Ottele v. Martinez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUSAN OTTELE, Case No. 1:22-cv-00187-JLT-CDB

12 Plaintiff, ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART FINDINGS 13 v. AND RECOMMENDATIONS RE DEFENDANTS’ MOTION FOR SUMMARY 14 OSCAR MARTINEZ, et al., JUDGMENT

15 Defendants. (Docs. 57, 72)

17 I. INTRODUCTION 18 Susan Ottele brings this action on her behalf and on behalf of the Estate of Adam J. 19 Collier, who died by suicide while incarcerated at Kern Valley State Prison (KVSP) in Delano, 20 California on October 17, 2020. Defendants are two Corrections Officers who were on duty in 21 Coller’s unit the day Collier died: Oscar Martinez and Aaron Hodges1. On February 16, 2024, the 22 assigned magistrate judge issued Findings and Recommendations to grant Defendants’ motion for 23 summary judgment in its entirety. (Doc. 72.) The Findings and Recommendations concluded that 24 no disputes of material fact remained as to Plaintiffs’ Eighth Amendment deliberate indifference 25 to medical needs and Fourteenth Amendment loss of companionship (substantive due process) 26 claims, and, relatedly, that Defendants are entitled to summary judgment on Plaintiffs’ Bane Act 27

1 1 claim, which requires proof of an underlying constitutional violation. (Id. at 7–13.) Finally, the 2 Findings and Recommendations concluded that Defendants are entitled to summary judgment on 3 Plaintiff’s wrongful death and survival action because Defendants’ conduct was not the moving 4 force behind Collier’s death by suicide. (Id. at 13–18.) 5 On March 1, 2024, Plaintiff and Defendants each filed timely objections to the findings 6 and recommendations, (Docs. 75, 76), and Defendants timely filed a response to Plaintiff’s 7 objections. (Doc. 77.) According to 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo 8 review of this case. Having carefully reviewed the entire file and for the reasons set forth below, 9 the Court adopts in part and declines to adopt in part the Findings and Recommendations. 10 II. SUMMARY OF THE PARTIES’ OBJECTIONS 11 Defendants concur with the magistrate judge’s ruling and object only to avoid waiver on 12 appeal of arguments pertaining to qualified immunity, an issue not addressed by the Findings and 13 Recommendations. (Doc. 75.) 14 Plaintiff objects that the magistrate judge improperly excluded from consideration on 15 summary judgment the expert declaration of James Lee, M.D., filed by Plaintiff in support of her 16 opposition to Defendants’ motion. (Doc. 76 at 3–6.) Plaintiff also argues that the magistrate judge 17 improperly declined to rule on her evidentiary objections and rejected her argument that 18 Defendant Hodges’ supplemental report is inadmissible double hearsay. (Id. at 11–12.) 19 Additionally, Plaintiff argues that even though the magistrate judge acknowledged the existence 20 of certain facts that support Plaintiff’s case, the Findings and Recommendations nonetheless 21 erroneously concluded there were no triable issues. (Id. at 8–11.) 22 III. FACTUAL BACKGROUND 23 The Findings and Recommendations provided the following Factual Background: 24 Adam J. Collier was an inmate at Kern Valley State Prison (“KVSP”) at the time of his passing on October 17, 2020. (Doc. 13 ⁋ 1.) Collier 25 entered the custody of the California Department of Corrections and Rehabilitation (“CDCR”) on March 21, 2016, and was transferred to 26 KVSP on March 10, 2020. (Doc. 59-4 p. 101.) Collier has a long- documented history of suicide attempts via various methods. 27 According to CDCR records, those methods include attempted overdose by ingesting pills in 2006 (listed as “severe”), stabbing 1 with a paperclip in July 2019 (“minor-superficial”) as well as an unspecified attempt to cut himself in August 2019 (“moderate”). (Id. 2 p. 12.) 3 Notably, on May 23, 2020, Collier committed self-harm (“minor- superficial”) by using his toenail clippers to excoriate the top layer 4 of his neck as well as the skin on his bicep. (Id.) According to a medical health form filed by KVSP staff on May 29, 2020, Collier 5 denied intent to die, and stated that he harmed himself to avoid an unpaid drug debt. (Id. at 12-13.) The form documented that Collier 6 had a history of high rescue, low risk behaviors without intent to die. (Id.) 7 After Collier’s suicide attempt in May 2020, he was transferred to 8 Facility C, Building eight, cell 221. (Doc. 57-2 ⁋ 1.) Cell 221 was located on the upper tier of the building. (Id.) Facility C is a special 9 housing unit for inmates enrolled in the Enhanced Outpatient Program (“EOP”). (Doc. 59-4 pp. 33, 84.) Inmates enrolled in the EOP receive a 10 higher level of care from correctional officers. (Id. p. 33.) In turn, correctional officers assigned to Facility C receive training on suicide 11 prevention, including how to identify telltale signs of suicidal ideation. (Id.) 12 On October 17, 2020, Plaintiff was given breakfast in his cell during the 13 morning hours. (Id. p. 100.) Plaintiff did not report for the inmate count at noon. (Id.) Defendants Hodges and Martinez worked as floor officers 14 in KVSP in the same facility where Collier was housed. Defendants’ shift on October 17, 2020, lasted from 2:00 p.m. to 10:00p.m. (Doc. 59- 15 2 p. 2; Doc. 59-4 p. 40.) Defendants were responsible for conducting periodic checks on the inmates housed there. These checks included 16 confirming whether the inmates were alive by visually observing them and counting “breathing flesh.” (Doc. 59-4 p. 41.) Defendant Martinez 17 conducted the count in the first tier of cells numbered 101 to 132, while Defendant Hodges conducted the count of the cells in the second tier. 18 (Id. p. 82.) On the date Collier died by suicide, a document to be read by correctional officers that sets forth their responsibilities while on 19 duty – referred to as a “post order” – provides at Paragraph 2 that the floor officers were primarily responsible for maintaining order and 20 security “for all areas of the housing unit.” (Id. pp. 35, 40.) Paragraph 2 also provides: “You shall provide observation/coverage of all activities 21 within your area of responsibility.” (Id.) 22 In a supplemental report drafted by Defendant Hodges at the request of J. Melvin two days after Collier’s death by suicide, Hodges reported that 23 he observed Collier “in his cell on my [Hodges’] first security check. He was standing at the back of the cell and I asked him, ‘Hey what’s up 24 Collier.’ Inmate Collier responded back, ‘Not much man.’” (Doc. 57-4 p. 50.) 25 During his second inmate check at approximately 3:32 p.m., Hodges 26 approached Collier’s cell and noticed that a bed sheet had been hung up, which partially blocked Hodges from fully seeing Collier. (Doc. 57-2 ⁋ 27 6) (citing Doc. 57-5 “Welsh Decl.” ⁋ 2 & Ex. A).) Hodges attempted to get Collier’s attention by banging his hand on the cell door and shouting 1 then activated his personal alarm device and Martinez responded to Hodges’ alarm by going to Hodges’ location at Collier’s cell. This was 2 the first time that Martinez was on the second tier of the building during his shift that day. Other prison staff also responded to the alarm, and 3 Collier was removed from his cell in an unresponsive condition. (See Doc. 59-2 p. 3 n.7.) 4 According to the coroner’s report, Collier was transported to a treatment 5 and triage area at around 3:40 p.m., and Collier was pronounced dead at 4:00 p.m. (Doc. 59-4 p. 100.) Defendant Hodges advised Deputy 6 Coroner Mary Abidayo (“Abidayo”) that Collier had previous suicide attempts, including one attempt three years earlier during which Collier 7 used a sharp object to cut both sides of his neck, and prior incidents where Collier cut his own legs. (Id. at 101.) According to Abidayo’s 8 report, Collier had a single cell designation due to in-cell violence. (Id.) 9 Abidayo arrived at Collier’s cell at around 6:35 p.m. and noted that there was blood at the head of Collier’s bed. A plastic bag with blood-soaked 10 towels also was located at the head of the bed. (Id.) There was also a broken nail clipper at Collier’s desk which had blood present on it. (Id.) 11 Abidayo found that Collier’s death was due to exsanguination and ruled his death a suicide. (Id. at 103.) 