Morton v. County of San Diego

• Court: District Court, S.D. California
• Decided: January 16, 2024
• Docket: 3:21-cv-01428
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARILYN MORTON, et al., Case No. 21-cv-1428-MMA-DDL

11 Plaintiffs, ORDER GRANTING IN PART 12 v. PLAINTIFFS’ MOTION FOR LEAVE TO FILE FOURTH 13 COUNTY OF SAN DIEGO, et al., AMENDED COMPLAINT 14 Defendants. [Doc. No. 143] 15 16 17 Marilyn Morton (“Ms. Morton”), as successor in interest to Decedent Joseph Earl 18 Morton’s (“Mr. Morton”) estate, as well as Ms. Morton and Dean Morton as individuals 19 (collectively, “Plaintiffs”), bring this action pursuant to 42 U.S.C. § 1983 against the 20 County of San Diego (the “County”), Samantha Macanlalay (“Macanlalay”), Bijan 21 Rahmani (“Rahmani”), Hosanna Alto (“Alto”), Matthew Berlin (“Berlin”), Liberty 22 Healthcare (“Liberty”), and Does 1–10. See Doc. No. 28 (“Third Amended Complaint” 23 or “TAC”). Plaintiffs now seek leave to file a Fourth Amended Complaint. The County, 24 Macanlaylay, and Alto (collectively, the “County Defendants”) filed and opposition, to 25 which Plaintiffs replied. See Doc. Nos. 154, 155. The Court found the matter suitable 26 for determination on the papers and without oral argument pursuant to Federal Rule of 27 Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. See Doc. No. 158. For the following 28 reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion. 1 I. BACKGROUND 2 The parties are well-versed in the relevant facts, and so the Court does not recite 3 them here. For the purpose of this motion, the Court provides the following abbreviated 4 summary. 5 On May 8, 2020, Mr. Morton attempted suicide and was placed under a 72-hour 6 welfare hold pursuant to Cal. Welf. & Inst. Code § 5150. TAC ¶ 4. Mr. Morton was 7 released on May 10, 2020, and on May 11, 2020, attempted to commit a robbery. Id. 8 ¶¶ 4–5. Mr. Morton was arrested by County Sheriff’s Department deputies and booked 9 into custody at Vista Detention Facility (“VDF”). Id. ¶ 5. Plaintiffs allege that during his 10 arrest, processing, and evaluation, Mr. Morton made suicidal statements and attempted to 11 harm himself. Id. ¶¶ 6–11. Nonetheless, Mr. Morton was classified as a low risk for 12 suicide and cleared for mainline housing. Id. ¶¶ 9–12. On May 17, 2020, Mr. Morton 13 died by suicide. Id. ¶ 16. 14 II. LEGAL STANDARD 15 Rule 15(a) of the Federal Rules of Civil Procedure1 provides that leave to amend 16 pleadings “shall be freely given when justice so requires.” Fed. R. Civ. P. 15. However, 17 once a district court has issued a scheduling order under Rule 16 establishing a timetable 18 for amending pleadings, the liberal standards of Rule 15 no longer govern. See Johnson 19 v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Under Rule 16, 20 “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. 21 R. Civ. P. 16(b)(4). Within this context, good cause is measured by the diligence of the 22 party seeking the amendment. Johnson, 975 F.2d at 609. “Although the existence or 23 degree of prejudice to the party opposing the modification might supply additional 24 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for 25 seeking modification.” Id. at 609. 26 27 28 1 In ruling on matters such as these, which involve the supervision of the pretrial 2 phase of litigation, “[t]he district court is given broad discretion.” Miller v. Safeco Title 3 Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985). If the district court finds a lack of diligence, 4 “the inquiry should end.” Johnson, 975 F.2d at 609. If, however, the movant meets the 5 Rule 16 burden, the Court proceeds to considering the motion under the usual standard of 6 Rule 15. 7 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice 8 so requires.’” AmerisourceBergen Corp. v. Dialysist West, Inc., 445 F.3d 1132, 1136 (9th 9 Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). Courts consider “undue delay, bad faith, 10 dilatory motive, repeated failure to cure deficiencies by previous amendments, undue 11 prejudice to the opposing party, and futility of the proposed amendment” in deciding 12 whether justice requires granting leave to amend under Rule 15. Moore v. Kayport 13 Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v. Davis, 370 14 U.S. 178, 182 (1962)); see also Cervantes v. Zimmerman, No. 17-cv-1230-BAS-NLS, 15 2019 U.S. Dist. LEXIS 39789, at *8 (S.D. Cal. Mar. 12, 2019) (“Whether to grant a 16 motion to amend depends on five factors: (1) bad faith, (2) prejudice to the opposing 17 party, (3) futility, (4) undue delay, and (5) whether the plaintiff has previously 18 amended.”) (citing Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 19 1991)). 