Morales-Alfaro v. CoreCivic, Inc.

• Court: District Court, S.D. California
• Decided: March 12, 2024
• Docket: 3:20-cv-00082
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUBIA MABEL MORALES- Case No.: 20-cv-82-LAB-BGS ALFARO, 12 ORDER: Plaintiff, 13 v. 1) GRANTING CORECIVIC, INC.’S 14 RULE 59(e) MOTION FOR CORECIVIC, INC.; et al., 15 RECONSIDERATION, [Dkt. 146]; and Defendants. 16 2) GRANTING CORECIVIC, INC.’S 17 MOTION FOR SUMMARY JUDGMENT, [Dkt. 95] 18

19 Plaintiff Rubia Mabel Morales-Alfaro (“Morales”), an asylum seeker from 20 El Salvador, filed suit against Defendants CoreCivic, Inc. (“CoreCivic”) and the 21 United States for claims stemming from an alleged miscarriage she suffered on or 22 about January 15, 2018, while in immigration custody. (Dkt. 50). The Court 23 dismissed Morales’s only federal claim against the United States and declined to 24 exercise supplemental jurisdiction over Morales’s remaining state law claims 25 against CoreCivic. (Dkt. 139). CoreCivic now moves for reconsideration of the 26 Court’s prior order pursuant to Federal Rule of Civil Procedure 59(e) and asks the 27 Court to consider its unresolved Motion for Summary Judgment. (Dkt. 146). 28 CoreCivic’s Rule 59(e) motion argues the Court clearly erred when it 1 dismissed Morales’s remaining state law claims because the Court had jurisdiction 2 to consider these claims under 28 U.S.C § 1332 once it dismissed the United 3 States. (Id. at 4–8). Morales doesn’t dispute diversity existed as an independent 4 basis to retain subject matter jurisdiction over her state law claims. CoreCivic 5 therefore requests the Court consider the merits of its Motion for Summary 6 Judgment. (Dkt. 95). Having carefully read and considered all materials in support 7 of and in opposition to the respective motions, the Court rules as follows. 8 I. BACKGROUND 9 Morales is a current resident of Fort Smith, Arkansas and a native and 10 citizen of El Salvador. (Dkt. 50 ¶¶ 5–6; 91 ¶ 3). In March 2017, she and her 11 husband left El Salvador to enter the United States. (Dkt. 91 ¶ 7). They arrived in 12 Tijuana, Mexico, in June of 2017 where they stayed and worked until 13 December 21, 2017. (Id. ¶ 8). Morales learned she was pregnant for a third time 14 while in Tijuana. (Id. ¶ 9). This pregnancy was confirmed on or about 15 December 13, 2017, by Dr. Sergio Mendez Ochoa at a medical clinic in Tijuana. 16 (Id. ¶ 12). Dr. Ochoa recommended Morales return to the clinic within four weeks 17 because she suffered a miscarriage eight months prior. (Id. ¶ 14). Except for 18 taking prenatal vitamins while in Tijuana, Morales didn’t receive any additional 19 medical care before entering the United States. (Id. ¶ 15). 20 Morales, who believed she was eleven-weeks pregnant, unlawfully entered 21 the United States through a hole in the border wall between Tijuana and San 22 Diego on December 21, 2017. (Id. ¶ 16). Morales knew this journey would be 23 “risky” and that she would be arrested, but she thought she would be released 24 quickly after her arrest. (Id. ¶¶ 19–20). Morales was apprehended approximately 25 ten minutes after crossing the border. (Id. ¶ 21). When she was apprehended, she 26 was wearing a thin top, sweater, thin leggings, a hat, shoes, and socks despite 27 freezing cold temperatures. (Id. ¶ 18). She carried only a backpack containing 28 some personal items, but she didn’t bring prenatal vitamins. (Id. ¶ 17). Morales 1 testified at her deposition that the Border Patrol Agent who apprehended her 2 kicked her “[o]n [her] hip” and “in the back.” (Dkt. 117-8 at 57:7–25). 3 After she was apprehended, she was brought to a Border Patrol Station 4 where she remained for two days. (Dkt. 91 ¶ 22). Then, on December 24, 2017, 5 she was transferred to Otay Mesa Detention Center (“OMDC”), a minimum- 6 security detention facility. (Id. ¶¶ 23–24). OMDC is owned and operated by 7 CoreCivic pursuant to an agreement with the United States Immigration and 8 Customs Enforcement (“ICE”). (Id. ¶ 2). At OMDC, she stayed in dorm-style 9 housing in the Alpha Pod, which housed up to 128 low-custody female detainees. 10 (Id. ¶ 56). She was provided with three sets of clothing, shoes, outerwear, 11 bedding, blankets, linens, and a mattress, pillow, and hygiene kit. (Id. ¶ 63). 12 Detainees at OMDC had access to the facility’s commissary where they could 13 purchase various items, including food. (Id. ¶ 68). Between December 28, 2017, 14 and January 4, 2018, Morales bought items including ramen noodles, M&M’s, 15 Oreos, hot chocolate, oatmeal, and Pepsi. (Id. ¶ 69). 