12 Collier previously attempted suicide with nail clippers, as an inmate of 13 KVSP, less than five months prior to his successful attempt. Thereafter, according to a “Mental Health Form” logged by a CDCR clinical 14 psychologist on May 29, 2020, “[k]eeping sharp objects away will assist to keep [Collier] safe.” (Doc. 59-3 p. 9, #5 (citing Doc. 59-6 “Kantorová 15 Decl.” ⁋ 5); Doc. 59-4 p. 19 (AG010923).) There were no medical or mental health care staff orders prohibiting Collier from possessing sharp 16 objects, including nail clippers, during the month before his death. (Doc. 57-3 “Martinez Decl.” ⁋⁋ 7, 13; Doc. 57-4 “Hancock Decl.” ⁋ 3.) Officer 17 Martinez was not aware that Collier was ever prohibited from possessing nail clippers, nor that Collier ever possessed them. (Martinez 18 Decl. ⁋ 8.) Martinez was not aware that Collier previously attempted suicide, cut himself, or had cuts, marks, or other visible indications that 19 he previously cut himself. (Id. ⁋⁋ 9-11.) Further, Martinez was only ever aware of a calf injury on Collier’s leg, which to his knowledge was not 20 the result of having attempted suicide or inflicted self-harm. (Id. ⁋ 12.) Neither Martinez nor Hodges was authorized to access an inmate’s 21 medical or mental health records, nor were they aware of Collier’s mental health condition. (Id. ⁋ 13.) If an inmate housed in the EOP was 22 required to be treated differently than other inmates generally were treated, for example through protective or precautionary measures, then 23 this action was required solely at the direction of the KVSP medical or mental health staff. (Id.) There is no record evidence that Martinez or 24 Hodges ever was directed to take any such measures concerning Collier. (Martinez Decl. ⁋ 13; Hancock Decl. ⁋ 3.) 25 26 (Doc. 72 at 2–5 (cleaned up; footnotes omitted).) 27 The Court finds that this recitation accurately frames the factual record in the light most favorable to the Plaintiff but some additional facts are material to its determination. After 1 addressing relevant objections to the magistrate judge’s evidentiary determinations, the Court 2 articulates those additional factual findings and then evaluates the motion for summary judgment 3 de novo, as is required by 28 U.S.C. § 636(b)(1). 4 IV. DISCUSSION 5 A. Objections Re Treatment of Evidence and Related Factual Findings 6 1. Defendant Hodges’ Supplemental Report 7 A key piece of evidence in this case is the supplemental report (entitled “Staff Narrative”) 8 prepared by Defendant Hodges on October 19, 2020, a few days after Collier died. (Doc. 57-4 at 9 50.) In that supplemental report, Hodges indicates that on his “first security check,” Hodges 10 observed Collier in his cell. According to Hodges: 11 He was standing at the back of the cell and I asked him, “Hey what’s up Collier.” Inmate Collier responded back, “Not much man.” 12 13 (Id.) Defendant Hodges passed away in early 2023. (Doc. 33.) The supplemental report, which 14 appears to be the only recorded information about Hodges’ first security check, was offered by 15 Defendants in support of their motion for summary judgment through the Declaration of Joshua 16 Welsh, a Correctional Sergeant at KVSP. (See Doc. 59 at 12; Doc. 57-5 at 50.) 17 Plaintiff objected to the consideration of this evidence on the ground that Sergeant Welsh 18 lacks personal knowledge of the material contained in the report and that the report contains 19 multiple layers of hearsay not subject to any hearsay exception. (See Doc. 59-1 at 2–3.) The 20 magistrate judge recommended overruling this objection because “the report satisfies the public 21 records and business records exceptions to hearsay. Fed. R. Evid 803(6) and (8); Greer v. Cnty. of 22 San Diego, No. 19cv378-JO-DEB, 2023 WL 2316203, at *7 (S.D. Cal. Mar. 1, 2023) (finding 23 investigative records following an inmate suicide satisfied the public record exception); Anglin v. 24 Pratti, 643 F. Supp. 3d 1077, 1085-86 (E.D. Cal. 2022) (finding written statements by floor 25 officers pertaining to inmate complaint admissible under the public records exception).” (Doc. 72 26 at 16 n. 6.) Plaintiff does not at this stage appear to contest this logic as to the first layer of 27 hearsay but does object that it does not cure the double hearsay, namely the presentation of any 1 77 at 6) that, at least for purposes of the present motion, Collier’s statements are not being offered 2 for their truth and therefore are not hearsay; rather, Collier’s statements simply serve as evidence 3 that Collier and Hodges spoke to one another. Thus, the magistrate judge was correct to consider 4 Hodge’s supplemental report on summary judgment. Even so, the Court’s additional findings of 5 fact below create a dispute as to the assertions in the supplemental report. 6 2. Collier’s Mental Health Records 7 In opposition to the Defense motion for summary judgment, Plaintiff presented Adam 8 Collier’s mental health records, which reflect a history of self-harm, including several incidents 9 classified as suicide attempts, once in 2006, once in 2017, twice in 2019, and lastly on May 23, 10 2020, all before his transfer to the EOP. (Doc. 59-4 at 11–13.) Overall, the mental health records 11 indicate that Collier had a history of “high rescue low risk [behaviors] without intent to die.” (Id. 12 at 13.) Among other things, Collier had a note in his file indicating that “Keeping sharp objects 13 away will assist to keep him safe.” (Id. at 19.) 14 However, as the Findings and Recommendations indicate (Doc. 72 at 5), it is undisputed 15 that neither Hodges nor Martinez had access to these records. (See Doc. 59-2 at 5.)2 Plaintiff 16 argues in objection to the Findings and Recommendations that the existence of the mental health 17 records viewed alongside the fact that Collier was in EOP housing “provides a favorable 18 inference . . . that Defendants knew Mr. Collier was in substantial danger of killing himself, or 19 that the risk was obvious given they worked in the EOP facility and were trained on suicide 20 prevention and how to identify signs of suicidal ideation.” (Doc. 76 at 10.) This is not persuasive 21 because an Eight Amendment claim requires actual, subjective knowledge of a substantial risk of 22 serious harm. See Farmer v. Brennan, 511 U.S. 825, 829 (1994). The Court may not presume 23 2 Plaintiff “disputed” this fact by stating: 24 Mr. Collier was assigned to the Enhanced Out Patient Program (“EOP”), a mental health program within 25 KVSP for inmates who are chronically suicidal or chronically mentally ill. Custody staff assigned to the EOP are required to record and share with clinical staff any observation that might affect an inmate's 26 treatment plan. Custody staff assigned to the EOP are also able to make a referral of an inmate believed to be suicidal. 27 (Doc. 59-2 at #15.) But the fact that custody staff, such as Martinez and Hodges, must report and share their 1 these Defendants had knowledge of the content of Plaintiff’s medical records. 2 Plaintiff also points out that the official autopsy report indicates that: “Defendant Hodges 3 advised [the] Deputy Coroner . . . that Collier had previous suicide attempts, including one 4 attempt three years earlier during which Collier used a sharp object to cut both sides of his neck, 5 and prior incidents where Collier cut his own legs.” (See Doc. 76 at 10 n. 4 (citing Doc. 59-4, at 6 100–101).) Though this establishes that Hodges had knowledge of certain prior suicide attempts, 7 this does not establish (or plausibly support an inference given the contrary record evidence) that 8 Hodges had access to Collier’s complete mental health file. 9 3. Dr. Lee’s Declaration and Expert Report 10 The magistrate judge found it “likely” that Dr. Lee’s supplemental declaration should be 11 excluded because it included new opinions that did not fall within the scope of his expert report, 12 and that this delayed disclosure was neither justified nor harmless. (See Doc. 72 at 16–17.) 