LeMoon v. California Forensic Medical Group, Inc.

Opinion

1 2

Case No. 20-cv-02552-PJH 7 Plaintiff,

8 v. ORDER RE MOTIONS FOR SUMMARY JUDGMENT GROUP, INC., et al., Re: Dkt. Nos. 107, 107-9, 108, 109, 10 Defendants. 115, 117, 118, 123 11

12 13 Defendants’, the County of Solano and Sheriff Thomas S. Ferrara (collectively, 14 “County defendants”), motion for summary judgment came on for hearing before this 15 court on October 7, 2021. The California Forensic Medical Group (“CFMG”) defendants’, 16 CFMG, Wellpath, LLC (“Wellpath”)1, John Maike, Michelle Bowie, Marni Ballesteros, Dr. 17 Donald Purcell, and Dr. Dinesh Nagar, separate motion for summary judgment came on 18 for hearing before this court on October 7, 2021.2 Plaintiff appeared through her counsel, 19 Jeff Price. The County defendants appeared through their counsel, Temitayo Peters and 20 Gregory Thomas. The CFMG defendants appeared through their counsel, Jerome 21 Varanini. Having read the papers filed by the parties and carefully considered their 22 arguments and the relevant legal authority, and good cause appearing, the court hereby 23 GRANTS IN PART the County defendants’ motion for summary judgment and DENIES 24 the CFMG defendants’ motion for summary judgment except as indicated below for the 25 following reasons. 26

27 1 Wellpath is the successor organization of CFMG. 2 A. Factual History 3 This case concerns decedent Jeremey Conaway’s detention and incarceration in 4 the Solano County’s Justice Center Detention Facility (“JCDF”) from March 4, 2019 when 5 he was arrested to April 10, 2019 when he committed suicide in his cell. 6 Conaway’s medical records show a long history of drug and alcohol abuse, 7 homelessness, and depression. Price Decl. (Dkt. 114-1) at 86–127, 174, 185–87.3 8 Before his death, Conaway had been incarcerated on fourteen separate occasions, and 9 JCDF medical records show that Conaway had previously been prescribed 10 antidepressants by CFMG defendant Dr. Purcell as recently as September 2018. Id. at 11 122, 185–87. Other JCDF medical records show that Conaway had previously admitted 12 to being suicidal and depressed. Id. at 84, 176–77. 13 On March 4, 2019, Conaway was arrested and booked at JCDF. During his 14 intake, a nurse noted that Conaway was "non-verbal” and would not “answer any 15 questions." Id. at 135–38. According to his medical log, Conaway was placed in 16 administrative separation because he refused to speak to anyone. Id. at 181. 17 Administrative separation occurs when an inmate refuses to partake in the intake 18 process, and “[a]fter the inmate has been given the opportunity to reconsider his/her 19 decision and still refuses to participate in the interview, the inmate [is] assigned to” 20 administrative separation until his housing assignment can be determined. Id. at 203–04. 21 On March 19, 2019, a CFMG staff member wrote in Conaway’s medical records 22 that he repeatedly refused to get out of bed and that she was concerned Conaway “may 23 be deteriorating.” Id. at 180. She referred Conaway to “mental health” for an evaluation. 24 Id. On March 25, 2019, March 27, 2019, and March 28, 2019, Conaway received welfare 25 checks (visits from CFMG staff). Id. at 118–19. On March 25, 2019, CFMG defendant 26 Michelle Bowie noted that Conaway was depressed and refused mental health medicine. 27 1 Id. at 119–20. Bowie asked Conaway how he would let staff know if he was feeling 2 suicidal, and Conaway shrugged. Id. at 120. On April 1, 2019, CFMG staff member Lisa 3 Harwood inspected Conaway’s cell and found that he had two red marks on his arm. Id. 4 at 117. When Harwood discussed the need for mental health observation (“MHO”) with 5 Conaway, Conaway indicated that the marks on his arm were painted on, and he tried to 6 rub them off with a towel to no effect. Id. at 117–18. Harwood then referred Conaway for 7 MHO. Id. at 118. 8 On April 1, 2019, Conaway was placed under MHO for his refusal to speak. Id. at 9 117–18. According to the Solano County Sheriff's Office (“SCSO”) policy 9.012, MHO is 10 a type of special management of inmate observation. Id. at 80. The purpose of policy 11 9.012 “is to provide guidance to custody staff regarding special management of inmates 12 considered to be a threat to their own safety or the safety of others.” Id. There are three 13 kinds of inmate observations, one of which is MHO. First, “sobering observation” is 14 supervision of an inmate who poses a threat to his or her own safety or the safety of 15 others due to intoxication. Id. Second, “safety/suicide observation” is increased 16 supervision of “an inmate who displays behavior resulting in the destruction of property or 17 reveals an intent or suspicion to cause physical harm to self or others.” Id. 18 Safety/suicide observations take “place in a safety cell whenever possible.” Id. And 19 MHO is “supervision of an inmate, as a precaution against self-injury or to monitor 20 unusual or bizarre behavior.” Id. at 81. An “inmate on MHO status must be moved to a 21 cell located in the infirmary area to maximize the ability of medical personnel and staff to 22 observe and monitor them.” Id. 23 Conaway was seen by CFMG staff over fifteen times while under MHO status. Id. 24 at 107–18. He was moved to a cell with a bunk bed near the infirmary where he was 25 housed on his own. Dkt. 114-1 at 21; Ballesteros Dep. 44:18-25 (Dkt. 114-2 at 7); 26 Castillo 30(b)(6) Dep. 87:13-88:7 (Dkt. 114-2 at 69). On April 3, 2019, CFMG defendant 27 Dr. Nagar wrote in Conaway’s medical records that she would notify the mental health 1 CFMG defendant Bowie asked Conaway if he wanted anxiety medicine or 2 antidepressants, and he nodded, “no.” Id. at 110. Conaway was also asked if he was 3 having thoughts of harming himself, and Conaway shook his head, “no.” Id. at 110–11. 