20 III. DISCUSSION 21 Plaintiffs seek leave to amend their pleading to name two previously unidentified 22 Does, as well as add a claim for violation of the Bane Act and to pursue municipal and 23 supervisory liability for the alleged Fourteenth Amendment violation. 24 At the outset, the Court must determine whether to apply Rule 16 or 15. Plaintiffs 25 initiated this action on August 9, 2021. See Doc. No. 1. Following several rounds of 26 motions to dismiss, see Doc. Nos. 6, 10, 21, Plaintiffs filed a Third Amended Complaint 27 on June 3, 2022, see TAC. On June 16, Defendants filed their Answers. See Doc. 28 Nos. 31, 32. 1 On August 5, 2022, Magistrate Judge Karen S. Crawford issued the first Rule 16 2 Scheduling Order. See Doc. No. 39. Relevant here, the amended pleadings deadline was 3 set for September 20, 2022. Id. Thereafter, Magistrate Judge David D. Leshner issued a 4 First Amended Scheduling Order, see Doc. No. 51, and a Second Amended Scheduling 5 Order, see Doc. No. 88. In neither Order did he reset the amended pleadings deadline. 6 Instead, he noted that “[e]xcept as explicitly modified herein, all deadlines, instructions 7 and mandatory procedures set forth in the Court’s August 5, 2022 Scheduling Order [Dkt. 8 No. 39] remain in effect.” Doc. No. 51 at 2. 9 Consequently, the deadline for Plaintiffs to seek leave to amend their pleading was 10 September 20, 2022. Doc. No. 39 at 1. Because the amended pleadings deadline lapsed 11 over a year ago, Rule 16 first applies. 12 A. Pleadings 13 It is necessary to begin with an overview of Plaintiffs’ pleadings and the Court’s 14 dismissal orders. By way of the First Amended Complaint, see Doc. No. 8, Plaintiffs 15 pleaded the following: (Claim 1) objective indifference in violation of the Fourteenth 16 Amendment against Macanlaylay, Rahmani, Alto, Berlin, and Does 1–10; 17 (Claim 2) inadequate suicide prevention/self-harm policy and training program in 18 violation of the Fourteenth Amendment against the County and Liberty; (Claim 3) gross 19 negligence/medical malpractice against all Defendants and Does 1–10; and 20 (Claim 4) wrongful death/survival against all Defendants and Does 1–10. As relevant 21 here, the Court dismissed Claim 2 for failure to identify a policy or custom to adequately 22 plead Monell liability. Doc. No. 18 at 14. The Court also dismissed Claim 4, noting that 23 a survival claim is not a separate cause of action. Id. at 16–17. 24 Thereafter, Plaintiffs filed the Second Amended Complaint, see Doc. No. 20, 25 alleging: (Claim 1) objective indifference in violation of the Fourteenth Amendment 26 against Macanlaylay, Rahmani, Alto, Berlin, and Does 1–10; (Claim 2) inadequate 27 suicide prevention/self-harm policy and training program in violation of the Fourteenth 28 Amendment against the County and Liberty; (Claim 3) negligence against all Defendants 1 and Does 1–10; (Claim 4) “survival action” against all Defendants and Does; and 2 (Claim 5) wrongful death against all Defendants and Does. Assessing the sufficiency of 3 the Second Amended Complaint, the Court dismissed Plaintiffs’ Monell claim (Claim 2), 4 to the extent it was based upon an express policy without leave to amend because 5 Plaintiffs had still failed to identify any policy, and had abandoned that theory of liability. 6 Doc. No. 27 at 6. The Court also dismissed Plaintiffs’ policy of inaction theory without 7 leave to amend to the extent the claim was based upon the failure to task a mental health 8 professional with intake evaluations as opposed to a registered nurse and lack of follow- 9 up after inmates are released from the Inmate Safety Program (“ISP”) housing. Id. at 8. 10 The Court found that Plaintiffs did not plead causation given that they pleaded 11 Mr. Morton was seen by a mental health professional and was nevertheless inaccurately 12 designated, and that Mr. Morton was never placed in ISP housing. Id. As to Plaintiffs’ 13 claim that the County and Liberty were liable for failing to provide adequate mental 14 health care by not monitoring suicidal inmates, the Court found the claim sufficiently 15 plausible. Id. at 10. The Court also, again, dismissed Plaintiffs’ “survival action” claim, 16 noting that it was neither necessary nor appropriate. Id. at 16. 