13 Nonetheless, the Findings and Recommendations assumed for purposes of analyzing the motion 14 for summary judgment that Dr. Lee’s declaration was admissible, yet still found it would not 15 create an issue of material fact. (Id. at 17–18.) The Court likewise finds it unnecessary to resolve 16 the objection to Dr. Lee’s declaration at this time, but for a different reason: Dr. Lee’s declaration 17 does not change the outcome as to any claim in the case because, as explained in detail below, his 18 expert report, to which Defendants do not object, is sufficient on its own to create material 19 disputes of fact. 20 In his expert report, Dr. Lee opines that Plaintiff’s death was the result of exsanguination 21 from a wound to a “subcutaneous muscular vein” Collier inflicted upon his own left forearm 22 using a nail clipper. (Doc. 59-7 at 6.) Due to the nature of this injury, Dr. Lee estimated that 23 Collier lost blood at the rate of 10 ml/minute. (Id. at 8.) At that rate, according to Dr. Lee, it took 24 Collier 4.16 hours to lose 2,500 ml of blood, the amount required to cause death for a person of 25 Collier’s size. (Id.) 26 Dr. Lee’s report also described the various stages of blood loss and the symptoms that 27 would likely result at each stage as follows: 1 The average adult weighing 150-180 lbs. [Decedent’s weight 176 lbs.] should have 4.5 to 5.7 liters of blood in their body. Based on 2 Advanced Trauma Life Support (“ATLS”) classification guidelines, the different stages of shock [body’s response to blood loss] are as 3 follows 4 Stage 1: blood loss up to 750 ml or 15% of blood volume, heart rate is minimally elevated or normal. Typically, there is 5 no change in blood pressure, or respiratory rate. 6 Stage 2: blood loss 750-1500 ml or 15-30% blood volume. Heart rate and respiratory rate become elevated (100 BPM- 7 120 BPM. 20RR-24RR]. Pulse pressure begins to narrow, but systolic blood pressure may be unchanged or slightly 8 decreased. 9 Stage 3: blood loss 1,500-2,000 ml, or 30-40% of blood volume. A significant drop in blood pressure and changes in 10 mental status occurs. Heart rate [>120 BPM] and respiratory rate are significantly elevated Urine output declines. 11 Capillary refill is delayed. 12 Stage 4: blood loss > 2,000 ml or >40% of blood volume. Hypotension [BP <90/60] with narrow pulse pressure [<25 13 mmHg] Tachycardia becomes more pronounced [>120 BPM] and mental status becomes increasingly altered. Urine output 14 is minimal or absent. Capillary refill is delayed. 15 (Id. at 7.) 16 It is undisputed that Collier was found unresponsive in his cell at 3:32 pm. The Court 17 credits for purposes of summary judgment Dr. Lee’s opinion that Collier had lost at least 2,500 18 ml of blood by this time. At 10ml/minute (or 600 ml/hour), Dr. Lee’s report could likewise 19 support a finding that Collier lost approximately 900 ml of that total in the 90 minutes between 20 2:00 pm and 3:32 pm. Working backwards with this information, a finder of fact could conclude 21 that Collier must have lost at least 1,600 ml (2,500 ml – 900 ml) of blood by 2:00 pm to be 22 deceased by 3:32 pm. This would have placed him within ATLS Stage 3 (30-40% blood loss) at 23 2:00pm, which is characterized by a “significant” drop in blood pressure and changes in mental 24 status. 25 It is difficult to square the symptoms associated with ATLS Stage 3 with the innocuous 26 interaction Hodges described in his supplemental report. (See SUF #4 (“Hodges observed Adam 27 Collier standing in the back of his cell. Hodges asked Collier, “Hey what’s up Collier.” Collier responded “Not much man.”).) Thus, it is not impossible for a finder of fact to discredit Hodges’ 1 description of a 2:00 pm interaction with Collier and to conclude that Hodges never interacted 2 with Collier at all at 2:00 pm. As discussed below, this factual finding changes the frame of 3 reference for the entire motion as to Defendant Hodges. Though the result is ultimately the same 4 as to the federal claims, the state claims survive summary judgment. 5 B. Eighth Amendment Deliberate Indifference Claim 6 The Findings and Recommendations set forth the proper general legal standard applicable 7 to this claim: 8 “[T]he Eighth Amendment’s prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth 9 Amendment’s Due Process Clause, requires the State to provide adequate medical care to incarcerated prisoners.” DeShaney v. 10 Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 198-99 (1989). To establish an Eighth Amendment claim on a condition of 11 confinement, such as medical care, a Plaintiff must show: (1) an objectively, sufficiently serious, deprivation, and (2) the official was, 12 subjectively, deliberately indifferent to the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). These two 13 requirements are known as the objective and subjective prongs of an Eighth Amendment deliberate indifference claim. Willhelm v. 14 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). 15 To satisfy the objective prong, there must be a “serious” medical 16 need. Estelle v. Gamble, 429 U.S. 87, 104 (1976). A medical need is serious if failure to treat it will result in “significant injury or the 17 wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 18 Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). “[T]he conditions 19 presenting the risk must be ‘sure or very likely to cause . . . needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Baze v. 20 Rees, 553 U.S. 35, 50 (2008) (Roberts, C.J., plurality opinion) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). 21 As to the subjective prong, there must be deliberate indifference. 22 Deliberate indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 23 the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (1994) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)); see Toguchi 24 v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“Deliberate indifference is a high legal standard”). Deliberate indifference is 25 shown when a prison official knows that an inmate faces a substantial risk of serious harm and disregards that risk by failing to take 26 reasonable measures to abate it. Farmer, 511 U.S. at 847; see also Gibson v. Cnty. of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 27 2002). 1 inference could be drawn that a substantial risk of serious harm exists,” but he “must also draw the inference.” Farmer, 511 U.S. at 2 837. “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, 3 no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted). This “subjective approach” focuses only “on what a 4 defendant’s mental attitude actually was.” Farmer, 511 U.S. at 839. See Disability Rights Montana, Inc. v. Batista, 930 F.3d 1090, 1101 5 (9th Cir. 2019) (“The second prong is met upon showing of deliberate indifference, which, as Farmer makes clear, is shown 6 adequately when a prison official is aware of the facts from which an inference could be drawn about the outstanding risk, and the facts 7 permit us to infer that the prison official in fact drew that inference, but then consciously avoided taking appropriate action.”). Of course, 8 whether a defendant possessed subjective knowledge is a factual question that is “subject to demonstration in the usual ways, 9 including inference from circumstantial evidence.” Farmer, 511 U.S. at 842. 10 The Ninth Circuit holds that “[a] heightened suicide risk or an 11 attempted suicide is a serious medical need.” Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), vacated, 563 U.S. 915 (2011), 12 opinion reinstated in relevant part, 658 F.3d 89 (9th Cir. 2011). Accord Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1018 (9th 13 Cir. 2010) (citing Conn, 591 F.3d at 1095), overruled on other grounds by Castro v. Cnty. of LA., 833 F.3d 1060 (9th Cir. 2016) (en 14 banc). Where the alleged deliberate indifference involves an inmate’s death by suicide, the Ninth Circuit has articulated the subjective test 15 as follows: “To proceed to trial, [plaintiffs] must adduce evidence raising a triable issue that [defendant knew decedent] was ‘in 16 substantial danger’ of killing himself yet deliberately ignored such risk.” See id. at 1019 (quoting Clouthier v. Cnty. of Contra Costa, 17 591 F.3d 1232, 1248 (9th Cir. 2010)) (emphasis added). See also id. (“We cannot agree, however, that the evidence supports the inference 18 that [defendant knew decedent] ‘was at acute risk of harm’ at the time he killed himself”) (quoting Conn, 591 F.3d at 1097) (emphasis 19 added). 