4 On April 8, 2019, CFMG defendant Ballesteros visited Conaway in his cell. Id. at 108–09. 5 During the visit, Conaway wrote, “MEDS?” on a piece of paper. Id. at 108. Ballesteros 6 created a “priority 1” task—an urgent task—to have Conaway assessed for medication 7 management. Id. The task stated the following: “p[lease] assess for meds. I[nmate] 8 remains on MHO and was selectively mute, however during this writer’s assessment, he 9 wrote down ‘Meds?’” Id. On April 9, 2019, CFMG defendant Dr. Purcell did not respond 10 to the “priority 1” task, although he said the task was on his list. Purcell Dep. 37:18-21 11 (Dkt. 114-2 at 143). On April 10, 2019, Conaway hung himself with bedsheets from the 12 top bunk of his cell. Dkt. 114-1 at 178. 13 B. Procedural History 14 Plaintiff filed her original complaint on April 13, 2020, and she filed her first 15 amended complaint on August 6, 2020. Dkt. 1, 26. Plaintiff voluntarily dismissed one of 16 the County defendants and two CFMG defendants. Dkt. 33, 56, 75. Plaintiff filed her 17 operative complaint, the second amended complaint (“SAC”), on July 7, 2021. Dkt. 87. 18 After plaintiff filed her SAC, she voluntarily dismissed two additional CFMG defendants. 19 Dkt. 99, 105. Plaintiff also voluntarily dismissed various claims against the County 20 defendants and some CFMG defendants. Dkt. 106. And plaintiff voluntarily dismissed 21 claims against both sets of defendants in her briefings. See October 7, 2021 Tr. of 22 Proceedings (Dkt. 127). As a result, plaintiff has considerably reduced her claims in this 23 suit and the number of parties in this action. 24 Regarding the County defendants, there remains three claims against Sheriff 25 Ferrara and a single claim against the County. Id. at 5. Claim 1 is a § 1983 action 26 asserted against Sheriff Ferrara for cruel and unusual punishment and deliberate 27 indifference to serious medical needs in violation of the Eighth and Fourteenth 1 deprivation of substantive due process rights in violation of the Fourteenth Amendment. 2 Id. And claim 3 is a § 1983 action asserted against Sheriff Ferrara and the County for 3 municipal and supervisory liability. Id. 4 Plaintiff asserts nine claims against one or more of the remaining eight CFMG 5 defendants. Id. at 17. Claim 1 is a § 1983 action asserted against all represented 6 CFMG defendants for cruel and unusual punishment and deliberate indifference to 7 serious medical needs in violation of the Eighth and Fourteenth Amendments. Id. Claim 8 2 is a § 1983 action against all represented CFMG defendants for the deprivation of 9 plaintiff’s right to substantive due process in violation of the Fourteenth Amendment. Id. 10 Claim 3 is a § 1983 action against CFMG, Wellpath, Dr. Nagar, Dr. Purcell, and Dr. Herr 11 for municipal and supervisory liability. Id. at 18. Claim 4 is a California Government 12 Code § 845.6 action against CFMG, Wellpath, Dr. Nagar, Dr. Purcell, and Bowie for 13 failure to furnish medical care. Id. at 19. Claim 5 is a Bane Act (Cal. Civ. Code § 52.1) 14 action against all represented CFMG defendants. Id. at 20. Claim 6 is a state action 15 against CFMG, Wellpath, and Dr. Herr for negligent supervision, training, hiring, and 16 retention. Id. at 20. Claim 7 is a state negligence action against all represented CFMG 17 defendants and Dr. Herr. Id. Claim 8 is an American with Disabilities Act and 18 Rehabilitation Act action against CFMG and Wellpath. Id. And claim 9 is a California 19 wrongful death action against all represented CFMG defendants and Dr. Herr. Id. 20 These claims are discussed in full below. 21 DISCUSSION 22 A. Legal Standard 23 A party may move for summary judgment on a “claim or defense” or “part of . . . a 24 claim or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “there 25 is no genuine dispute as to any material fact and the movant is entitled to judgment as a 26 matter of law.” Id. 27 A party seeking summary judgment bears the initial burden of informing the court 1 of the basis for its motion, and of identifying those portions of the pleadings and discovery 2 responses that demonstrate the absence of a genuine issue of material fact. See 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might 4 affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 5 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a 6 reasonable jury to return a verdict for the nonmoving party. Id. 7 On an issue where the nonmoving party will bear the burden of proof at trial, the 8 moving party may carry its initial burden of production by submitting admissible “evidence 9 negating an essential element of the nonmoving party’s case,” or by showing, “after 10 suitable discovery,” that the “nonmoving party does not have enough evidence of an 11 essential element of its claim or defense to carry its ultimate burden of persuasion at 12 trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 13 2000); see Celotex, 477 U.S. at 324–25 (moving party can prevail merely by pointing out 14 to the district court that there is an absence of evidence to support the nonmoving party’s 15 case). 