16 Because Morales believed she was pregnant, she was assigned to a bottom 17 bunk, (id. ¶ 58), and placed on a “pregnancy diet” that included extra food to meet 18 a required caloric intake, (id. ¶¶ 70–71). Detainees had access to medical, dental, 19 and mental health care provided by the ICE Health Services Corps at OMDC. (Id. 20 ¶¶ 73–74). Morales received medical care on December 28, 2017, January 10, 21 2018, and January 15, 2018. (Id. ¶¶ 106–108). On January 15, 2018, Morales was 22 transported offsite to the emergency room at Sharp Chula Vista for a suction 23 dilation and curettage procedure. (Id. ¶¶ 108–10). On January 16, 2018, Morales 24 passed a large blood clot, so her procedure was cancelled, and an ultrasound 25 confirmed she wasn’t pregnant. (Id. ¶ 111). 26 On February 24, 2023, the Court determined Morales presented no genuine 27 issue of fact regarding the causation element of her medical negligence claim 28 against the United States under the Federal Tort Claims Act. (Dkt. 139). The Court 1 concluded, as a matter of law, Morales failed to establish the United States’s 2 alleged negligence caused her miscarriage, and it granted the United States’s 3 motion for summary judgment. (Id.). The Court declined to exercise supplemental 4 jurisdiction over Morales’s state law negligence claims against CoreCivic. (Id.). 5 CoreCivic timely filed a Rule 59(e) motion for post-judgment relief requesting the 6 Court reconsider its February order and CoreCivic’s unresolved Motion for 7 Summary Judgment. (Dkt. 146). 8 II. RULE 59(e) MOTION FOR RECONSIDERATION 9 A Rule 59(e) motion for post judgment relief may be granted where the 10 motion is necessary to correct clear errors of law upon which the judgment is 11 based. Turner v. Burlington N. Sante Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 12 2003). CoreCivic argues the Court’s February 24, 2023, order declining to 13 exercise supplemental jurisdiction was based on clear legal error because the 14 Court had jurisdiction over Morales’s state law claims under 28 U.S.C. § 1332 15 once the United States was dismissed. (Dkt. 146; 153 at 6). 16 District courts have a “virtually unflagging obligation to exercise the 17 jurisdiction conferred upon [them] by the coordinate branches of government and 18 duly invoked by litigants.” Williams v. Costco Wholesale Corp., 471 F.3d 975, 977 19 (9th Cir. 2006) (internal quotation marks omitted). District courts have original 20 jurisdiction over civil actions where the amount in controversy exceeds $75,000 21 and the parties to the action are citizens of different states. 28 U.S.C. § 1332. 22 Subject matter jurisdiction is determined as the facts existed at the time it was 23 invoked. Faysound Ltd. v. United Coconut Chems., Inc., 878 F.2d 290, 296 24 (9th Cir. 1989). 25 Morales’s initial Complaint invoked the Court’s subject matter jurisdiction 26 based on federal question, 28 U.S.C. § 1331, and diversity, 28 U.S.C. § 1332. 27 (Dkt. 1 ¶¶ 21–22). The Court decided diversity jurisdiction was lacking because 28 the United States was a party. (Dkt. 3 at 2). Morales amended her Complaint and 1 claimed the Court could exercise jurisdiction over her federal claims against the 2 United States pursuant to § 1331 and § 1346(a) and her claims against CoreCivic 3 pursuant to § 1367(a). (Dkt. 50 ¶¶ 26–27). On February 24, 2023, the Court 4 issued an order granting the United States motion for summary judgment and 5 dismissing, sua sponte, Morales’s state law claims against CoreCivic. (Dkt. 139). 6 Supplemental jurisdiction over Morales’s remaining claims against CoreCivic 7 wasn’t exercised because the Court found it dismissed all claims over which it had 8 original jurisdiction. (Id.). 9 Once the Court dismissed the United States, the Court had an independent 10 basis of jurisdiction over Morales’s state law claims against CoreCivic pursuant to 11 § 1332. Morales is a resident of Arkansas and an asylum seeker from El Salvador. 12 (Dkt. 50 ¶¶ 5–6). CoreCivic is a Maryland corporation with its headquarters in 13 Tennessee. (Id. ¶ 21). Although Morales’s Fourth Amended Complaint (“4AC”) is 14 silent as to the actual damages she is requesting, she doesn’t assert that the 15 amount in controversy falls below the jurisdictional threshold. See Dart Cherokee 16 Basin Operating Co. v. Owens, 574 U.S. 81, 87 (2014) (“[T]he defendant’s 17 amount-in-controversy allegation should be accepted when not contested by the 18 plaintiff or questioned by the court.”). In addition, Morales’s initial Complaint, when 19 she first invoked this Court’s jurisdiction, sought damages well in excess of 20 $75,000. (Dkt. 1 ¶ 22). Her operative 4AC requests compensatory and special 21 damages “in an amount which will fairly and reasonably compensate her for the 22 violation of her constitutional rights; her past and future medical care; [and] for her 23 past and future pain and suffering and disability.” (Dkt. 50 ¶ 205). Even if her 24 failure to contest the amount wasn’t determinative, the jurisdictional threshold is 25 met because these requests can’t be construed to a legal certainty to be below 26 $75,000. See Budget Rent-A-Car v. Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 27 1997) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 28 (1938)) (“To justify dismissal, ‘[i]t must appear to a legal certainty that the claim is 1 really for less than the jurisdictional amount.’” (alteration in original)). 2 Here, granting CoreCivic’s Rule 59(e) motion is necessary to correct a clear 3 error of law on which the February order was based because once the United 4 States was dismissed, the Court had jurisdiction over Morales’s state law claims 5 under § 1332 based on facts as they existed when the Court’s jurisdiction was 6 invoked. See Faysound, 878 F.2d at 296; cf. Carmax Auto Superstores, Inc. v. 7 Sibley, No. 16cv611, 2016 WL 7493973, at *8 (E.D. Va. Dec. 30, 2016) (“[A] court 8 could retain jurisdiction over a case removed for federal question jurisdiction even 9 if the basis for federal question jurisdiction is destroyed . . . as long as an 10 independent basis for subject matter jurisdiction (such as diversity jurisdiction) 11 exists.”). Morales doesn’t dispute diversity existed as an independent basis of 12 jurisdiction once the Court dismissed the United States. (See Dkt. 151, 152); see 13 also Morales-Alfaro v. CoreCivic, Inc., No. 23-cv-1311-LAB-BGS, ECF No. 1 14 (after Morales refiled her state law claims in state court, CoreCivic removed the 15 case to federal court based on diversity jurisdiction, and Morales’s didn’t contest 16 it). Instead, she argues CoreCivic’s Rule 59(e) motion should be denied because 17 neither the facts nor the law have changed since the order was issued. (Dkt. 152 18 at 3). Although these are alternative grounds to grant a Rule 59(e) motion, clear 19 legal error is an independent basis to grant relief pursuant to Rule 59(e). Turner, 20 338 F.3d at 1063. Because the Court has a “virtually unflagging obligation to 21 exercise the jurisdiction conferred upon [it] by the coordinate branches of 22 government,” the Court’s failure to exercise diversity jurisdiction in the present 23 matter was clear legal error. See Williams, 471 F.3d at 977 (alteration in original) 24 (internal quotation marks omitted). 25 Alternatively, Morales argues CoreCivic’s Rule 59(e) motion should be 26 denied because CoreCivic didn’t comply with Chambers Rule 3(e) or Local Rule 27 7(i). (Dkt. 151 at 2–3; 152 at 2). The Court finds this argument without merit. See 28 Thomasson v. GC Servs. Ltd. P’ship, No. 05-cv-0940-LAB-CAB, 2007 WL 1 2317111, at *1 n.5 (S.D. Cal. Aug. 9, 2007) (citing Hinton v. Pac. Enters., 5 F.3d 2 391, 395 (9th Cir. 1993)) (“[T]he court declines to construe local rules regarding 3 motions for reconsideration to conflict with or to foreclose that relief [provided by 4 Rule 59(e)].”). 5 Dismissing Morales’s state law claims against CoreCivic when the Court 6 had subject matter jurisdiction over these claims was clear legal error. CoreCivic’s 7 Rule 59(e) motion is GRANTED. 8 III. SUMMARY JUDGMENT 9 A. Legal Standard 10 Summary judgment is appropriate under Federal Rule of Civil Procedure 11 56(a) where the movant “shows that there is no genuine dispute as to any material 12 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 13 56(a). In order to prevail, the moving party must show the absence of a genuine 14 issue of material fact with respect to an essential element of the non-moving 15 party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the 16 movant makes this showing, the burden shifts to the non-moving party to identify 17 “specific facts showing there is a genuine issue for trial.” Id. at 324. The party 18 opposing summary judgment must present affirmative evidence from which a jury 19 could return a verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 20 U.S. 242, 257 (1986). 21 In deciding a motion for summary judgment, the court draws all reasonable 22 factual inferences in favor of the non-moving party. Id. at 255. “The mere 23 existence of a scintilla of evidence in support of the plaintiff’s position will not be 24 sufficient; there must be evidence on which the jury could reasonably find for the 25 plaintiff.” Id. at 252. The court doesn’t make credibility determinations, weigh 26 conflicting evidence, or draw legitimate inferences from the facts. Id. at 255. 