20 (Doc. 72 at 7–9.) 21 As the Findings and Recommendations recognize, Plaintiff advanced several theories of 22 liability in the context of this claim: 23 Plaintiff asserts that as floor officers at the EOP facility, Defendants should have known that Collier was at heightened risk of suicide. 24 (Doc. 59 p. 17.) Furthermore, Plaintiff argues that given his history of suicide, Collier should have been monitored more frequently and 25 prioritized to a higher level of care. (Id. at 13.) In light of his prior self-harm using nail clippers as an inmate at KVSP, less than five 26 months prior to his death, Plaintiff also asserts Collier should never have been allowed to possess nail clippers. (Id. at 12.) Plaintiff also 27 points to Collier’s mental health safety plan, which provided that “keeping sharp objects away helps keep him safe.” (Id.) Plaintiff 1 himself, based on his requests and recommendations. (Id. (citing Kantorová Decl. ⁋ 5).) 2 3 (Doc. 72 at 10.) In addition, Plaintiff alleged that Collier was inadequately monitored. (FAC, ¶ 33 4 (“[Collier] was in a cell by himself, and had not been checked on for many hours, despite the fact 5 that Mr. Collier’s mental health disorders were readily apparent to even a casual observer.”).) 6 Overall, the magistrate judge concluded that Plaintiff failed to demonstrate a dispute of material 7 fact as to any of these theories: 8 Plaintiff presents no disputed issues of material fact as to whether Defendants either were aware that Collier presented any substantial 9 and acute risk of suicide, or inferred Collier presented such a risk, or whether any such risk was obvious. 10 11 (Id. at 11.) 12 Given that Defendants lacked access to Collier’s mental health records, the Court agrees 13 with the Findings and Recommendations that they are entitled to summary judgment as to those 14 theories of liability built upon the assumption that they were aware of information contained in 15 those records. For example, Defendants had no reason to question Collier’s placement in the EOP 16 or whether he needed a higher level of care. Regal v. Cnty. of Santa Clara, No. 22-CV-04321- 17 BLF, 2023 WL 7194879, at *6 (N.D. Cal. Oct. 31, 2023) (“[U]nder the second prong of the 18 qualified immunity analysis it was not clearly established that a correctional staff deputy, who 19 was directed by the Jail’s Mental Health staff to perform 15-minute welfare checks of a suicidal 20 inmate, was required to second-guess that directive and take additional precautions against 21 suicide.”). 22 Defendants likewise had no reason to question whether he should have been allowed to 23 possess nail clippers. It is undisputed that inmates in the EOP were generally permitted to possess 24 nail clippers and, again, nothing in the record suggests Hodges or Martinez had access to the 25 notes in Collier’s medical records suggesting that Collier would best be “kept safe” by keeping 26 him away from sharp objects. Finally, nothing in the record suggests Martinez or Hodges were in 27 involved in any aspect of determining whether Collier should be single-celled. However, Plaintiff’s failure to monitor theory demands closer scrutiny given the Court’s 1 factual findings above. Because the Defense has raised the defense of qualified immunity, (see 2 Doc. 57-1 at 11-15), the Court evaluates this issue within the qualified immunity framework. 3 1. Qualified Immunity Framework 4 The doctrine of qualified immunity protects government officials “from liability insofar as 5 their conduct does not violate clearly established or constitutional rights of which a reasonable 6 person would have known.” Stanton v. Sims, 571 U.S. 3, 4–5, (2013) (per curiam) (quoting 7 Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Plaintiffs bringing § 1983 claims against 8 individual officers therefore must demonstrate that (1) a federal right has been violated and (2) 9 the right was clearly established at the time of the violation.” Horton by Horton v. City of Santa 10 Maria, 915 F.3d 592, 599 (9th Cir. 2019) (citing Pearson, 555 U.S. at 232). A court may 11 “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity 12 analysis should be addressed first.” Pearson, 555 U.S. at 236. 13 2. Constitutional Violation 14 The Defense relies on Horton, a Ninth Circuit decision issued in 2019, but which focused 15 on applying the “clearly established law” prong of the qualified immunity analysis to an incident 16 that took place in December 2012. At that time in this Circuit, “officers who failed to provide 17 medical assistance to a detainee should have known that their conduct was unconstitutional in two 18 instances,” as set forth Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010), 19 overruled on other grounds by Castro, 833 F.3d 1060, and Conn v. City of Reno, 591 F.3d 1081 20 (9th Cir. 2010), vacated, 563 U.S. 915 (2011), opinion reinstated in relevant part, 658 F.3d 897 21 (9th Cir. 2011). 22 Clouthier concerned the suicide of a pretrial detainee, but the Ninth Circuit analyzed the 23 case under the deliberate indifference standard applicable to Eighth Amendment claims. 591 F.3d 24 at 1244–45. One defendant, a mental health provider, knew that the detainee was suicidal, that he 25 had attempted suicide multiple times, and that another staff member had placed the detainee in a 26 suicide smock and warned that he needed to be “constantly monitored throughout the day to 27 ensure his safety.” Id. at 1244. Nevertheless, the defendant removed the detainee from regular 1 eventually used to commit suicide. Id. at 1245. Under these facts, the Ninth Circuit found an 2 Eighth Amendment violation because “a jury could reasonably infer that [the defendant] knew of 3 [the detainee’s] depressive, suicidal condition and need for mental health treatment, and ‘also 4 knew of the risk of harm that he faced if denied medical attention.’” Id. 5 Conn concerned officers who, while transporting a pretrial detainee, observed her wrap a 6 seatbelt around her neck in an apparent attempt to choke herself and who then screamed “that 7 they should kill her or else she would kill herself.” 591 F.3d at 1090. The transporting officers did 8 not take the detainee to a hospital or alert jail personnel to the behavior. Id. Though she was 9 released a few hours later, she was detained the next day. Id. at 1090–91. During that second 10 detention, “less than 48 hours after the suicide threats” she hanged herself in her cell. Id. The 11 Ninth Circuit concluded that the plaintiffs presented evidence from which the jury could conclude 12 that the detainee’s medical need “was so obvious” that the officers “must have been subjectively 13 aware of it, despite their later denial of that awareness. [The detainee] attempted to choke herself 14 with a seat belt and screamed something to the effect of ‘kill me or I’ll kill myself’; these are 15 warning signs that are difficult for any observer to miss.” Id. at 1097. “When a detainee attempts 16 or threatens suicide enroute to jail, it is obvious that the transporting officers must report the 17 incident to those who will next be responsible for her custody and safety.” Id. at 1102. 18 In Horton, the defendant, Officer Brice, detained Shane Horton after he was accused of 19 having a physical altercation with his girlfriend. 