16 When the moving party has carried its burden, the nonmoving party must respond 17 with specific facts, supported by admissible evidence, showing a genuine issue for trial. 18 Fed. R. Civ. P. 56(c), (e). But allegedly disputed facts must be material—the existence of 19 only “some alleged factual dispute between the parties will not defeat an otherwise 20 properly supported motion for summary judgment.” Anderson, 477 U.S. at 247–48. 21 When deciding a summary judgment motion, a court must view the evidence in the 22 light most favorable to the nonmoving party and draw all justifiable inferences in its favor. 23 Id. at 255; See Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). 24 B. Analysis 25 1. The County Defendants’ Motion for Summary Judgment 26 The County defendants move for summary judgment on claims 1, 2, and 3 of 27 plaintiff’s SAC. Dkt. 107. The County defendants also argue that Sheriff Ferrara is 1 a. Deliberate Indifference 2 “Inmates who sue prison officials for injuries suffered while in custody may do so 3 under the Eighth Amendment's Cruel and Unusual Punishment Clause or, if not yet 4 convicted, under the Fourteenth Amendment's Due Process Clause.” Castro v. Cty. of 5 Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016). “Under both clauses, the plaintiff 6 must show that the prison officials acted with ‘deliberate indifference.’” Id. at 1068. 7 For the Fourteenth Amendment, a pretrial detainee must show: “(1) The defendant 8 made an intentional decision with respect to the conditions under which the plaintiff was 9 confined [including a decision with respect to medical treatment]; (2) Those conditions put 10 the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take 11 reasonable available measures to abate that risk, even though a reasonable official in the 12 circumstances would have appreciated the high degree of risk involved—making the 13 consequences of the defendant's conduct obvious; and (4) By not taking such measures, 14 the defendant caused the plaintiff's injuries.” Sandoval v. Cty. of San Diego, 985 F.3d 15 657, 669 (9th Cir. 2021) (citing Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 16 2018)) (internal quotation marks omitted). To satisfy the third element, a plaintiff “must 17 show that the defendant's actions were objectively unreasonable, which requires a 18 showing of more than negligence but less than subjective intent—something akin to 19 reckless disregard.” Id. (internal quotation marks omitted). 20 To prove deliberate indifference under the Eighth Amendment, on the other hand, 21 a plaintiff must show that an officer knew of and disregarded “an excessive risk to inmate 22 health or safety; the official must both be aware of facts from which the inference could 23 be drawn that a substantial risk of serious harm exists, and he must also draw the 24 inference.” Castro, 833 F.3d at 1068 (internal quotation marks omitted). For example, an 25 individual defendant violates the “Eighth Amendment if [he is] deliberately indifferent to a 26 prisoner's serious medical needs.” Peralta v. Dillard, 744 F.3d 1076, 1081–82 (9th Cir. 27 2014) (internal quotation marks and alterations omitted). A “medical need is serious if 1 infliction of pain.” Id. (internal quotation marks and alterations omitted). 2 The County defendants argue Sheriff Ferrara is entitled to summary judgment on 3 claim 1 for cruel and unusual punishment and deliberate indifference to serious medical 4 needs. Both the Fourteenth and Eighth Amendment standards apply here. Conaway 5 was a detainee at JCDF from March 4, 2019 to April 4, 2019 and was thus protected 6 under the Fourteenth Amendment during this period. He continued to be incarcerated at 7 JCDF from April 5, 2019 to April 10, 2019, following his sentencing on April 5, 2019, and 8 was thus protected under the Eighth Amendment. RJN, Ex. G at 5:21–6:19 (Dkt. 107-9). 9 Still, plaintiff has not proven that Sheriff Ferrara acted with deliberate indifference under 10 either standard. 11 It is undisputed that Sheriff Ferrara did not interact or engage with Conaway 12 before Conaway committed suicide. Indeed, Sheriff Ferrara was not aware of Conaway’s 13 presence in the jail until he was notified of Conaway’s death. As such, plaintiff cannot 14 prove that Sheriff Ferrara knew of and disregarded Conaway’s health risks. For the 15 same reason, plaintiff cannot show that Sheriff Ferrara made an intentional decision that 16 increased the substantial risk of harm to Conaway. Accordingly, Sheriff Ferrara, in his 17 individual capacity is entitled to summary judgment on this claim. 18 Plaintiff also brings this claim against Sheriff Ferrara in his supervisory (or official) 19 capacity with respect to plaintiff’s claims based on unconstitutional County and CFMG 20 policies and policy omissions. The court addresses this claim with plaintiff’s claim 3 for 21 municipal and supervisory liability, as the claims are duplicative. 