27 Rather, the court determines whether the record “presents a sufficient 28 disagreement to require submission to a jury or whether it is so one-sided that one 1 party must prevail as a matter of law.” Id. at 251–52. In ruling on a motion for 2 summary judgment, the court only needs to consider cited materials, but may 3 consider other materials in the record. Fed. R. Civ. P. 56(c)(3). The court isn’t 4 obligated to scour the record. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 5 B. Morales’s Claims Against CoreCivic 6 Morales asserts four theories of liability against CoreCivic: (1) negligence, 7 (2) negligent infliction of emotional distress, (3) negligent supervision and training 8 of employees, and (4) respondeat superior liability. (Dkt. 50 at 40–44). Each 9 theory will be addressed in turn. 10 i. Negligence 11 “Under California law, ‘[t]he elements of negligence are: (1) defendant’s 12 obligation to conform to a certain standard of conduct for the protection of others 13 against unreasonable risks (duty); (2) failure to conform to that standard (breach 14 of duty); (3) a reasonably close connection between the defendant’s conduct and 15 resulting injuries (proximate cause); and (4) actual loss (damages).’” Corales v. 16 Bennet, 567 F.3d 554, 572 (9th Cir. 2009) (alteration in original) (quoting McGarry 17 v. Sax, 158 Cal. App. 4th 983, 994 (2008)). CoreCivic argues it didn’t breach its 18 duty of care and, alternatively, even if it breached its duty of care, its breach wasn’t 19 a cause in fact of Morales’s injury. (Dkt. 95 at 23–29; 129 at 7–9). 20 Under California law, whether a particular defendant owes a duty is a 21 question of law “particularly amenable to resolution by summary judgment.” 22 Regents of Univ. of Cal. v. Super. Ct., 4 Cal. 5th 607, 618 (2018) (quoting Parsons 23 v. Crown Disposal Co., 15 Cal. 4th 456, 465 (1997)). However, the issue of breach 24 is a question of fact where “reasonable minds might differ as to whether the 25 defendant’s conduct has conformed to [that] standard.” Ramirez v. Plough, Inc., 6 26 Cal. 4th 539, 546 (1993). 27 Morales argues the scope of CoreCivic’s duty of care is defined by its 28 contract with ICE. (Dkt. 116 at 7–8). She alleges this contract required CoreCivic 1 to comply with ICE’s Performance–Based National Detention Standards. (Id.). 2 CoreCivic denies that its contract with ICE defines the scope of its duties to 3 Morales, and instead argues that its duty was “to exercise ordinary care as a 4 reasonably prudent person in providing reasonably safe conditions and access to 5 medical care.” (Dkt. 95 at 24–25). CoreCivic argues that under either standard, it 6 didn’t breach its duty to Morales. (Id.). 7 The Court declines to address the scope of CoreCivic’s duty to Morales 8 because it finds Morales failed to raise a genuine issue of material fact as to 9 whether CoreCivic caused Morales’s miscarriage. See Celotex Corp., 477 U.S. at 10 323 (“[T]here can be ‘no genuine issue as to any material fact,’ [where] a complete 11 failure of proof concerning an essential element of the nonmoving party’s case 12 necessarily renders all other facts immaterial.”). Morales hasn’t raised a genuine 13 issue of material fact as to whether CoreCivic’s alleged breach of duty caused her 14 miscarriage. 15 Under California law, “[t]he plaintiff must introduce evidence which affords a 16 reasonable basis for the conclusion that it is more likely than not that the conduct 17 of the defendant was a cause in fact of the result.” Ortega v. Kmart Corp., 26 Cal. 18 4th 1200, 1205 (2001). “California has definitively adopted the substantial factor 19 test of the Restatement Second of Torts for cause in fact determinations.” 20 Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 968–69 (1997) (citing Mitchell 21 v. Gonzales, 54 Cal. 3d 1041, 1052 (1991)). The “substantial factor” test 22 subsumes the “but for” test. Mitchell, 54 Cal. 3d at 1052. If the defendant’s alleged 23 conduct had nothing to do with the plaintiff’s injures, it can’t be said the conduct 24 was a substantial factor in causing the plaintiff’s injuries. Id. In a California 25 personal injury action, the plaintiff must prove causation “within a reasonable 26 medical probability based upon competent expert testimony.” Kline v. Zimmer, 27 Inc., 79 Cal. App. 5th 123, 129 (2022) (quoting Jones v. Ortho Pharm. Corp., 163 28 Cal. App. 3d 396, 402 (1985)). 1 Morales argues her negligence claim against CoreCivic depends on 2 different elements than her professional negligence claim against the United 3 States that the Court dismissed for failure to show causation. (Dkt. 152 at 4–5). 