17 In their operative pleading—the Third Amended Complaint—Plaintiffs plead the 18 following: (Claim 1) objective indifference in violation of the Fourteenth Amendment 19 against Macanlaylay, Rahmani, Alto, Berlin, and Does 1–10; (Claim 2) inadequate 20 suicide prevention/self-harm policy and training program in violation of the Fourteenth 21 Amendment against the County and Liberty; (Claim 3) failure to summon medical care 22 against all Defendants and Does 1–10; (Claim 4) “survival action” against all Defendants 23 and Does; (Claim 5) wrongful death against all Defendants and Does; and 24 (Claim 6) professional negligence against all Defendants and Does 1–10. Defendants did 25 not challenge the sufficiency of the Third Amended Complaint but rather filed answers. 26 See Doc. Nos. 31, 32. 27 Plaintiffs now seek leave to pursue the following: (Claim 1) objective indifference 28 in violation of the Fourteenth Amendment against Macanlaylay, Rahmani, Alto, Berlin, 1 Janine Sparks, and Christopher Sparks; (Claim 2) inadequate suicide prevention/self- 2 harm policy and training program in violation of the Fourteenth Amendment against the 3 County and Liberty; (Claim 3) failure to summon medical care against all Defendants 4 except Melissa Quiroz; (Claim 4) “survival action” against all Defendants except Melissa 5 Quiroz; and (Claim 5) wrongful death against all Defendants except Melissa Quiroz; 6 (Claim 6) professional negligence against all Defendants except Melissa Quiroz; 7 (Claim 7) supervisory liability for/ratification of a violation of the Fourteenth 8 Amendment against Melissa Quiroz and the County; and (Claim 8) violation of the Bane 9 Act against Janine Sparks, Christopher Kagay, the County, Liberty, and Does. Doc. 10 No. 143-1 at Ex. 1 (“FAC”). The County Defendants oppose Plaintiffs’ motion. See 11 Doc. No. 154. 12 B. Analysis 13 To the extent Plaintiffs seek leave to amend their pleading to substitute Ms. Sparks 14 and Mr. Kagay as two previously named Does on their existing claims, there is good 15 cause and the applicable Foman factors favor amendment. According to Plaintiffs, they 16 “just discovered the identity and culpable conduct of Janine Sparks during her deposition, 17 which was noticed by Defendant Liberty Healthcare and taken on August 18, 2023.” Id. 18 Plaintiffs also contend that Ms. Sparks’ identity was “concealed from Plaintiffs.” Id. As 19 to Mr. Kagay, Plaintiffs contend that while they knew of his identity, they only learned of 20 his potential liability upon receiving the Critical Incident Review Board (“CIRB”) 21 documents produced on September 13, 2023. Id. 22 In opposition, the County Defendants point out that Plaintiffs have already 23 requested and received extensions of the Rule 16 Scheduling Order. See Doc. No. 154. 24 However, as noted above, none of these amended scheduling orders extended the 25 September 2022 amended pleadings deadline. The County Defendants’ remaining 26 arguments, see id. at 13–16, bear on the Rule 15 analysis. They do not dispute that 27 Plaintiffs only learned of Ms. Sparks’ identity by way of Liberty’s notice of her 28 deposition. See id. at 13. Nor do they dispute that Plaintiffs have been diligent in 1 pursuing discovery, including the CIRB records. 2 Turning to the Foman factors, as to this requested amendment, there is no indicia 3 of bad faith or undue delay. It is clear Plaintiffs have been diligent in pursuing this 4 relevant discovery and the basis for these proposed amendments did not become apparent 5 until Ms. Sparks’ August 18, 2023 deposition and production of the CIRB records on 6 September 13, 2023. It also appears on this record that the County Defendants would not 7 be prejudiced by amendment in this respect because these amendments are based upon 8 discovery that has already been taken. 9 Adding Ms. Sparks and Mr. Kagay on the preexisting claims also does not appear 10 to be futile. Ms. Sparks was a Mental Health Clinician at VDF from May 12, 2020 11 through May 16, 2020. FAC ¶ 16. Plaintiffs allege that Ms. Sparks admitted during her 12 deposition that it was her responsibility to perform the 24-hour suicide assessment 13 follow-up with Mr. Morton, and that she failed to do so. Id. According to Plaintiffs, the 14 internal investigation recorded that Ms. Sparks failed to perform the assessment because 15 she was afraid to go into the COVID quarantine housing module. Id. Ms. Sparks 16 allegedly testified that if she had assessed Mr. Morton, and had he expressed that he 17 planned to kill himself, she would have placed him in ISP housing. Id. ¶ 20. 