22 b. Substantive Due Process 23 The Due Process Clause of the Fourteenth Amendment protects parents’ “liberty 24 interest in the companionship and society of their children.” Wilkinson v. Torres, 610 25 F.3d 546, 554 (9th Cir. 2010). “The substantive due process right to family integrity or to 26 familial association is well established.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 27 1079 (9th Cir. 2011). A parent “has a fundamental liberty interest in companionship with 1 with this liberty interest, and indeed the violation of the right to family integrity is subject to 2 remedy under § 1983.” Id. 3 To prevail on a substantive due process claim under the Fourteenth Amendment, 4 a plaintiff “must show that an officer’s conduct ‘shocks the conscience.’” Nicholson v. 5 City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019). The “critical consideration is 6 whether the circumstances are such that actual deliberation is practical.” Id. (internal 7 quotation marks and alterations omitted). If there is deliberation, “an officer’s ‘deliberate 8 indifference’ may suffice to shock the conscience and the plaintiff may prevail by showing 9 that the officer disregarded a known or obvious consequence of his action.” Id. at 692– 10 93 (internal quotation marks and alterations omitted). 11 The County defendants argue Sheriff Ferrara is entitled to summary judgment on 12 claim 2. The parties agree plaintiff’s due process claim hinges on her claim that Sheriff 13 Ferrara acted with deliberate indifference toward Conaway’s medical needs. Dkt. 114 at 14 26. As previously stated, plaintiff has not proven that Sheriff Ferrara acted with 15 deliberate indifference because Sheriff Ferrara did not interact with Conaway at all and 16 was not aware of any alleged deprivations. Accordingly, Sheriff Ferrara is entitled to 17 summary judgment on plaintiff’s claim 2. 18 c. Qualified Immunity 19 The doctrine of qualified immunity “protects government officials from liability for 20 civil damages insofar as their conduct does not violate clearly established statutory or 21 constitutional rights of which a reasonable person would have known.” Pearson v. 22 Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Qualified 23 immunity is proper unless a plaintiff can establish that an officer “committed a 24 constitutional violation” and an officer’s “specific conduct violated ‘clearly established’ 25 federal law.” Sharp v. Cty. of Orange, 871 F.3d 901, 909 (9th Cir. 2017). An “officer 26 cannot be said to have violated a clearly established right unless the right's contours 27 were sufficiently definite that any reasonable official in the defendant's shoes would have 1 (9th Cir. 2020) (internal quotation marks omitted). But the court’s first consideration is 2 where the officer “actually violated a constitutional right based on the record and [] 3 alleged facts.” Id. Only if the court concludes that an officer did violate a constitutional 4 right, then the court would proceed “to decide if the constitutional right was clearly 5 established at the time of the officer’s alleged misconduct.” Id. (internal quotation marks 6 and alterations omitted). 7 The record does not establish that Sheriff Ferrara committed a constitutional 8 violation. Plaintiff’s argument for denying Sheriff Ferrara qualified immunity is that Sheriff 9 Ferrara acted with deliberate indifference with respect to Conaway’s care. As the court 10 has already ruled, plaintiff has not shown that Sheriff Ferrara acted with deliberate 11 indifference because Sheriff Ferrara did not interact with Conaway nor was Sheriff 12 Ferrara informed of any potential violations associated with Conaway’s care. 13 Accordingly, the court GRANTS qualified immunity to Sheriff Ferrara with respect to 14 plaintiff’s claims 1 and 2. 15 d. Municipal and Supervisory Liability 16 Local governments are "persons" subject to liability under 42 U.S.C. § 1983 where 17 an official policy or custom causes a constitutional tort. See Monell v. Dep't of Social 18 Servs., 436 U.S. 658, 690 (1978). But “municipalities may only be held liable under 19 section 1983 for constitutional violations resulting from official county policy or custom.” 20 Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (internal quotation 21 marks omitted). To impose municipal liability under § 1983, a “plaintiff must prove: (1) 22 [the inmate] had a constitutional right of which he was deprived; (2) the municipality had a 23 policy; (3) the policy amounts to deliberate indifference to his constitutional right; and (4) 24 the policy is the moving force behind the constitutional violation.” Gordon v. Cty. of 25 Orange, 6 F.4th 961, 973 (9th Cir. 2021) (internal quotation marks omitted). A plaintiff 26 can show municipal liability in three ways. First, “a local government may be held liable 27 when it acts pursuant to an expressly adopted official policy.” Id. (internal quotation 1 custom.” Id. (internal quotation marks omitted). Third, “a local government may be held 2 liable under Section 1983 when the individual who committed the constitutional tort was 3 an official with final policy-making authority or such an official ratified a subordinate's 4 unconstitutional decision or action and the basis for it.” Id. at 974 (internal quotation 5 marks omitted). These “policies can include written policies, unwritten customs and 6 practices, failure to train municipal employees on avoiding certain obvious constitutional 7 violations, and, in rare instances, single constitutional violations [that] are so inconsistent 8 with constitutional rights that even such a single instance indicates at least deliberate 9 indifference of the municipality.” Benavidez, 993 F.3d at 1153 (internal citation omitted). 