4 Specifically, she relies on Powell v. Kleinman, 151 Cal. App. 4th 112, 123 (2007), 5 for the proposition that, unlike in the professional negligence context, she isn’t 6 required to present expert testimony regarding causation in a general negligence 7 action. (Id. at 5). Powell holds that a plaintiff pursuing a medical negligence claim 8 must present expert testimony regarding the causation element. Powell, 151 Cal. 9 App. 4th at 123. It doesn’t support Morales’s contention that expert testimony isn’t 10 required to prove causation in a general negligence action. Cf. Jones, 163 Cal. 11 App. 3d at 402 (“The law is well settled that in a personal injury action causation 12 must be proven within a reasonable medical probability based upon competent 13 expert testimony.”). 14 CoreCivic relies on the expert opinion of Dr. Jessica M. Kingston. Dr. 15 Kingston is board-certified by the American Board of Obstetrics and Gynecology 16 and is currently employed at the University of California San Diego as a Health 17 Sciences Clinical Professor. (Dkt. 92-2 ¶¶ 6–8). According to her expert 18 testimony, ultrasounds documenting a pregnancy will show the gestational sac by 19 the fourth week of gestation, the yolk sac by the fifth week, the fetal pole by the 20 sixth week, and fetal heart motion as early as the sixth week but almost always 21 by the seventh week. (Id. ¶ 40). Based on the timing of Morales’s last menstrual 22 period, Dr. Kingston concluded Morales was six weeks and three days pregnant 23 during her December 14 visit to the Tijuana clinic. (Id. ¶ 44). However, the 24 ultrasound images produced by Dr. Ochoa during this visit show the 25 measurements of Morales’s intrauterine gestational sac were between eight and 26 thirteen millimeters, which only indicated a four-week pregnancy. (Id. ¶ 42). Dr. 27 Kingston’s report concluded this discrepancy was indicative of early pregnancy 28 loss. (Id. ¶¶ 43, 45). 1 Dr. Kingston stated Dr. Ochoa’s report from the Tijuana clinic makes no 2 mention of a fetal heartbeat. (Id. ¶¶ 46–47). She stated “[i]f the pregnancy was 3 only measuring 4 weeks, no fetal heartbeat could possibly have been detected. . 4 . . [I]f her pregnancy had developed normally, by 6 weeks 3 days there should 5 have been a fetal heartbeat present, but there was not.” (Id. ¶ 48). Moreover, she 6 noted that although Dr. Ochoa’s report described a two-millimeter fetal pole, it 7 wasn’t actually visible in the ultrasound images. (Id. ¶ 42). She confirmed this 8 finding because Dr. Ochoa’s report didn’t note the existence of a yolk sac, “which 9 would have developed before the fetal pole in a normal pregnancy.” (Id. ¶ 51). 10 Dr. Kingston mentioned that “[o]n December 14, 2017, Ms. Morales-Alfaro’s 11 pregnancy should have measured at approximately 6 weeks, 3 days. Not only did 12 she measure at only 4 weeks, but the ultrasound didn’t show an embryo, which is 13 suspicious for impending pregnancy loss.” (Id. ¶ 53). Considering the discrepancy 14 as to Morales’s gestational age, Dr. Kingston stated that “Ms. Morales-Alfaro’s 15 clinical course and ultrasound studies demonstrate that the ultrasound performed 16 on December 14, 2017 was indicative of early pregnancy failure and this was 17 definitively confirmed when her second ultrasound was performed 4 weeks later 18 on January 10, 2018.” (Id. ¶ 59). She concluded “to a reasonable degree of 19 medical probability that Ms. Morales-Alfaro’s estimated [last menstrual period], 20 clinical course, symptom timeline, and ultrasound studies are evidence that she 21 was experiencing pregnancy failure prior to being apprehended by US Border 22 Patrol agents on December 22, 2017,” (id. ¶ 61), and that nothing could’ve been 23 done to prevent her pregnancy loss, (id. ¶ 88). 24 Morales’s experts fail to rebut Dr. Kingston’s opinion that her lost pregnancy 25 occurred before she was apprehended by US Border Patrol agents. Plaintiff relies 26 on the testimony of two experts, Dr. Jose A. Spencer and Dr. Noah AR Nattell. 