established law directly on point, the Court 19 found that a cell tower deputy’s failure to respond to an inmate’s emergency call was an 20 obvious instance of constitutional misconduct such that qualified immunity did not apply. 21 Hope, 536 U.S. at 741. Under Plaintiff’s version of the facts, Deputy Campos, whose 22 duties included responding to the emergency intercom system to provide inmates with 23 emergency medical help, failed to respond to the intercom call. Even without prior case 24 law, a reasonable official would still be on notice that such conduct violates constitutional 25 law. Accordingly, the Court denied qualified immunity for Deputy Campos. 26 Having clarified the Court’s rulings denying qualified immunity for Officer 27 Defendants, the Court now turns to examine Plaintiff’s motion to certify as frivolous the 28 interlocutory appeal of these rulings. 1 IV. MOTION TO CERTIFY AS FRIVOLOUS 2 In response to Officer Defendants’ interlocutory appeal, Plaintiff moves to certify 3 the appeal as frivolous so this Court may proceed with trial on all issues. An appeal is 4 frivolous if it is “wholly without merit” or the “results are obvious.” United States v. Kitsap 5 Physicians Serv., 314 F.3d 995, 1003 n.3 (9th Cir. 2002); In re George, 322 F.3d 586, 591 6 (9th Cir. 2003). Stated another way, “[a]n appeal on a matter of law is frivolous where 7 none of the legal points are arguable on their merits.” Neitzke v. Williams, 490 U.S. 319, 8 325 (1989). To determine whether the appeals of Officer Defendants are frivolous, the 9 Court examines whether there is any merit to their qualified immunity argument, under 10 Plaintiff’s version of the facts. The Court will first examine the appeal of Defendants Bravo 11 and Simms, then Defendant Campos, and finally, Defendant Germono. 12 A. Defendants Bravo and Simms Appeal 13 The Court certifies the appeal of Defendants Bravo and Simms as frivolous because 14 there is no merit to the argument that a reasonable jail official in charge of inmate housing 15 and bunk bed assignment would believe that it was lawful to ignore a lower bunk 16 assignment for a detainee with epilepsy. The Akhtar court clearly established an inmate’s 17 right to have a lower bunk when one was required to prevent significant injury resulting 18 from a serious medical condition. Akhtar, 698 F.3d at 1213–14. The Akhtar court further 19 explained that the failure to comply with that right was deliberate indifference. Id. 20 Defendants Bravo and Simms argue that their appeal is not wholly without merit 21 because factual distinctions in Akhtar provide reasonable grounds to challenge the Court’s 22 ruling that their conduct was objectively unreasonable. Specifically, Defendants Bravo 23 and Simms point to the differences in the medical conditions at issue and argue that the 24 Akhtar plaintiff was denied a lower bunk over a longer period of time before he suffered 25 his injury as a result of the denial. The Court disagrees that these constitute meaningful 26 distinctions that lend credibility to their argument. The Akhtar court based its 27 determination that the denial of a lower bunk could violate the Constitution on the fact that 28 the plaintiff had serious medical conditions that could result in further significant injury if 1 not given a lower bunk. Id. at 1213–14. The Akhtar court’s decision did not hinge on the 2 duration of the denial of a lower bunk or the precise nature of the detainee’s malady, but 3 rather on the risk of injury to the inmate based on the serious medical condition. Id. The 4 Court finds that Akhtar sufficiently put Deputies Bravo and Simms on notice that their 5 denial of a lower bunk, for any period of time sufficient to pose a danger to the inmate, 6 may constitute deliberate indifference. Thus, their arguments based on such distinctions 7 as the duration of the denial and the specific underlying medical condition lack merit. 8 Defendants Bravo and Simms further rely on Wheeler v. Marengo, No. 18-CV-360- 9 AJB-WVG, 2020 WL 1545824 (S.D. Cal. Apr. 1, 2020), to contend that it is not wholly 10 meritless to argue that Deputy Bravo and Deputy Simms did not know their conduct was 11 unlawful based on the duration of time that he was denied a lower bunk. In Wheeler, a 12 prisoner plaintiff had a medical chrono for a lower bunk because he was in a cast and 13 crutches. Wheeler, 2020 WL 1545824, at *1. He showed a prison official defendant his 14 medical chrono, the defendant told the plaintiff he would provide him a lower bunk, but 15 then his shift ended before he could do so. Id. The plaintiff did not get a lower bunk bed 16 and laid on the floor because he could not mount his top bunk. Id. Prison employees did 17 not give him a lower bunk until the next evening. Id. Despite the fact that the plaintiff was 18 denied a bunk for approximately twenty-nine hours, the court found no denial of a 19 constitutional right because he did not provide any facts showing that the denial of the bunk 20 caused significant injury or pain as a result and because the defendants eventually gave the 21 inmate his bunk after twenty-nine hours. Id. at *2-3. The Wheeler court’s analysis appears 22 to focus on the lack of resulting injury, rather than whether such denial of a bottom bunk 23 could constitute deliberate indifference to a significant risk from a serious medical 24 condition. As applied to the facts of this case, the Court finds that Wheeler does not support 25 the meritoriousness of Defendants Bravo’s and Simms’s argument that their denial of a 26 bunk in light of the serious medical risk posed by his seizure condition was objectively 27 reasonable. 