915 F.3d at 596. Horton admitted to some of the 20 conduct and his girlfriend described other violent incidents to Brice. Id. Brice took Horton to the 21 police station and placed him in a holding cell without removing his belt. Id. Horton denied 22 having any medical problems, though he indicated to another officer he was feeling anxious. Id. 23 at 597. That second officer eventually left but suggested he would “do a psych or something.” Id. 24 Brice then spoke by telephone with Horton’s mother, who told the officer that her son was 25 depressed and suicidal and then asked the officer to “please watch him” and “look after him.” Id. 26 at 597–98. Instead of going immediately back to the cell, Brice first completed paperwork for 27 Horton’s transport to jail. Id. at 598. Returning to the cell approximately 27 minutes after he left 1 detainee survived the suicide attempt but suffered permanent brain damage. Id. 2 Though the Ninth Circuit did not reach a conclusion as to the first qualified immunity 3 prong, it did distinguish the facts of Horton from Clouthier and Conn: 4 The facts of Clouthier and Conn do not at all resemble this case. Officer Brice’s interactions with Horton began with his initial arrest, 5 during which Horton remained cooperative. Officer Brice also spoke with Horton's girlfriend, who informed him of Horton’s previous 6 violent episodes, but did not indicate any present suicidal intentions. At the jail, Officer Brice asked Horton if he was having any medical 7 problems, to which Horton responded in the negative. 8 Officer Brice did know that Horton, according to his mother, had been suicidal two weeks before the incident and that his mother 9 thought he remained a suicide risk. 10 Based on these facts, which are taken in the light most favorable to Horton, a reasonable officer would not have known that failing to 11 attend to Horton immediately would be unlawful under the law at the time of the incident. Horton did not attempt suicide in the presence 12 of Officer Brice, as the detainee did in Conn, 591 F.3d at 1102. Nor, as was the case in Clouthier, had he attempted suicide multiple times 13 and been deemed such a risk that medical specialists placed significant suicide prevention measures in place, measures removed 14 by the defendant. 591 F.3d at 1245. 15 915 F.3d at 601. 16 Relatedly, the Ninth Circuit found no constitutional violation in Simmons v. Navajo 17 County, 609 F.3d 1011 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d 1060. 18 There, a prisoner housed in a county jail was placed on a form of suicide watch that, by prison 19 regulation, required checks every 15 minutes. The corrections officer assigned to that area of the 20 jail failed to timely perform those checks for almost an hour, after which the prisoner was found 21 hanging in his cell. Id. at 1015–16. The plaintiffs argued that this failure constituted deliberate 22 indifference and that the officer was subjectively aware that the decedent presented a substantial 23 risk of suicide because he “previously attempted to commit suicide and was on ‘suicide watch.’” 24 Id. The Ninth Circuit disagreed, concluding that the record did not support such a finding because 25 the officer did not know of the decedent’s prior suicide attempts, that he suffered from depression 26 and was taking antidepressants, never heard the decedent make a suicidal threat or engage in any 27 other “red flag” behavior; “all [the officer] knew was that [the prisoner] was on Level II suicide 1 detainees.” Id. (“While Jasper's suicide watch status may have alerted Sergeant Warren to the 2 possibility of suicide, we cannot say that the magnitude of the risk was “so obvious that [he] must 3 have been subjectively aware of it.”). 4 Plaintiff directs the Court’s attention to Lemire v. California Department of Corrections & 5 Rehabilitation, 726 F.3d 1062 (9th Cir. 2013), which concerned the death by suicide of Robert St. 6 Jovite, who was housed in a special unit for inmates with psychiatric illnesses. Id. at 1069 (“St. 7 Jovite and [his cellmate] were classified as [Correctional Clinical Case Management System 8 inmates (“CCCMS”)] inmates, meaning they suffered from any of a variety of psychiatric 9 illnesses. CCCMS is the lowest level of care in the State’s prison mental health delivery system, 10 and is designed to provide a level of care equivalent to that received by non-incarcerated patients 11 through outpatient psychiatric treatment.”). According to written “Post Orders” applicable to the 12 CCCMS unit, floor officers there had the primary function “to act as a safeguard against suicide 13 attempts as well as fires set by inmates within the unit.” Id. at 1070. Security checks were 14 supposed to be performed by floor officers “upon assuming and prior to leaving the post and on 15 an irregular basis throughout the shift,” at least “once an hour during daytime watches.” Id. 16 However, on the day of St. Jovite’s suicide, supervisory officers called a staff meeting which 17 resulted in floor officers being absent from these duties for as long as three and a half hours, a 18 fact about which the inmates became aware. Id. at 1071. During their absence, St. Jovite hanged 19 himself. Id. His estate and successors in interest sued the supervisory defendants. Id. at 1067. 20 The Ninth Circuit concluded that the plaintiffs established a triable issue of fact as to 21 whether the withdrawal of all floor staff for up to three and a half hours created an objectively 22 substantial risk of harm to the unsupervised inmates that unit. Id. at 1076. Though the Ninth 23 Circuit acknowledged that preventing suicide is an important role for floor officers in most 24 prisons, the evidence demonstrated that the danger posed by withdrawing floor officers from their 25 duties is particularly acute in units where the inmates are mentally ill. Id. at 1076–77. In other 26 words, “[a] jury could infer that unsupervised mentally ill inmates housed together are more 27 likely to harm themselves or others than are inmates in the regular prison population.” (Id. at 1 left unsupervised for more than 30 minutes because they “can have a need for staff response in a 2 moment’s notice”).) The record in Lemire supported a finding that “the mentally ill inmates there 3 might suffer serious harm as a result [of] being left unsupervised for an extended period of time.” 4 Id. 5 As to the subjective prong of the deliberate indifference standard, the Ninth Circuit 6 framed the inquiry not as whether the Supervisory Defendants knew that the removal decision 7 posed a serious risk of harm to St. Jovite specifically, but rather whether the decision to remove 8 the floor staff from the unit posed a serious risk of substantial harm to any prisoner therein. Id. at 9 1077 (“This subjective inquiry involves two parts. First, Plaintiffs must demonstrate that the risk 10 was obvious or provide other circumstantial or direct evidence that the prison officials were 11 aware of the substantial risk to the [ ] inmates’ safety. Second, they must show that there was no 12 reasonable justification for exposing the inmates to the risk. Both of these inquiries are fact- 13 intensive and typically should not be resolved at the summary judgment stage.”). As to two of the 14 supervisory defendants, the Ninth Circuit concluded there was sufficient evidence from which a 15 jury could conclude they “were both aware of the risks posed by withdrawing all floor officers 16 from [the special unit] for over three hours.” Id. at 1078. Among other things, these supervisors 17 had knowledge sufficient to alert them to the “acute problem of inmate suicides in CDCR 18 prisons” and there was circumstantial evidence from which a reasonable jury could conclude that 19 most inmates in the special unit used psychotropic medications and that frequent formal searches 20 and security checks were necessary to protect the safety and security of these inmates. Id. at 21 1078–79. 22 Rocha v. Kernan, 2019 WL 2949031 (C.D. Cal. Mar. 13, 2019), applied Lemire to an 23 individual correctional officer’s conduct in circumstances like the present case, albeit at the 24 pleading stage. The decedent in Rocha was housed in “the ‘Support Care Unit,’ an EOP-level 25 housing unit.” 2019 WL 2949031, at *2. The complaint alleged that a correctional officer 26 responsible for conducting safety checks on an inmate who committed suicide on his watch (1) 27 failed to perform a required safety check, (2) despite being aware that inmates housed in that unit 1 that officers could intervene should a prisoner have a medical crisis. Id. at *12. Considering 2 Lemire, Rocha found these allegations sufficient, even though the complaint did not allege that 3 the officer knew that the decedent was specifically at substantial risk of suicide. Id. at *13. 