27 Dr. Spencer is a licensed physician in Texas and New Mexico and is board- 28 certified in diagnostic radiology. (Dkt. 117-6 at 4). He reviewed Dr. Ochoa’s 1 December 14, 2017, sonogram and his report notes “an apparent embryo with a 2 crown rump length of .23 cm.” (Id.). His report doesn’t discuss whether the images 3 reveal the existence of a fetal pole, a yolk sac, or a fetal heartbeat. Without further 4 analysis, Dr. Spencer concludes his findings “are consistent with early intrauterine 5 gestation.” (Id.). Dr. Spencer also reviewed Morales’s sonogram from January 10, 6 2018. (Id. at 1). He noted the “sonographic gestational age is approximately 6W0d 7 +- 0W4D.” (Id.). He concluded that no fetal “heart tones [were] profiled suggesting 8 embryonic demise in utero.” (Id.). Neither report discusses whether the images 9 reveal the existence of a fetal pole or a yolk sac, the lack of which, according to 10 Dr. Kingston, shows Morales miscarried prior to her detention at OMDC. (Dkt. 92- 11 2 ¶ 61). Thus, Dr. Spencer’s report falls short of raising a genuine issue of fact as 12 to whether Morales miscarried prior to her detention at CoreCivic’s facility. 13 Dr. Nattell is a board-certified Obstetrician and Gynecologist, director of 14 Women’s Health for Integrated Correctional Health Services in Los Angeles 15 County’s Department of Health Services, and volunteer professor at USC Keck 16 School of Medicine. (Dkt. 117-7 at 1). The bulk of Dr. Nattell’s report deals with 17 the standard of care Morales received while at OMDC. (Id. at 3–5). Dr. Nattell 18 reviewed neither Morales’s December 14, 2017, ultrasound nor Dr. Ochoa’s report 19 from her visit to the Tijuana clinic. (Id. at 2). Instead, he relies exclusively on Dr. 20 Spencer’s report to conclude “there is no indication that the images described in 21 this report represent a non-viable pregnancy.” (Id. at 3). Expert opinions made 22 with no factual basis aren’t enough to defeat summary judgment. See Guidroz- 23 Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 830 (9th Cir. 2001) (rejecting expert 24 opinions on summary judgment where “there was no factual basis for the [expert’s] 25 assumption”). Dr. Nattell’s bare conclusion that the ultrasounds he didn’t review 26 are consistent with a viable pregnancy can’t defeat summary judgment. United 27 States v. Various Slot Machs. on Guam, 658 F.2d 697, 700 (9th Cir. 1981) (“[I]n 28 the context of a motion for summary judgment, an expert must back up his opinion 1 with specific facts.”). As discussed, Dr. Spencer’s report failed to identify the 2 existence of a fetal pole or yolk sac in Morales’s ultrasound from the Tijuana clinic. 3 CoreCivic’s expert testified that this deficiency shows that Morales miscarried 4 prior to her detention at OMDC. (Dkt. 92-2 ¶ 61). Dr. Nattell’s exclusive reliance 5 on a report that falls short of showing causation to a reasonable degree of medical 6 probability can’t possibly create an issue of fact concerning causation. See Nelson 7 v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996) (“[M]ere allegation and 8 speculation do not create a factual dispute for purposes of summary judgment.”). 9 Even if the portion of Dr. Nattell’s report concerning the viability of Morales’s 10 pregnancy isn’t deficient for failing to examine Dr. Ochoa’s ultrasounds directly, 11 the report fails to establish causation to a reasonable degree of medical 12 probability. Here, Dr. Nattell conceded that had Morales received more 13 expeditious care, “the overall pregnancy outcome may not have been altered.” 14 (Dkt. 117-7 at 5). The report plainly falls short of showing causation to a 15 reasonable medical probability. Jones, 163 Cal. App. 3d at 403 (“A possible cause 16 only becomes ‘probable’ when, in the absence of other reasonable causal 17 explanations, it becomes more likely than not that the injury was a result of its 18 action. This is the outer limit of inference upon which an issue may be submitted 19 to the jury.”). 20 As to Morales’s argument that she failed to obtain obstetric care and that 21 she was confined to unconstitutionally punitive conditions that contributed to her 22 miscarriage, these claims also fail. (Dkt. 116 at 17). As analyzed above, Morales 23 failed to refute Dr. Kingston’s expert opinion that she wasn’t already suffering a 24 miscarriage prior to her detention at OMDC. She also fails to provide any evidence 25 that she wasn’t provided with obstetric care or that she was living in 26 unconstitutionally punitive conditions. (See Dkt. 129 at 2–6). The undisputed facts 27 mention Morales was assigned to the bottom bunk, (Dkt. 91 ¶ 58); free to travel 28 around OMDC, (id. ¶ 60); provided thee sets of clothing, shoes, outerwear, 1 bedding, blankets, linens, and a mattress, pillow, and hygiene kit, (id. ¶ 63); had 2 access to feminine hygiene products, (id. ¶ 64); and could make purchases from 3 the facility’s commissary and received additional food, (id. ¶¶ 68–72). More 4 importantly, each time Morales needed medical care, she received it. (Id. ¶¶ 105– 5 109). There’s no record that Morales submitted a complaint about the 6 temperature, requested additional blankets or clothing, requested assistance, or 7 filed a grievance to CoreCivic’s staff. (Id. ¶¶ 67, 103). Aside from Morales’s 8 assertion that she “begged for prenatal care for nearly two weeks,” she doesn’t 9 provide any evidence of how she wasn’t provided proper care during her detention 10 when the evidence shows she received medical care on three separate 11 occasions. (See Dkt. 116 at 20–23). Even if these alleged circumstances were 12 true, Dr. Kingston found these circumstances had no effect on her pregnancy. 