28 1 B. Defendant Campos Appeal 2 The Court also certifies the appeal of Defendant Campos as frivolous because it is 3 wholly meritless to argue that a reasonable cell tower deputy would believe it was lawful 4 to ignore the emergency intercom system and repeated inmate shouts for help. First, it is 5 beyond debate that a reasonable prison official in charge of responding to emergency 6 intercom calls would know that ignoring an emergency intercom call would violate a 7 detainee’s rights to be provided emergency medical care. See Hope, 536 U.S. at 739–41 8 (holding that there does not need to be on point case to overcome qualified immunity if 9 violation was “obvious”). Second, Ninth Circuit law clearly established that a deputy may 10 not ignore inmate shouts for help or delay an emergency medical response. Clement, 298 11 F.3d at 907. It is therefore baseless to argue that a reasonable cell tower deputy, whose job 12 duties include responding to emergency intercom calls, would believe that it was lawful to 13 ignore the emergency intercom and inmates’ repeated shouts for emergency help. 14 Deputy Campos argues that the appeal is not meritless because the facts show that 15 the emergency intercom was broken and there is no clearly established right to have a 16 functional intercom system. In making this argument, Deputy Campos relies only on 17 disputed material evidence, not the facts taken in the light most favorable to Plaintiff as 18 required by law at this stage of the proceedings. Tuuamalemalo v. Greene, 946 F.3d 471, 19 476 (9th Cir. 2019) (resolving all disputes of fact and credibility on summary judgment in 20 favor of the plaintiff and drawing all reasonable inferences in his favor). Deputy Campos’s 21 argument that the emergency intercom was broken depends on resolving factual disputes 22 in his own favor, which is prohibited at this procedural juncture. It therefore lacks merit. 23 Under Plaintiff’s version of the facts, Deputy Campos was reasonably on notice that his 24 intentional failure to respond to the emergency intercom system, which prevented Plaintiff 25 from receiving emergency medical care, constituted an obvious instance of constitutional 26 misconduct as well as deliberate indifference based under clearly established law. For the 27 above reasons, the Court finds no merit to Deputy Campos’s appeal. 28 1 C. Defendant Germono Appeal 2 The Court declines to certify the appeal of Defendant Germono as frivolous. The 3 Court stands by its decision denying Nurse Germono qualified immunity from Plaintiff’s 4 Section 1983 claim, based on the cases explained above. However, the Court recognizes 5 that the state of the case law at the time of the incident may give rise to some colorable 6 argument that a reasonable nurse could make a reasonable mistake under the circumstances 7 she faced. 8 Accordingly, the Court grants Plaintiff’s motion to certify as frivolous with regard 9 to Defendants Francisco Bravo, Christopher Simms, and Michael Campos, and denies the 10 motion with regard to Defendant Macy Germono. The Court therefore retains jurisdiction 11 to proceed with trial over the appealed issues pertaining to Defendants Bravo, Simms, and 12 Campos. The Court does not retain jurisdiction over the appealed issues as to Defendant 13 Germono. 14 V. MOTION TO STAY 15 Defendants request that, while the interlocutory appeal of Officer Defendants 16 remains pending, the Court stay the other claims against Officer Defendants and the claims 17 against Supervisory Defendants and the County. Given its above ruling, the Court weighs 18 the competing interests between proceeding with trial as to all the defendants except for 19 Nurse Germono or staying the entire action. 20 A district court has the inherent authority to stay proceedings before it. Rohan ex 21 rel. Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003), abrogated on other grounds by 22 Ryan v. Gonzales, 568 U.S. 57 (2013). The power to stay is “incidental to the power 23 inherent in every court to control the disposition of the causes on its docket with economy 24 of time and effort for itself, for counsel and for litigants.” Landis v. North Am. Co., 299 25 U.S. 248, 254 (1936). In considering whether to stay proceedings pending an interlocutory 26 appeal, the court weighs the competing interests affected by the granting or denial of a stay: 27 (1) “the possible damage which may result from the granting of a stay,” (2) “the hardship 28 or inequity which a party may suffer in being required to go forward,” and (3) “the orderly 1 course of justice measured in terms of the simplifying or complicating of issues, proof, and 2 questions of law which could be expected to result from a stay.” Lockyer v. Mirant Corp., 3 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th 4 Cir. 1962)). 5 During oral argument, Plaintiff represented that he would dismiss his claims against 6 Defendant Germono and proceed only against the remaining Defendants. In such a 7 scenario, the Court finds that the competing interests weigh in favor of proceeding with 8 trial. For one, a balance of the hardships and equities weighs against staying the case. 9 Plaintiff filed this action nearly four years ago and would suffer hardship from a years-long 10 delay pending resolution of the interlocutory appeal. Although Defendants Bravo, Simms, 11 and Campos would have to sit for trial while their qualified immunity appeal is pending, 12 this Court has certified their appeal as frivolous and finds they would not face hardship 13 sitting for trial now as compared to later. Second, a stay would not serve the interests of 14 judicial efficiency given Plaintiff’s representation that he would dismiss Nurse Germono 15 from the action entirely. Although proceeding with trial piecemeal—that is, first with the 16 defendants except Nurse Germono, and then with Nurse Germono—would potentially 17 have required duplicative evidence regarding damages or other issues, the stipulated 18 dismissal of Nurse Germono resolves this judicial efficiency concern. Because the balance 19 of equities weighs in favor of proceeding with trial, the Court exercises its discretion and 20 DENIES Defendants’ motion to stay. The Court ORDERS Plaintiff to file a notice on the 21 record confirming his plans to dismiss Defendant Germono from the action and proceed 22 with trial on the remaining Defendants alone. 23 // 24 // 25 // 26 27 28 l VI. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Plaintiff’s motion to certify 3 || the interlocutory appeals of Defendants Francisco Bravo, Christopher Simms, and Michael 4 || Campos as frivolous and DENIES Plaintiff's motion as to Defendant Macy Germono. The 5 Court DENIES Defendants’ motion to stay. 6 IT IS SO ORDERED. 7 ||Dated: February 21, 2023 8 ? Ho orgbfe Tinsook Ohta 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28