10 Thus, a municipality is liable under § 1983 where its policy, custom, or practice is “the 11 moving force behind the constitutional violation.” City of Canton, Ohio v. Harris, 489 U.S. 12 378, 379 (1989). 13 Under § 1983, “supervisory officials are not liable for actions of subordinates on 14 any theory of vicarious liability.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) 15 (internal quotation marks omitted); see Palmer v. Vasquez, 696 F. App'x 782, 784 (9th 16 Cir. 2017). “A supervisor may be liable only if (1) he or she is personally involved in the 17 constitutional deprivation, or (2) there is ‘a sufficient causal connection between the 18 supervisor's wrongful conduct and the constitutional violation.” Crowley, 734 F.3d at 977 19 (internal quotation marks omitted). “Under the latter theory, supervisory liability exists 20 even without overt personal participation in the offensive act if supervisory officials 21 implement a policy so deficient that the policy itself is a repudiation of constitutional rights 22 and is the moving force of a constitutional violation.” Id. (internal quotation marks and 23 alterations omitted). 24 Plaintiff contends that the County and Sheriff Ferrara are both responsible for the 25 implementation and execution of County and CFMG policies and for policy omissions that 26 were the moving force behind Conaway’s suicide. The County agrees that it is liable for 27 any constitutional deprivations caused by CFMG policy, practice, or custom, but it 1 at 22, 18. 2 Given the inadequate and confusing nature of the briefing in this matter by CFMG, 3 which the County joined, the court is unable to fashion a complete ruling as to the 4 County’s municipal liability and Sheriff Ferrara’s supervisory liability for acts or omissions 5 of CFMG without additional briefing from the parties. Nevertheless, the court has 6 determined that six of the eight policies or omissions raised by plaintiff do not survive the 7 County defendants’ motion for summary judgment. 8 First, plaintiff contends the County has a policy of placing suicidal inmates under 9 MHO and housing them in cells with suicide hazards, such as bunk beds with bedsheets. 10 Dkt. 114 at 17. But plaintiff misrepresents the County’s policy. SCSO 9.012 has three 11 types of special observations, one of which is “safety/suicide observation.” Dkt. 114-1 at 12 80–81. Suicidal inmates are placed “in a safety cell whenever possible.” Id. at 80. MHO, 13 on the other hand, is meant to capture another population of inmates that need 14 observations. MHO is “supervision of an inmate, as a precaution against self-injury or to 15 monitor unusual or bizarre behavior.” Id. at 81. MHO under SCSO 9.012 does not 16 require that an inmate be housed alone in a cell with a bunk bed. Indeed, the policy only 17 states that an “inmate on MHO status must be moved to a cell located in the infirmary 18 area to maximize the ability of medical personnel and staff to observe and monitor them.” 19 Id. Accordingly, the court grants summary judgment to the County defendants as it 20 relates to this so-called policy. 21 Second, plaintiff argues that defendants failed to train mental health staff on the 22 MHO policy. Dkt. 114 at 20. Specifically, she contends that defendants failed to train 23 CFMG staff to visit MHO inmates every eight hours. Id. Plaintiff argues that the failure to 24 follow the policy was the moving force behind Conaway’s death. Id. While the evidence 25 is not clear as to whether CFMG staff visited Conaway every eight hours while he was 26 under MHO status, plaintiff has not presented evidence that the County defendants’ 27 failure to train amounted to deliberate indifference. A failure to train claim requires a 1 Thompson, 563 U.S. 51, 62 (2011). Plaintiff has not shown that the County defendants 2 had knowledge that CFMG staff members were regularly failing to visit inmates every 3 eight hours. And plaintiff has not shown such a pattern of similar constitutional violations. 4 Indeed, plaintiff did not state that suicides occurred at the jail under the same 5 circumstances as here, namely, with an inmate under MHO status who was not visited 6 every eight hours. Thus, plaintiff cannot meet her burden with respect to this practice. 7 Plaintiff likewise fails on meeting her burden on supervisory liability. For 8 supervisory liability, plaintiff must show that Sheriff Ferrara was “deliberately indifferent to 9 the need to train subordinates, and the lack of training actually caused the constitutional 10 harm or deprivation of rights.” Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th 11 Cir. 2014). That is, plaintiff must show that Sheriff Ferrara “disregarded the known or 12 obvious consequence that a particular omission in their training program would cause 13 municipal employees to violate citizens' constitutional rights.” Id. (internal quotation 14 marks and alterations omitted). Plaintiff cannot make this showing because there is no 15 evidence that Sheriff Ferrara had knowledge of policy violations. And two state entities 16 independently audited the jail and determined that CFMG was meeting its health 17 administrator obligations under Title 15 of the California Code Regulations and other 18 applicable laws at the time of Conaway’s death. Ferrara Decl. ¶¶ 9–15, Exs. A–D (Dkt. 19 107-4). Thus, there is no evidence that Sheriff Ferrara knew there was an issue of lack 20 of training. 21 Third, plaintiff asserts that had CFMG had its own MHO policy, Conaway’s suicide 22 could have been averted. Dkt. 114 at 20–21. But CFMG has its own policies on mental 23 health and its own guidelines on suicide prevention. Dkt. 114-1 at 226–30, 232–39. In 24 other words, CFMG is not neglecting inmate mental health, just because it does not have 25 a specific “MHO” policy. Nonetheless, the Ninth Circuit has consistently “found that a 26 county's lack of affirmative policies or procedures to guide employees can amount to 27 deliberate indifference, even when the county has other general policies in place.” Long 1 that CFMG has a need for an MHO policy. For example, she does not point to inmate 2 deprivations or constitutional violations that have occurred because CFMG lacked an 3 MHO policy. See Long, 442 F.3d at 1190 (plaintiff created a triable issue of fact 4 regarding the County’s failure to implement a policy for the transfer of medically unstable 5 patients). Moreover, CFMG staff refer to the “MHO” policy and related procedures in 6 Conaway’s medical records, meaning that CFMG staff were aware of, and were applying, 7 the County’s MHO policy. Thus, plaintiff cannot prove that CFMG’s lack of a MHO policy 8 was the moving force behind Conaway’s suicide when Conaway’s medical records show 9 that the County’s MHO policy was being enforced along with CFMG’s own mental health 10 policies. 11 Fourth, plaintiff asserts that had CFMG required psychological consultations of 12 MHO inmates who posed risks to themselves, Conaway’s suicide could have been 13 prevented. Dkt. 114 at 21. But plaintiff cannot show that this alleged policy omission was 14 the moving force behind Conaway’s suicide. The MHO policy already requires mental 15 health staff to check up on MHO inmates regularly. Dkt. 114-1 at 83. Conaway was 16 asked several times if he wanted medication, and he refused. Id. at 110, 120. Plaintiff 17 has not shown that Conaway would have broken his silence and accepted medical care if 18 CFMG required a psychological consultation. Thus, plaintiff has not shown that had 19 CFMG required psychological consultations, Conaway would have accepted medical 20 care and would not thereafter have committed suicide. Nor has plaintiff shown that this 21 policy omission has resulted in injury to other inmates and thus amounted to deliberate 22 indifference. Accordingly, summary judgment for the County defendants is appropriate 23 with respect to this policy omission. 24 Fifth, plaintiff asserts that the County has a practice of housing suicidal inmates in 25 cells with bunk beds and sheets, which permit inmates to hang themselves. Dkt. 114 at 26 24. Plaintiff notes that a former inmate, Douglas Turner, hung himself from a bunk bed 27 while he was under MHO status. Id. She contends the County defendants took no 1 does not mandate placing suicidal inmates in cells with bunk beds. Dkt. 114-1 at 80. 2 Indeed, the policy suggests that staff place suicidal inmates in “safety cells” with 3 increased monitoring. Id. Notwithstanding the policy, plaintiff has not shown that the 4 County has a practice of placing suicidal inmates alone in cells with bunk beds. Without 5 more, plaintiff cannot meet her burden at trial. See Gordon, 6 F.4th at 974 (no custom or 6 practice was shown where the record lacks evidence of any other event involving similar 7 conduct or constitutional violations). 8 Sixth, plaintiff asserts that Conaway’s suicide was the result of CFMG failing to 9 require “priority 1” tasks be performed at the “next sick call.” Dkt. 114 at 23. Plaintiff, 10 however, only presents evidence that supports the contrary conclusion. For example, 11 CFMG medical staff testified that “priority 1” tasks are the “highest” priority tasks, are 12 considered “urgent,” and are expected to be addressed at the “next available sick call.” 13 See Ballesteros Dep. 91:14-17 (Dkt. 114-2 at 19); Hornyak Dep. 40:10-25 (Dkt. 114-2 at 14 80); Purcell Dep. 37:7-10 (Dkt. 114-2 at 143). Indeed, tasks are given labels from one to 15 five with one being the highest priority. Hornyak Dep. 40:10-14 (Dkt. 114-2 at 80). 16 Accordingly, plaintiff has not shown that there was no policy requiring urgency for “priority 17 1” tasks. 