13 (Dkt. 92-2 ¶¶ 75–89). 14 Morales presented no expert testimony rebutting Dr. Kingston’s conclusion 15 that, to a reasonable degree of medical certainty, Morales’s miscarriage began 16 before she was apprehended by US Border Patrol and brought to OMDC. Cf. 17 Kline, 79 Cal. App. 5th at 131 (“To allow a jury to consider a claim where the 18 plaintiff’s prima facie showing falls short of reasonable medical probability would 19 be to allow the jury to find the requisite degree of certainty where science 20 cannot.”). Morales failed to establish a genuine issue of material fact regarding an 21 essential element of her negligence claim against CoreCivic, and this claim fails 22 as a matter of law. See Celotex Corp., 477 U.S. at 323. 23 ii. Negligent Infliction of Emotional Distress 24 Under California law, negligent infliction of emotional distress isn’t an 25 independent tort, but rather derives from the tort of negligence. Marlene F. v. 26 Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989). “It is settled in 27 California that in ordinary negligence actions for physical injury, recovery for 28 emotional distress caused by that injury is available as an item of parasitic 1 damages.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th. 965, 981 (1993) 2 (citing Crisci v. Sec. Ins. Co., 66 Cal. 2d 425, 433 (1967)). 3 Morales argues that even if she can’t show CoreCivic caused her 4 miscarriage, its negligence caused her to suffer for twelve days while her 5 miscarriage symptoms worsened. (Dkt. 116 at 23). This allegation of harm is 6 distinct from that alleged in her 4AC. (See Dkt. 50 ¶¶ 184–187). In her 4AC, 7 Morales alleges her suffering was caused by her lost pregnancy. (Id. ¶ 186). The 8 allegation in her 4AC is consistent with her deposition testimony where she was 9 asked “is it the loss of your baby that has caused you all of your trauma?” to which 10 she replied “yes.” (Dkt. 117-8 at 146:5–7). If Morales intended to introduce a new 11 basis for her negligent infliction of emotional distress claim, the Court declines to 12 consider this new basis of liability at the summary judgment stage. See Wasco 13 Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (citation 14 omitted) (“[T]he necessary factual averments are required with respect to each 15 material element of the underlying legal theory. . . . Simply put, summary judgment 16 is not a procedural second chance to flesh out inadequate pleadings.” (alteration 17 in original)). Because her claim for negligence fails, Morales’s request for parasitic 18 damages under a theory of negligent infliction of emotional distress also fails. See 19 Crisci, 66 Cal. 2d at 433 (“[M]ental suffering constitutes an aggravation of 20 damages when it naturally ensues from the act complained of . . . .”); see also 21 Desmond v. Charter Commc’ns, Inc., No. 19-cv-2392-AJB-MDD, 2021 WL 22 3034021, at *12 (S.D. Cal. July 19, 2021) (granting summary judgment to 23 defendant on negligent infliction of emotion distress claim because plaintiff failed 24 to show she can prevail on underlying discrimination, retaliation, and harassment 25 claims). 26 iii. Negligent Training and Supervision 27 Under California law, a plaintiff alleging negligent training or supervision 28 must show “the employer negligently trained the employee as to the performance 1 of the employee’s job duties and as a result of such negligent instruction, the 2 employee while carrying out his job duties caused injury or damage to the plaintiff.” 3 Garcia ex rel. Marin v. Clovis Unified Sch. Dist., 627 F. Supp. 2d 1187, 1208 4 (E.D. Cal. 2009) (citing State Farm & Casualty Co. v. Keenan, 171 Cal. App. 3d 5 1, 23 (1985)). To prevail, the plaintiff must show the employer “knew or should 6 have known that an employee’s unfitness or incompetence created a particular 7 risk of harm and that harm materialized, causing the plaintiff’s injury.” Castrellon 8 v. Costco Wholesale Corp., No. CV 20-3295-DMG (ASx), 2021 WL 4228353, at *4 9 (C.D. Cal. June 17, 2021) (citing Delfino v. Agilent Techs., Inc., 145 Cal. App. 4th 10 790, 815 (2006)). 