Morton v. County of San Diego

Opinion

1 2 3 4 5 6 7 10 11 MARILYN MORTON, et al., Case No. 21-cv-1428-MMA-DDL

12 Plaintiffs, ORDER DENYING MOTION TO 13 v. DISMISS FOURTH AMENDED COMPLAINT 14 COUNTY OF SAN DIEGO, et al.,

15 Defendants. [Doc. No. 202] 16 17 18 Pending before the Court is Defendants County of San Diego and Janine Sparks’ 19 motion to dismiss. Doc. No. 202. Plaintiffs Marilyn Morton and Dean Morton filed a 20 response in opposition, to which the moving defendants replied. See Doc. Nos. 208, 209. 21 The Court found the matter suitable for determination on the papers and without oral 22 argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. 23 See Doc. No. 212. For the following reasons, the Court DENIES the motion. 25 The Court has issued several substantive orders detailing Plaintiffs’ factual 26 allegations, see, e.g., Doc. Nos. 18, 27, 185, which have essentially never varied. So the 27 Court does not recite them again here. Instead, the Court provides the following 28 abbreviated summary of the procedural history of this case. 1 On August 9, 2021, Marilyn Morton and Dean Morton initiated this civil rights 2 action pursuant to 42 U.S.C. § 1983. Doc. No. 1. Their claims stem from the suicide of 3 their son, Joseph Earl Morton (“Mr. Morton”), while in the custody of the San Diego 4 County Sheriff’s Department at the Vista Detention Facility on May 17, 2020. 5 Thereafter, Plaintiffs amended their Complaint once voluntarily and twice in response to 6 a Rule 12(b)(6) motion. See Doc. Nos. 8 (First Amended Complaint), 20 (Second 7 Amended Complaint), 28 (Third Amended Complaint). Nearing the end of discovery, 8 and after the amended pleadings deadline had passed, Plaintiffs filed a motion for leave 9 to amend. Doc. No. 143. The Court largely denied Plaintiffs’ request but permitted 10 amendment solely to the extent they sought leave to name Janine Sparks and Christopher 11 Kagay—two previously unidentified “Does”—as defendants to their preexisting claims. 12 Doc. No. 185. On January 30, 2024, Plaintiffs filed their Fourth Amended Complaint. 13 Doc. No. 190 (“FAC”). Defendants County of San Diego and Janine Sparks now move 14 to dismiss Plaintiffs’ claims against them pursuant to Rule 12(b)(6). 15 Relevant here, the dispositive motions deadline is April 19, 2024. See Doc. 16 No. 193. 18 As an initial matter, the County of San Diego has already had three bites at the 19 Rule 12(b)(6) apple. See Doc. Nos. 6, 10, 21. At round four, the County opted to answer 20 rather than challenge the sufficiency of the same allegations, again. See Doc. No. 31. 21 Thereafter, leave to amend was granted solely to name Ms. Sparks and Mr. Kagay as 22 defendants. Thus, practically speaking, the County has already responded to the 23 allegations and claims against it by filing an Answer to the Third Amended Complaint. 24 Of course, to the extent Plaintiffs’ Fourth Amended Complaint includes 25 substantive additions, their amendment was improper. But it appears from the Court’s 26 comparison of Plaintiffs’ Third and Fourth Amended Complaints that Plaintiffs complied 27 with the Court’s order on their motion for leave to amend, and that no substantive 28 changes were made. 1 The County does not take issue with what Plaintiffs added to their amended 2 pleading. Rather, the County largely challenges what impermissibly remains. In ruling 3 on Plaintiffs’ motion for leave to amend, see Doc. No. 185, the Court recounted the 4 history of Plaintiffs’ pleadings, the parties’ motion practice, and the Court’s prior 5 Dismissal Orders, see Doc. Nos. 18, 27. The Court incorporates those orders by 6 reference here. In short, Plaintiffs repeatedly failed to cure deficiencies, including 7 that: (1) Plaintiffs cannot seek punitive damages against the County under § 1983; and 8 (2) Plaintiffs as individuals cannot bring claims for failure to summon and professional 9 negligence as those claims belong to Mr. Morton. These legal deficiencies are important 10 and yet easily fixable. Nevertheless, they have persisted. 11 But at this point, it is irrelevant. The Court has already addressed these issues. 12 And the County has either already made these same arguments, successfully, or has failed 13 to address these issues previously. See Fed. R. Civ. P. 12(g)(2); see also Davidson v. 14 Countrywide Home Loans, Inc., No. 09-CV-2694-IEG (JMA), 2011 U.S. Dist. LEXIS 15 33404, at *11 (S.D. Cal. Mar. 29, 2011) (“Rule 12(g) applies to situations in which a 16 party files successive motions under Rule 12 for the sole purpose of delay . . . .”) (internal 17 quotation marks and citations omitted). For example, the County argues that Dean 18 Morton lacks standing to pursue a wrongful death claim because he did not comply with 19 the California Tort Claims Act. See Doc. No. 202-1 at 16–17. But Mr. Morton has 20 consistently pleaded a wrongful death claim by way of Plaintiffs’ Complaint, First 21 Amended Complaint, Second Amended Complaint, and Third Amended Complaint. And 22 yet the County never moved to dismiss the claim on this basis. The County also, again, 23 complains that Plaintiffs: did not delete an allegation pertaining to a previously dismissed 24 theory of Monell liability, see id. at 13–14; still impermissibly seek punitive damages 25 from the County under § 1983, see id. at 14; and failed to correct the subheadings 26 regarding who brings Claims 3 and 5, see id. at 14–15. The County is splitting an already 27 dangerously thin hair. Legally incorrect claims, or theories of liability that have already 28 been dismissed, will not sneak through to judgment merely because Plaintiffs failed to 1 make these corrections. Regardless of these technical issues, the County has been on 2 notice of the substance of Plaintiffs’ viable claims for no less than two years. This case is 3 on the eve of summary judgment and the claims and allegations against the County in 4 Plaintiffs’ Fourth Amended Complaint must proceed to the dispositive motions phase. 5 Accordingly, the Court DENIES the County’s motion to dismiss. 6 Next, Ms. Sparks, one of the newly added defendants, moves to dismiss Plaintiffs’ 7 claims against her. As to Plaintiffs’ Fourteenth Amendment medical care claim, 8 Ms. Sparks argues that Plaintiffs fail to plausibly plead her objective deliberate 9 indifference or that her actions caused Mr. Morton’s death. Alternatively, Ms. Sparks 10 asserts that she is entitled to qualified immunity. 11 Beginning with the latter, “[t]he Supreme Court has ‘repeatedly . . . stressed the 12 importance of resolving immunity questions at the earliest possible stage of litigation.’” 13 Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (quoting Hunter v. Bryant, 502 U.S. 14 224, 227 (1991)). However, the Ninth Circuit has found that “[d]etermining claims of 15 qualified immunity at the motion-to-dismiss stage raises special problems for legal 16 decision making,” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018), particularly 17 where the Court is “aided only by the skeletal . . . factual picture sketched out in the 18 complaint,” Kwai Fun Wong v. United States INS, 373 F.3d 952, 956 (9th Cir. 2004). 19 “When, as here, defendants assert qualified immunity in a motion to dismiss under Rule 20 12(b)(6), dismissal is not appropriate unless we can determine, based on the complaint 21 itself, that qualified immunity applies.” O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 22 2016) (internal citation omitted)). 23 This case is not in the early stages of litigation. And Ms. Sparks is not entitled to 24 qualified immunity under the Rule 12(b)(6) standard on this record. The Ninth Circuit 25 has explained that “[i]f the operative complaint ‘contains even one allegation of a 26 harmful act that would constitute a violation of a clearly established constitutional right,’ 27 then plaintiffs are ‘entitled to go forward’ with their claims.” Keates, 883 F.3d at 1235 28 (quoting Pelletier v. Fed. Home Loan Bank of San Francisco, 968 F.2d 865, 872 (9th Cir. 1 1992)). Here, Plaintiffs allege that Ms. Sparks was aware she was ordered by Alto to 2 perform a suicide assessment follow-up within 24 hours and did not. FAC ¶¶ 16, 72. 3 Not only did Ms. Sparks allegedly not perform the assessment within 24 hours, but 4 according to Plaintiffs, she failed to do so for four days despite being prompted each day 5 with a reminder that the appointment was still pending. Id. ¶ 75. Plaintiffs allege that 6 she intentionally failed to perform the assessment because she was afraid to enter the 7 COVID quarantine housing. Id. ¶ 72. And Plaintiffs plead that her failure to perform this 8 assessment caused Mr. Morton’s mental health to deteriorate without psychiatric 9 treatment and provided him with the means and opportunity to commit suicide. Id. 10 ¶¶ 76–77. 11 Based upon the totality of the allegations against Ms. Sparks, which the Court must 12 accept as true for the purpose of resolving this motion, it is plausible that her actions were 13 unreasonable and caused Mr. Morton’s death, and that the consequences of her actions 14 were obvious. For these reasons, the Court finds that Plaintiffs have adequately pleaded 15 Ms. Sparks’ objective deliberate indifference in violation of the Fourteenth Amendment. 16 Given the late stage of this proceeding and the limited factual record before the Court, 17 final resolution of issues such as causation and whether the right was clearly established 18 are better suited for summary judgment. But on this record, Plaintiff has plausibly 19 pleaded a violation of a clearly established right. See Wakefield v. Thompson, 177 F.3d 20 1160, 1165 (9th Cir. 1999) (“Following Estelle, we have held that a prison official acts 21 with deliberate indifference when he ignores instructions of the prisoner’s treating 22 physician or surgeon,” including for reasons “unrelated to the medical needs of the 23 prisoner”) (internal quotation marks omitted). Thus, the Court cannot say that 24 Ms. Sparks’ entitlement to qualified immunity is clear on the face of the Fourth Amended 25 Complaint. The Court therefore DENIES Ms. Sparks’ motion on this basis. 