18 According to Plaintiffs, Christopher Kagay was “a Liberty-employed provider” 19 working at VDF on May 13, 2020. Id. ¶¶ 17, 34. Plaintiffs allege that Mr. Kagay 20 intentionally cancelled Berlin’s 24-hour psychiatric sick call order and converted it to a 21 chart check. Id. ¶ 17. According to Plaintiffs, Mr. Kagay did this despite not physically 22 evaluating Mr. Morton and despite being aware that Mr. Morton had verbalized a plan to 23 commit suicide and was off medication. Id. Plaintiffs also contend that Mr. Kagay was 24 aware Mr. Morton had been receiving medication during his 5150, but did not order anti- 25 psychotic medication. Id. Mr. Kagay rescheduled the psychiatric sick call assessment for 26 May 20, 2020. Id. According to Plaintiffs, if Ms. Sparks and Mr. Kagay had “followed 27 policy,” Mr. Morton would have undergone two additional suicide follow-up 28 assessments, likely preventing his death. Id. ¶ 20. The Court finds that these allegations 1 are sufficient at this time. Accordingly, the Court GRANTS Plaintiffs’ motion to the 2 extent they seek leave to identify Ms. Sparks and Mr. Kagay as the previously named 3 Does on their preexisting claims. 4 Turning to the remainder of Plaintiffs’ proposed amendments, the Court finds that 5 Plaintiffs have not demonstrated good cause to permit amendment beyond the deadline. 6 As noted above, the Rule 16 good cause standard turns on Plaintiffs’ diligence; the Court 7 may modify the scheduling order “if it cannot reasonably be met despite the diligence of 8 the party seeking amendment.” Johnson, 975 F.2d at 609 (internal citation and quotation 9 marks omitted). Plaintiffs have not persuasively argued that they could not have timely 10 sought leave to amend to add these new claims. 11 Plaintiffs are required to demonstrate that they could not reasonably have met the 12 September 2022 deadline. Despite seeking several discovery extensions, it appears that 13 Plaintiffs never sought to extend this deadline. This weighs against a finding that 14 Plaintiffs have been diligent in enabling this Court to create a workable Rule 16 15 scheduling order. With respect to their asserted inability to meet the September 2022 16 deadline, Plaintiffs again point to Ms. Sparks’ August 2023 deposition and the September 17 2023 CIRB document production. But this discovery is not sufficiently tethered to 18 Plaintiffs’ new claims. Plaintiffs do not explain why they could not have timely pleaded 19 a Bane Act claim. In fact, it appears they could have. In the original Complaint, 20 Plaintiffs expressly pleaded that Defendants acted with the specific intent to violate 21 Mr. Morton’s constitutional rights. See, e.g., Doc. No. 1 ¶ 64. And yet only now, years 22 later, Plaintiffs seek to press a Bane Act claim, and interestingly only seek to press this 23 claim against the two newly-identified Does, the County, and Liberty. The other new 24 claim is a second Fourteenth Amendment Monell claim against Ms. Quiroz and the 25 County, which is entitled “Supervisory Liability/Ratification.” FAC at 69. So far as the 26 Court can surmise, Plaintiffs seek to pursue the theories of liability that Ms. Quiroz 27 and/or the County ratified Ms. Sparks’ conduct, see FAC ¶ 166, and failed to 28 supervise/discipline her, see id. ¶ 180, rejected the State Auditor’s recommendation that 1 follow-up be required, see id. ¶ 171, and concealed Ms. Sparks and Mr. Kagay’s 2 misconduct, see id. ¶ 172. This appears to be an attempt to attempt to take another bite at 3 the apple after the close of discovery and on the eve of the February 1, 2024 dispositive 4 motions deadline. See Doc. No. 167. Moreover, even assuming the CIRB reports 5 “evidence[] that the CIRB investigators knew about Defendants Sparks and Kagay’s 6 misconduct but intentionally concealed it from Internal Affairs and the CIRB Board,” see 7 Doc. No. 143-1 at 7, there is no genuine argument that Plaintiffs were unaware of 8 Ms. Quiroz’s identity and involvement earlier such that they could not have timely sought 9 leave to amend. Finally, as noted above, Plaintiffs were on notice of any deficiencies or 10 issues regarding their Monell claim since at least May 2022. 