4 (“Reading the allegations in the light most favorable to [p]laintiffs, it is reasonable to conclude 5 that an officer that failed to check on a specialized population of inmates at the required intervals 6 would know that he was exposing the inmates to a substantial risk.”); compare Schmitz v. A. 7 Asman, No. 2:20-CV-00195-JAM-CKD (PS), 2021 WL 3362811, at *10 (E.D. Cal. Aug. 3, 2021) 8 (declining to apply Lemire and Rocha to a case where the plaintiff resided in general population, 9 not in a special unit for inmates with mental health issues), report and recommendation adopted, 10 2021 WL 4356035 (E.D. Cal. Sept. 24, 2021). 11 The Court assumes for purposes of this motion that Hodges did not conduct the 2:00pm 12 safety check of Collier, notwithstanding Hodges’ contrary assertion in his supplemental report. It 13 is undisputed that at the time of his death, Collier was assigned to the EOP program, a mental 14 health program within KVSP which, according to CDCR, “requires a higher level of care [ ] and 15 includes structured therapeutic activities.” (Doc. 59-4 at 48 (KVSP Operational Procedure 16 #1050).) The EOP program is for patients who are chronically suicidal or chronically mentally ill. 17 (Doc. 59-4 at 72 (Deposition of Morgan Elias at p. 40).) Moreover, as was the case in Lemire, the 18 record suggests that all corrections officers assigned to the EOP unit understood that the inmates 19 housed there required special attention to their mental health needs, which included periodic 20 security checks. “Custody officers working in EOP must have more patience, more understanding 21 of policies, more understanding of how to talk to inmates, how to deescalate situations, and 22 knowing the difference between mental and/or psychological issues.” (Doc. 59-4 at 33 23 (Deposition of Christian Amabisca at p. 14).) Under the logic of Lemire, Hodges need not have 24 specific knowledge of Collier’s mental health status, only that he fell within the general category 25 of inmates that required EOP-level safety checks. Lemire suggests that the subjective prong of a 26 deliberate indifference claim is a fact-intensive inquiry that is usually best left to the finder of 27 fact. Given that instruction, on this record it would not be impossible for a finder of fact to 1 disregarded that risk by not performing the 2:00pm security check. For purposes of the remainder 2 of the analysis of this claim, the Court will assume without deciding that Hodges’ conduct was the 3 moving force behind Collier’s suicide. See generally Arnold v IBM Corp., 637 F.2d 1350, 1355 4 (9th Cir. 1981) (requiring but-for and proximate cause for § 1983 suits). 5 The same cannot be said for Defendant Martinez. Generally, “whether an official’s actions 6 and responses to a known risk are reasonable will depend on the scope of their responsibilities 7 and duties.” Sekerke v. Arkwright, No. 3:20-CV-1045-JO-AHG, 2023 WL 6390427, at *6 (S.D. 8 Cal. Sept. 28, 2023) (official not within the housing conditions chain of command did not have 9 responsibility to fix conditions in Ad-Seg). It is undisputed that Hodges was assigned to the 10 second tier of the EOP unit on the day in question, while Martinez was assigned to the first tier. 11 (Doc. 59-4 at 84 (Deposition of Oscar Martinez-Bullock at p. 34).)3 Therefore, it was Hodges’ 12 responsibility to perform the 2:00 pm safety check on Collier. The present record does not 13 support holding Martinez responsible for any failure by Hodges’ to perform that check. To find 14 otherwise would impose upon Martinez the responsibility for double checking Hodges’ work, 15 which would make no practical sense. The motion for summary judgment is GRANTED as to 16 Martinez. 17 3. Clearly Established Law 18 As to Hodges, the inquiry continues, because the next question is whether his conduct 19 violated “clearly established” law. Even if a reasonable jury could find that Hodges violated 20 Collier’s Eighth Amendment rights, Hodges would be entitled to judgment in his favor on 21 qualified immunity grounds if the right was not clearly established at the time of the encounter. 22 See C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1257 (9th Cir. 2016). “A 23 Government official’s conduct violates clearly established law when, at the time of the challenged 24

25 3 Plaintiffs cite page 41 of Officer Martinez’s deposition for the proposition that “both officers owed obligations to check on all inmates. (See Doc. 59-2 at 2.) In that portion of his deposition, Officer Martinez discusses a “Post 26 Order” in effect on the date in question, which generally describes the “area of responsibility” for each officer as “all areas of the housing unit.” (See id.; see also Doc. 59-4 at 40.) Plaintiff also notes that Officer Martinez explained that 27 officers could “walk the tiers” (plural) eight to ten times per day. (Doc. 59-4 at 85.) But the generic assignment of responsibility in the Post Order and Martinez’s use of the plural word “tiers” in response to an unfocused question, do 1 conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would 2 [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 3 741 (2011) (alterations in original); see also Dist. of Columbia v. Wesby, 583 U.S. 48, 63 (2018) 4 (“We do not require a case directly on point, but existing precedent must have placed the statutory 5 or constitutional question beyond debate.”). It is not appropriate for courts to define clearly 6 established law at a high level of generality; instead, the inquiry “must be undertaken in light of 7 the specific context of the case, not as a broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 8 12 (2015) (citation omitted); see also Carley v. Aranas, 103 F.4th 653, 660–61 (9th Cir. 2024) 9 (“The Supreme Court has repeatedly told courts—and the Ninth Circuit in particular—not to 10 define clearly established law at a high level of generality.”) (internal quotation omitted).4 11 As one district court recently put it, “[e]ven in those cases where an obligation to prevent 12 an inmate’s suicide has been recognized in the Ninth Circuit, there was an imminent, rather than 13 sporadic suicide risk that was ignored by defendant officers who were aware of that looming 14 risk.” Vivanco v. Cal. Dep’t of Corr. & Rehab., No. 1:17-CV-00434-BAM, 2019 WL 2764397, at 15 *8–9 (E.D. Cal. July 2, 2019), aff’d, 817 F. App’x 492 (9th Cir. 2020) (discussing Clouthier and 16 Conn); see also NeSmith v. Olsen, 808 F. App’x 442, 445 (9th Cir. 2020) (denying qualified 17 immunity where defendants observed a rope hanging from decedent’s light on the night before his 18 suicide; “[u]nder those circumstances, the rope presented a clear warning that NeSmith presented 19 an imminent suicide risk [and] [e]very reasonable official would have understood that failing to 20 recognize that risk violated the decedent’s rights.”)(cleaned up); see also Lopez v. Nevada ex rel. 21 Nevada Dep’t of Corr., No. 2:21-CV-01161-ART-NJK, 2023 WL 6379446, at *8–9 (D. Nev. 22 Sept. 29, 2023) (finding no qualified immunity because case was “governed by Conn” where 23 other officers “clearly conveyed” the high risk of suicide to the defendant officer). In contrast, the 24 present record does not suggest that Defendant Hodges had information suggesting that there was 25 4 For this reason, the Court is unpersuaded by Plaintiff’s citation to Smithee v. California Corr. Inst., No. 1:19-CV- 26 00004-JLT-CDB, 2023 WL 5334761, at *10 (E.D. Cal. Aug. 18, 2023), report and recommendation adopted, 2023 WL 5836528 (E.D. Cal. Sept. 8, 2023). (See Doc. 59 at 28.) Though Smithee did indicate that “the Eighth and 27 Fourteenth Amendment[s] require custodian[s] of inmates to provide adequate mental health care,” the ruling indicated that “[f]urther discovery of Defendants’ subjective knowledge of certain facts will determine whether the 1 an imminent risk that Collier would attempt suicide. 2 Though Lemire can be read as articulating a right of inmates housed in special units for 3 the mentally ill to not be left entirely unmonitored for extended periods of time, the qualified 4 immunity inquiry still requires the Court to define that right at an appropriate level of specificity. 