18 Seventh, plaintiff contends that CFMG had a custom of treating “priority 1” tasks 19 as routine when they should have been treated as “urgent.” Dkt. 114 at 23. Plaintiff 20 contends this practice of treating “priority 1” tasks as routine was the moving force behind 21 Conaway’s death. As previously explained, CFMG policy requires medical personnel to 22 treat “priority 1” tasks as urgent and to address such tasks during the next available sick 23 call. Notwithstanding this policy, however, CFMG staff testify that “priority 1” tasks are 24 not always treated as urgent. Vice Dep. 59:11-24 (Dkt. 114-2 at 50) (“Q. Let’s say there’s 25 a task that is priority number one . . . . how are those supposed to know whether it’s 26 emergent, urgent, or routine? . . . . A. There’s usually a description of what the task is. 27 That’s usually what people see and respond to.”); Maike Dep. 127:2-15 (Dkt. 114-2 at 1 mean? A. I believe that that pops up automatically on all of our sick call lists. I really 2 believe it's something that we don't pay attention to because we treat everything as a 3 priority 1”). Dr. Purcell testified that “priority 1” is “[n]ot necessarily” the highest priority 4 task and that he does not know any CFMG staff that actually use the task priority system. 5 Purcell Dep. 36:21-37:10 (Dkt. 114-2 at 142–43). Here, Dr. Purcell did not address the 6 “priority 1” task request for him to evaluate Conaway for medication, and Conaway 7 committed suicide the next day. Accordingly, in contrast to the other policies and 8 practices noted above, a reasonable jury could conclude that the moving force behind 9 Conaway’s suicide was CFMG’s custom of treating “priority 1” tasks as routine, which in 10 this case meant that Conaway did not receive the medical attention from Dr. Purcell that 11 another CFMG staff member had requested. 12 Finally, plaintiff contends the moving force behind Conaway’s suicide was CFMG’s 13 lack of a policy requiring employees to review an inmate’s prior medical records. Dkt. 14 114 at 22. Conaway’s prior jail records show that he was previously prescribed 15 antidepressants by CFMG defendant Dr. Purcell and that Conaway had admitted to being 16 suicidal and depressed. Dkt. 114-1 at 122, 84, 177. Conaway died a day after Dr. 17 Purcell failed to treat his request for medication with the urgency required for a “priority 1” 18 designation. A reasonable jury could conclude that the moving force behind Conaway’s 19 suicide was CFMG’s failure to require medical staff to review prior inmate medical 20 records to determine Conaway’s medication needs, if any, particularly given his unusual 21 behavior. 22 Thus, the court finds that six of the eight asserted policies, practices, or omissions 23 are either unfounded, do not amount to constitutional violations, or were not the driving 24 force behind a constitutional violation. The court further finds that CFMG’s custom of 25 treating “priority 1” tasks as routine and the absence of a policy requiring staff to review 26 an inmate’s prior medical records could be determined by a reasonable jury to amount to 27 deliberate indifference to Conaway’s serious medical needs and could also be found to 1 supervisory liability might also be found by a reasonable jury. 2 2. CFMG Defendants’ Motion for Summary Judgment 3 The CFMG defendants move for summary judgment on all claims asserted against 4 them.4 As stated during the hearing on this motion, the court DENIES the CFMG 5 defendants’ motion for summary judgment. 6 A “moving party without the ultimate burden of persuasion at trial—usually, but not 7 always, a defendant—has both the initial burden of production and the ultimate burden of 8 persuasion on a motion for summary judgment.” Nissan, 210 F.3d at 1102. In order to 9 carry its burden of production, “the moving party must either produce evidence negating 10 an essential element of the nonmoving party's claim or defense or show that the 11 nonmoving party does not have enough evidence of an essential element to carry its 12 ultimate burden of persuasion at trial.” Id. 13 The CFMG defendants fail to meet their burden on any arguments they raise in 14 favor of summary judgment because they fail to provide any nexus between the claims 15 asserted against them and the law and facts. Indeed, the CFMG defendants fail to even 16 provide a declaration explaining or authenticating any of the evidentiary material provided 17 with their briefing. 18 3. Other Motions 19 a. Evidentiary Objection 20 “A trial court can only consider admissible evidence in ruling on a motion for 21 summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). 22 The Ninth Circuit has repeatedly held that “unauthenticated documents cannot be 23 considered in a motion for summary judgment.” Id. To be admissible, a document must 24 be authentic, meaning there must be “evidence sufficient to support a finding that the 25 item is what the proponent claims it is.” Fed. R. Evid. 901(a). 26

27 4 The CFMG defendants mention Dr. Herr in their briefing, but their attorney stated that 1 Plaintiff objects to the inclusion of evidentiary material submitted with the CFMG 2 defendants’ motion for summary judgment because the materials are unauthenticated. 3 Dkt. 116 at 17. The CFMG defendants fail to attach a declaration attesting to the 4 admissibility of exhibits A, B, E, H, I, J, and K. During the hearing for this motion, the 5 CFMG defendants’ counsel stated that he believed submitting deposition testimony that 6 was cited in plaintiff’s complaint would be sufficient authentication. Dkt. 127 at 33–34. 7 But deposition transcripts are not self-authenticating documents. See Fed. R. Evid. 902. 8 And the CFMG defendants’ exhibits include more than deposition transcripts, such as 9 medical records. Accordingly, plaintiff’s objection is SUSTAINED and the court STRIKES 10 these exhibits. 