11 Morales argues a dispute of fact exists as to whether CoreCivic’s employees 12 were sufficiently trained in their duties to provide adequate medical care to 13 detainees and whether CoreCivic’s employees breached these duties by failing to 14 provide medical care outside of “emergencies.” (Dkt. 116 at 24). She argues 15 CoreCivic inadequately trained its staff to understand a situation requiring a 16 medical emergency. (Id. at 26). Because of this inadequate training, Morales 17 argues she suffered a miscarriage, which was the foreseeable result of ineffective 18 training. (Id. at 27). This argument fails for three reasons. 19 First, the parties’ joint statement of undisputed facts recognizes that 20 CoreCivic’s personnel were trained regarding First Aid & Medical Referral, 21 pregnancy issues, and medical emergencies, and that this training was 22 appropriate and within industry standards. (Dkt. 91 ¶¶ 31–45). Because Morales 23 conceded that CoreCivic didn’t breach its duty to adequately train its employees, 24 this claim fails as a matter of law. 25 Second, even if the Court disregards Morales’s prior concession, she failed 26 to identify a specific CoreCivic employee who was negligently trained. Because 27 Morales hasn’t shown CoreCivic knew or had reason to know a particular 28 employee created a risk or hazard, this claim fails as a matter of law. See Delfino, 1 145 Cal. App. 4th at 817. 2 Finally, assuming neither Morales’s concession nor her failure to identify a 3 particular employee are determinative, her claim fails because she can’t prove all 4 elements for negligence. As discussed, Morales failed to present expert testimony 5 concluding to a reasonable degree of medical probability that any employee 6 caused her miscarriage. Because she can’t show any of CoreCivic’s employees 7 caused her miscarriage, this claim fails as a matter of law. 8 iv. Respondeat Superior Liability 9 Morales’s claim for respondeat superior liability against CoreCivic is facially 10 the same as her claim for negligent training and supervision. The substantive 11 difference is that under this theory of liability, the plaintiff isn’t required to show 12 her injuries were the result of the defendant’s negligent training. See, e.g., Perez 13 v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 967 (1986). Instead, an “employer 14 is vicariously liable for his employee’s torts committed within the scope of the 15 employment.” Id. Thus, Morales’s concession that CoreCivic’s training was 16 appropriate and within industry standards isn’t determinative to CoreCivic’s 17 liability under the doctrine of respondeat superior. (Dkt. 91 ¶ 45). 18 However, under California law, “unless the employee is identified, the trier 19 of fact will not be able to determine if the elements needed to assert vicarious 20 liability have been proved.” Munoz v. City of Union City, 120 Cal. App. 4th 1077, 21 1113 (2004), overruled on other grounds by Hayes v. Cnty. of San Diego, 57 Cal. 22 4th 662, 639 n.1 (2013). The allegedly “negligent employee whose conduct is 23 sought to be attributed to the employer [must] at least be specifically identified, if 24 not joined as a defendant.” Id. 25 Here, Morales’s doesn’t identify a specific employee of CoreCivic whose 26 alleged negligence caused her miscarriage. (See Dkt. 116). It isn’t the task of the 27 Court to “scour the record in search of a genuine issue of triable fact.” Keenan, 91 28 F.3d at 1279; see also Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (citing 1 ||Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005)) 2 ||(determining a plaintiff has abandoned claims that weren't raised in opposition to 3 defendant’s motion for summary judgment). Moreover, even assuming 4 ||Morales’s failure to identify a particular employee of CoreCivic isn’t determinative, 5 didn’t produce expert testimony rebutting Dr. Kingston’s conclusion that, to a 6 ||reasonable degree of medical probability, her miscarriage began before she 7 |jentered CoreCivic’s OMDC facility. Morales’s derivative claim for respondeat 8 || superior liability against CoreCivic fails as a matter of law. 9 CONCLUSION 10 The Court GRANTS (1) CoreCivic’s Rule 59(e) Motion for Reconsideration, 11 ||(Dkt. 146), and (2) CoreCivic’s Motion for Summary Judgment as to Morales’s 12 ||remaining causes of action, (Dkt. 95). The Clerk is directed to enter judgment 13 ||}accordingly and terminate this case. 14 IT IS SO ORDERED. 15 16 ||Dated: March 12, 2024 (aud Af. (buy wy 17 Honorable Larry Alan Burns 18 United States District Judge 19 20 21 22 23 24 25 26 27 28