11 This is Plaintiffs’ fifth attempt at pleading their claims. The Court previously 12 issued two substantive Dismissal Orders in an effort to assist Plaintiffs with ascertaining 13 the viability of claims and theories of liability as they pertain to the facts as best 14 understood at the time. See Doc. Nos. 18, 27. The Court incorporates those Orders by 15 reference here. And yet, despite repeated instruction, Plaintiffs have once again put 16 before the Court a pleading that is inoperable as drafted. Plaintiffs have failed to do the 17 bare minimum to cure the previously identified deficiencies or otherwise conform their 18 pleading to comply with the Court’s Orders. For example, the Court has twice informed 19 Plaintiffs that there is no such thing as a “survival action” claim. And yet, in five 20 pleadings, including this proposed Fourth Amended Complaint, Plaintiffs have included a 21 claim, often separately, entitled “survival.” Plaintiffs have never responded to either the 22 County’s argument or the Court’s Orders that such a claim does not exist. And yet it has 23 persisted in the face of two Court Orders and despite a total absence of legal authority. 24 In a footnote in both the Third and Fourth Amended Complaints, Plaintiffs 25 supplied a footnote, seemingly in an effort to address this glaring issue: 26 On May 4, 2022, the Court issued an extensive 20-page ruling on the County’s 27 motion to dismiss. The Court granted in part and denied in part the County’s 28 motion. The Court dismissed portions of the second cause of action, third 1 cause of action, and the fourth cause of action in its entirety. In its Order, the Court ruled this Complaint will be the operative complaint moving forward. 2 As such, due to the complexity of the Court’s Order, Plaintiff will maintain 3 the complaint as it was but for making the two changes directed by the Court. See Dkt.27, 20:4-9; See TAC ¶ 24 and Sixth Cause of Acton. 4

5 TAC at 2 fn.1; FAC at 2 fn.1. 6 Any complexity in the Court’s Dismissal Orders has been the result of Plaintiffs’ 7 pleading. 8 Plaintiffs are seeking to expand the scope of this case on the eve of summary 9 judgment, and the new claims in the Fourth Amended Complaint are neither clearly nor 10 precisely pleaded. For example, in addition to the untenable “survival action” claim, see 11 FAC at 61, and the pressing of a claim for professional negligence against “All 12 Defendants,” despite having already been informed that this claim cannot be pursued 13 against the County, see Doc. No. 27 at 14, Plaintiffs’ proposed seventh cause of action is 14 another splattering of potential bases for liability against Ms. Quiroz and/or the County. 15 Simply put, this Fourth Amendment Complaint does not put Defendants on fair notice of 16 what their claims are and the grounds upon which they rest. Bell Atl. Corp. v. Twombly, 17 550 U.S. 544, 555 (2007). The Court therefore finds that Defendants would be 18 prejudiced by allowing amendment. 19 Diligently propounding discovery is not the same as diligently complying, or 20 attempting to comply, with Court Orders. In the latter respect, the Court finds that 21 Plaintiffs have not been diligent. Accordingly, because the Court finds that Plaintiffs 22 have not demonstrated good cause to amend the Scheduling Order under Rule 16, the 23 Court DENIES the remainder of Plaintiffs’ motion. 24 However, even assuming the Court were to find that Plaintiffs have demonstrated 25 good cause, the applicable Foman factors weigh against the remainder of Plaintiffs’ 26 proposed amendment. For the reasons discussed above, Plaintiffs have unduly delayed 27 seeking amendment and the submission of yet another untenable pleading is not an 28 indicator of good faith. Further, the Court finds that Defendants would be prejudiced by 1 || permitting the addition of these new claims and theories of liability. Plaintiffs’ failure to 2 || plead or otherwise pursue these claims earlier, or name Ms. Quiroz as a defendant, 3 ||narrowed the scope of this case and discovery. Fact discovery is closed, and the case is 4 ||on the eve of summary judgment. See Doc. No. 167. To allow amendment beyond the 5 ||naming of two previously unidentified Does would, at this juncture, require yet another 6 || extension of discovery and the related deadlines. And, as noted above, Plaintiffs are 7 || already on their fourth pleading. Liberality on these facts is not warranted. 8 IV. CONCLUSION 9 Based upon the foregoing, the Court GRANTS IN PART and DENIES IN PART 10 || Plaintiffs’ motion for leave to amend. Plaintiffs are permitted to amend their pleading to 11 ||name Janine Sparks and Christopher Kagay as Defendants on their preexisting claims, 12 || which they pleaded against these individuals as “Does.” To the extent they wish to do so, 13 must file a Fourth Amended Complaint that complies with this Order on or before 14 || January 19, 2024. The Court DENIES the remainder of Plaintiffs’ motion. 15 IT IS SO ORDERED. 16 ||Dated: January 16, 2024 17 WMiaths LTUu- / hiphlr 18 HON. MICHAEL M. ANELLO 19 United States District Judge 20 21 22 23 24 25 26 27 28