5 In Lemire, supervisors with overall responsibility for the entire mental health unit withdrew all 6 staff from the task of monitoring inmates in that unit for more than three hours and the inmates 7 became aware of that lack of supervision. Though Rocha extended the logic of Lemire to an 8 individual corrections officer under circumstances more like the present case, Rocha is a stand- 9 alone district court case decided after Collier’s death. See Evans v. Skolnik, 997 F.3d 1060, 1066– 10 67 (9th Cir. 2021) (“The Supreme Court has not clarified when state and district court decisions 11 could place a ‘statutory or constitutional question beyond debate.’ Rather, as the Supreme Court 12 has pointed out, ‘district court decisions—unlike those from the courts of appeals—do not 13 necessarily settle constitutional standards,’ because ‘[a] decision of a federal district court judge 14 is not binding precedent in either a different judicial district, the same judicial district, or even 15 upon the same judge in a different case.’”). 16 The Court has serious concerns about the practical consequences of defining the right in a 17 way that would extend the holding of Lemire in the manner suggested by Plaintiff. To define the 18 right, for example, as “the right for inmates in a mental health unit to be checked at regular 19 intervals” would open the door to a finding of deliberate indifference any time an officer failed to 20 timely implement a check in such a unit, so long as the officer is generally aware that inmates 21 therein could harm themselves or others and there is a causal connection between the failure to 22 check and that harm. Though this is not illogical, such an articulation would not aligned with 23 Ninth Circuit caselaw focusing on the distinction between acute/imminent risk on the one hand, 24 versus sporadic/chronic risk on the other. Given the very existence of these seemingly divergent 25 threads of authority, the Court cannot find that there is “clearly established” law prohibiting 26 Hodges’ conduct. See Doe v. Pasadena Unif. Sch. Dist., No. CV 18-905 PA (FFMX), 2018 WL 27 5880187, at *6 (C.D. Cal. Sept. 26, 2018), aff’d, 810 F. App’x 500 (9th Cir. 2020) (“The Ninth 1 establishes that the law governing Doe’s claim arising out of [defendant’s] alleged threat to have 2 immigration authorities come to [Doe’s child’s elementary school] is not clearly established.”). 3 Even if the law had clearly established that individuals in state custody have the right to 4 monitoring and protection from their own self-harming tendencies due to mental health and 5 medical problems, evaluating qualified immunity without some additional detail is inappropriate. 6 For example, in Sandoval v. County of San Diego, 985 F.3d 657, 678–79 (9th Cir. 2021), a 7 detainee died from a methamphetamine overdose after jail staff left him unmonitored for eight 8 hours, despite signs that he was under the influence of drugs. Id. at 662. The Ninth Circuit denied 9 qualified immunity for the jail staff, finding that a reasonable official would have understood that 10 “failing to check on [the inmate] for hours . . . presented such a substantial risk of harm to [the 11 inmate] that the failure to act was unconstitutional.” Id. at 678 (internal quotations omitted). 12 Likewise, in Lemire, the inmates were left unsupervised for more than three hours. 726 F.3d at 13 1076. Here, at most, Hodges is responsible for a 90-minute lapse in monitoring, representing the 14 time between when he started his shift at or about 2:00 pm, and 3:32, when he found Collier 15 unresponsive in his cell. For this additional reason, it might not have been apparent to a 16 reasonable officer with the knowledge Hodges possessed that failing to perform the first safety 17 check amounted to deliberate indifference. In other words, it was not “beyond debate” that 18 skipping that safety check amounted to a constitutional violation under these circumstances.5 19 Thus, Defendant Hodges is entitled to qualified immunity. 20 C. Fourteenth Amendment Claim 21 As the Findings and Recommendations explain, the Fourteenth Amendment claim in this 22 case is essentially derivative of the deliberate indifference claim because the Ninth Circuit 23 5 The Court acknowledges that other district courts have issued rulings that suggest a different outcome. In Est. of 24 Abdollahi v. Cnty. of Sacramento, 405 F. Supp. 2d 1194, 1218 (E.D. Cal. 2005), relied upon by Plaintiff, (see Doc. 59 at 8), the court found that the “the fundamental right to be protected from the known risks of suicide in jail and to 25 have serious medical needs attended to were clearly established.” But that decision issued in 2005, well before the qualified immunity caselaw began demanding greater specificity in the definition of the relevant right. 26 Because caselaw encourages courts to apply prisoner rights precedent to the rights of foster children, in Shane v. Cnty. of San Diego, 677 F. Supp. 3d 1127, 1137 (S.D. Cal. 2023), the court applied Lemire and other cases 27 to find a that foster children have a clearly establish right to “safe placement, supervision, protection, and adequate medical care.” Shane held that social workers were not entitled to qualified immunity when they knew the child had a 1 generally applies the deliberate indifference standard to determine whether conduct “shocks the 2 conscience” in violation of the Fourteenth Amendment. (Doc. 72 at 11–12 (explaining that, 3 alternatively, a plaintiff may demonstrate conscience shocking behavior by showing a state 4 official “acted with the purpose to harm”).) Because Defendants are entitled to summary 5 judgment on the Eighth Amendment deliberate indifference claim, they are likewise entitled to 6 summary judgment on the Fourteenth Amendment claim. 7 D. Bane Act Claim 8 Defendants also move for summary judgment on the Bane Act claims against them. “The 9 elements of a cause of action under the Bane Act are: (1) defendants interfered by threat, 10 intimidation, or coercion, or attempted to interfere by threat, intimidation, or coercion; (2) with 11 the exercise or enjoyment by any individual of rights secured by federal or state law.” Ordonez v. 12 Stanley, 495 F. Supp. 3d 855, 865–66 (C.D. Cal. 2020) (citing King v. Cal., 242 Cal. App. 4th 13 265, 294 (2015)); see Cal. Civ. Code § 52.1(b). In addition, the Bane Act requires a specific intent 14 to violate the plaintiff’s rights. See Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 15 2018); Cornell v. City & Cnty. of S.F., 17 Cal. App. 5th 766, 801–02 (2017). There is a two-part 16 test for finding specific intent: (1) “is the right at issue clearly delineated and plainly applicable 17 under the circumstances of the case,” and (2) “[d]id the defendant commit the act in question with 18 the particular purpose of depriving the citizen victim of his enjoyment of the interests protected 19 by that right?” Id. at 803 (citations omitted). “So long as those two requirements are met, specific 20 intent can be shown ‘even if the defendant did not in fact recognize the unlawfulness of his act’ 21 but instead acted in ‘reckless disregard’ of the constitutional right.” Sandoval, 912 F.3d at 520 22 (quoting Cornell, 17 Cal. App. 5th at 803). According to the Ninth Circuit, “the California Court 23 of Appeal has indicated that [a court] must look to whether there is anything ‘vague or novel 24 about [the application of the right] under the circumstances’” of the case presented. Id (quoting 25 Cornell, 17 Cal. App. 5th at 803). 26 The Court finds the Bane Act claim cannot proceed under this standard. For essentially the 27 same reasons qualified immunity applies, the present case represents a novel application of the 1 Defendants’ motion for summary judgment is GRANTED as to the Bane Act claim. 2 E. Wrongful Death Claim 3 Defendants also move for summary judgment on the state law wrongful death claim. 4 (Doc. 57 at 11.) Alternatively, given the Court’s finding that the Defense is entitled to summary 5 judgment on all federal claims, Defendants ask the Court to decline supplemental jurisdiction 6 over the state law claims. (Id. at 14–15.) Plaintiff opposed summary judgment on this claim and 7 did not address the supplemental jurisdiction issue. (Doc. 59 at 26–27.) 