26 Turning to Plaintiffs’ state law claims, Ms. Sparks first argues that she is immune 27 from liability under California Government Code §§ 844.6, 845.6, 855.6, and 855.8. See 28 Doc. No. 202-1 at 25. Ms. Sparks has devoted eleven lines of argument to her asserted 1 entitlement to immunity under four California statutes. The Court is not persuaded on 2 this record that Ms. Sparks is statutorily immune from liability under California law and 3 therefore DENIES her motion on this basis. 4 Substantively, Ms. Sparks challenges Plaintiffs’ failure to summon medical care, 5 wrongful death, and professional negligence claims. A failure to summon medical care 6 claim under California Government Code § 845.6 requires a showing that: (1) “the 7 employee is acting within the scope of his [or her] employment”; (2) “the employee 8 knows or has reason to know that the prisoner is in need of immediate medical care”; and 9 (3) “he [or she] fails to take reasonable action to summon such medical care.” Villarreal 10 v. Cty. of Monterey, 254 F. Supp. 3d 1168, 1187 (N.D. Cal. 2017). 11 Ms. Sparks argues that Plaintiffs do not plead she was aware of a risk of serious 12 harm or any need for immediate care. Doc No. 202-1 at 26. Ms. Sparks points to the fact 13 that Plaintiffs expressly plead that Ms. Sparks did not have any interactions with 14 Mr. Morton while he was in the County jail. Id. The Court agrees that Plaintiffs’ claim 15 for failure to summon is tenuous as pleaded. It appears that Plaintiffs take issue with 16 Ms. Sparks’ failure to provide medical care herself, which bears on the adequacy of 17 medical care Ms. Sparks provided and not whether she failed to summon someone else to 18 provide medical care. However, the Court finds that Plaintiffs’ allegations are sufficient 19 to survive dismissal. 20 Plaintiffs plausibly plead that Mr. Morton made suicidal comments and actively 21 attempted to harm himself, which resulted in his initial placement in Enhanced 22 Observation Housing—a housing placement within the Inmate Suicide Program. See, 23 e.g., FAC ¶ 9. Alto performed a follow-up suicide assessment and noted, among other 24 things, that Mr. Morton had verbalized suicidal intent. Id. ¶ 10. Although Alto assessed 25 him as a “low risk for suicide,” she ordered that he receive a follow-up suicide 26 assessment within 24 hours. Id. ¶¶11–12. The Court cannot determine on a motion to 27 dismiss whether Ms. Sparks actually knew or should have known Mr. Morton was in 28 need of immediate care—for example, suicide prevention intervention. But because 1 Sparks was the Mental Health Clinician assigned to Mr. Morton’s housing module, 2 because Plaintiffs plead that Ms. Sparks had reviewed the Electronic Health Record 3 ||and knew she was ordered to perform a suicide assessment, see id. | 16, it is plausible on 4 || this record that Ms. Sparks knew or should have known Mr. Morton was in need of 5 ||immediate medical care and failed to take reasonable action. See Kelly v. Cty. of Orange, 6 ||No. SA CV 20-0153 1-DOC-JDE, 2022 U.S. Dist. LEXIS 18516, at *12 (C.D. Cal. Jan. 4, 7 || 2022) (“Plaintiffs’ TAC adequately suggests that Defendants all had constructive 8 knowledge of Decedent’s medical history while she was in the jail by way of her 9 recorded past and current suicidal ideation, prescription history, and behavior.’’). 10 Ms. Sparks’ remaining arguments are unpersuasive. First, Ms. Sparks asserts that 11 || because Plaintiffs’ failure to summon claim is deficient, their wrongful death claim fails 12 well. See Doc. No. 202-1 at 28. But Plaintiffs’ failure to summon claim is not subject 13 dismissal. Moreover, Plaintiffs rely on all “of the conduct alleged above” in support of 14 || their wrongful death claim, FAC §] 130, which includes the allegations of deliberate 15 || indifference in violation of the Fourteenth Amendment. Finally, as noted above, the issue 16 of causation is not appropriate for resolution on this record and at this stage. See id. at 17 ||27. For these reasons, the Court DENIES Ms. Sparks’ motion to dismiss. 19 Based upon the foregoing, the Court DENIES the County of San Diego and Janine 20 || Sparks’ motion to dismiss without prejudice to raising these arguments at summary 21 ||judgment. The Court RESETS the dispositive motions deadline, see Doc. No. 193, to 22 31, 2024. The Court will not extend this deadline further unless a sufficiently 23 || persuasive showing of good cause is made. 25 ||Dated: April 16, 2024 26 Maths Uu- / hiphlr 27 HON. MICHAEL M. ANELLO 28 United States District Judge