11 b. Motion to Strike Reply Brief 12 Plaintiff moves to strike the portion of the CFMG defendants’ reply brief that 13 exceeds the page limit. Dkt. 123. This court expressly stated that the CFMG defendants’ 14 reply was limited to 10 pages. Dkt. 104. Yet the CFMG defendants filed a 13-page reply 15 brief notwithstanding the court’s express order. Dkt. 120. The CFMG defendants could 16 have sought leave from the court to file an enlarged brief for good cause, but they did not. 17 Accordingly, the court STRIKES the portion of the CFMG defendants’ reply brief that 18 exceeds 10 pages. 19 c. Administrative Motion to Substitute Transcript 20 Plaintiff, by administrative motion, moves to replace excerpts of the deposition of 21 Michelle Bowie (dkt. 114-2) with corrected excerpts (dkt. 118-1). Dkt. 118. Good cause 22 appearing, the court hereby GRANTS plaintiff’s motion to substitute the deposition 23 transcript of Michelle Bowie. 24 d. Motions to Seal 25 There is a general presumption in favor of public access to federal court records. 26 “[T]he proponent of sealing bears the burden with respect to sealing. A failure to meet 27 that burden means that the default posture of public access prevails.” Kamakana v. City 1 materials submitted with a motion that is “more than tangentially related to the merits of 2 the case”—regardless whether that motion is “technically dispositive”—must demonstrate 3 that there are compelling reasons to keep the documents under seal. Ctr. for Auto Safety 4 v. Chrysler Grp., LLC, 809 F.3d 1092, 1101–02 (9th Cir. 2016). 5 The County defendants seek to seal Conaway’s intake classification 6 questionnaire. Dkt. 108. They contend that if the questionnaire is made public, arrestees 7 will manipulate the classification system and undermine jail security. Id. at 3. But the 8 questions from the intake questionnaire are obvious, such as questions on the inmate’s 9 affect and the inmate’s prior incarceration experience. Dkt. 108-3 at 2–6. The 10 questionnaire does not explain how the jail uses the inmate’s information when it makes 11 housing assignments. Therefore, the County defendants’ fear that the disclosure of the 12 intake questionnaire will lead to security issues is unsubstantiated. Thus, the court 13 DENIES the motion to seal. The court also DENIES plaintiff’s motions to provisionally 14 seal the same questionnaire. Dkt. 115; Dkt. 117. 15 e. Request for Judicial Notice 16 The County defendants seek judicial notice of certified transcripts from three 17 separate proceedings before the Superior Court of California in the matter of The People 18 of the State of California vs. Jeremiah Conaway. 19 A court may take judicial notice of matters that are either “generally known within 20 the trial court's territorial jurisdiction” or “can be accurately and readily determined from 21 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 22 Matters of public record may also be judicially noticed. See Khoja v. Orexigen 23 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). And a court may judicially notice 24 court documents that are already in the public record or have been filed in other courts. 25 See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002). 26 The certified transcripts from the Superior Court proceedings dated March 5, 2019, 27 March 15, 2019, and April 5, 2019 are properly subject to judicial notice as public records 1 for judicial notice. Dkt. 107-9. 2 4. Further Briefing 3 The court has expended considerable effort to understand the briefing, the 4 stipulations and other concessions in this matter, but still has questions. Now that the 5 court has granted partial summary judgment on claims 1 and 2 for Sheriff Ferrara in his 6 individual capacity; granted partial summary judgment for the County defendants on 6 of 7 the 8 asserted policies, practices, or omissions; and found that at least two policies, 8 practices, or omissions survive for trial, the court would like additional briefing on the 9 following: (1) whether Sheriff Ferrara is still liable in his supervisory (or official) capacity 10 on claims 1 and 2 for any constitutional violations committed by the CFMG defendants; 11 (2) whether the court’s findings on the eight asserted policies, practices, or omissions 12 should be applied to the CFMG defendants named in claims 1 and 2, notwithstanding the 13 denial of the CFMG defendants’ motion for summary judgment; and (3) whether the 14 County remains a defendant on all claims asserted against the CFMG defendants given 15 the court’s findings. 16 The court would find it helpful to receive further briefing on these three issues, and 17 hereby orders all parties to simultaneously submit supplemental briefs not to exceed 10 18 pages, by December 30, 2021. The court will issue a further order after review of the 19 supplemental briefs. To accommodate this request for supplemental briefing, the court 20 VACATES the dates for pretrial filings and the pretrial hearing. Additionally, because of 21 Covid-19 restrictions on the number of trials that may proceed in each division, a 22 courtroom is not likely to be available for the February 7, 2022 trial date, which is hereby 23 also VACATED. The court will set a scheduling conference to discuss a new trial date 24 after receipt of the supplemental briefs. 26 Dated: December 3, 2021 27 /s/ Phyllis J. Hamilton