8 Under 28 U.S.C. § 1367(c)(3), this Court has discretion to decline to exercise 9 supplemental jurisdiction where, as here, all claims over which it has original jurisdiction have 10 been dismissed. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639–40 (2009). “To 11 decline jurisdiction under § 1367(c)(3), the district court must first identify the dismissal that 12 triggers the exercise of discretion and then explain how declining jurisdiction serves the 13 objectives of economy, convenience and fairness to the parties, and comity.” Trustees of Constr. 14 Indus. & Laborers Health & Welfare Trust v. Desert Valley Landscape & Maint., Inc., 333 F.3d 15 923, 925 (9th Cir. 2003); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 16 (1966) (“Needless decisions of state law should be avoided both as a matter of comity and to 17 promote justice between the parties, by procuring for them a surer-footed reading of applicable 18 law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a 19 jurisdictional sense, the state claims should be dismissed as well.”); Carnegie–Mellon Univ. v. 20 Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are 21 eliminated before trial, the balance of factors to be considered under the pendent jurisdiction 22 doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to 23 exercise jurisdiction over the remaining state-law claims.”). 24 Though the case was approaching trial prior to the issuance of the Findings and 25 Recommendations, it has not yet reached that stage of litigation. Moreover, the remaining state 26 law questions may become complex. The elements of a California wrongful death claim are: (1) a 27 wrongful act or neglect on the part of one or more persons that (2) causes (3) the death of person. 1 2013); Cal. Civ. Proc. Code § 377.60. “Although it is a statutorily-created action, a wrongful 2 death suit predicated on negligence must still contain the elements of actionable negligence.” 3 Deloney v. Cnty. of Fresno, No. 1:17-cv-01336-LJO-EPG, 2019 WL 1875588, at *9 (E.D. Cal. 4 Apr. 26, 2019). “A negligence claim requires proof that (1) defendant had a duty to use care, (2) 5 defendant breached that duty, and (3) the breach of duty was the proximate or legal cause of the 6 resulting injury.” Id. (citing Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 629 (2013)). 7 The Court’s conclusions above could support a finding that Hodges breached a duty he 8 owed to Collier to check on him at 2:00 pm. As mentioned, the evidence establishes that 9 corrections officers assigned to the EOP unit knew that the EOP program was for patients who 10 are chronically suicidal or chronically mentally ill and that corrections officers assigned to the 11 EOP unit understood that the inmates housed there required special attention to their mental 12 health needs, which included periodic security checks. In addition, arguably, Dr. Lee’s expert 13 report suggests that Hodges did not perform a security check on Collier at 2:00 pm or performed 14 that check with insufficient rigor. Therefore, there is a material dispute as to duty and breach 15 related to Hodges’ failure to check on Collier at 2:00 pm.6 16 However, the analysis as to causation is more complex. The Findings and 17 Recommendations succinctly summarize the relevant legal standards: 18 “A negligent act ‘is not the proximate cause of [a plaintiff’s] alleged injuries if another cause intervenes and supersedes [defendant’s] 19 liability for the subsequent events.’” Campos v. Cnty. of Kern, No. 1:14-cv-01099-DAD-JLT, 2017 WL 915294, at *14 (E.D. Cal. Mar. 20 7, 2017) (quoting Conn, 591 F.3d at 1101). “A cause is intervening and superseding if it is unforeseeable.” Id. (citation omitted). “As a 21 general rule, acts of suicide have been found to be unforeseeable events that preclude a finding of causation.” Id. However, courts 22 have recognized an exception to this general rule in cases where a

23 6 As to Defendant Martinez, the Defense argues that because “his working position did not call for him to go onto the upper tier at all,” he “owed no duty and correspondingly breached no duty to Collier.” (Doc. 57-1 at 11.) The Court 24 agrees. The only contrary evidence Plaintiff identifies is the “Post Order” that indicates that the “area of responsibility” for each officer includes “all areas of the housing unit.” (See Doc. 59-2 at 2.) But as discussed in 25 footnote 3 above, this generic assignment of responsibility does not create a material dispute of fact given the undisputed division of labor within the EOP unit. Defendant Martinez is therefore entitled to summary judgment on 26 the wrongful death claim. The undersigned also agrees with the Defense (Doc. 57 at 14) and the Findings and Recommendations (Doc. 27 72 at 15) that Plaintiffs have not presented any facts to suggest either a duty or breach regarding Defendant Hodges related to Collier’s possession of nail clippers. As mentioned, in the face of a unit policy permitting the possession of 1 government official’s actions or inaction were “the moving force” behind a sequence of events that ultimately lead to a foreseeable 2 harm being suffered, including suicide. Id. (citing cases). 3 In Campos, an inmate who harmed himself while in-custody was moved to a suicide-watch cell that was not monitored by a camera. 4 Id. at *1. The defendant correctional officers discovered the inmate in his cell with a cord noose fastened around his neck and tied to the 5 cell bars. The noose was fashioned from a section of the electrical cord of a fan located in the hallway outside of decedent’s cell. Id. 6 The court denied defendants’ motion for summary judgment on a wrongful death claim because the defendants were aware that an 7 electric fan was placed outside the suicide watch cell in question, providing circumstantial evidence of negligence. The court reasoned 8 that “the defendants’ leaving of an electric fan with a duct-taped cord near a suicide cell, at least arguably within reach of a suicidal 9 detainee, could be considered by a rational trier of fact to be the ‘moving force’ behind decedent's ultimate suicide.” Id. at *15. 10 In contrast, the court in Weishaar v. Cnty. of Napa granted summary 11 judgment to the defendant correctional officer on a successor in interest’s wrongful death cause of action for the in-custody death by 12 suicide of her husband. No. 14-cv-01352-LB, 2016 WL 7242122 (N.D. Cal. Dec. 15, 2016). The inmate’s suicide happened on the 13 defendant’s watch approximately 25 minutes after his last security check. Id. at *8. Although the defendant had no knowledge of reports 14 regarding the decedent’s suicide risk, he characterized the decedent as appearing “really down” in the hours leading up to the suicide, 15 received reports from the decedent that he was bi-polar, in need of medication and about to “lose it,” and cried. Id. at *4, *8. Based on 16 this record, and because the facility’s medical and housing staff were responsible for assessing and addressing the decedent’s needs (not 17 the correctional officer), the court found there were no triable issues of fact as to the defendant’s responsibility for the death by suicide 18 and granted summary judgment. 19 (Doc. 72 at 13–15.) 20 Defendants’ motion for summary judgment focused on the issues of breach and duty. 21 (Doc. 57-1 at 11 (arguing that “no reasonable jury could conclude that Defendants Hodges or 22 Martinez breached a duty of care owed to Collier”).) The Defense does not appear to have 23 challenged causation under California law in their opening brief on summary judgment (see Doc. 24 57 at 10–12) or reply (see generally Doc. 60). The magistrate judge evaluated causation anyway, 25 concluding that even if Hodges failed to check on Collier during the first 90 minutes of his shift, 26 “Plaintiff still [ ] failed to identify any triable issues of material fact as to whether Defendants’ 27 actions were the proximate or legal cause of Collier’s death.” (Id. at 17–18.) Given the above findings, the Plaintiffs could establish that the missed security check was 1 | acause in fact of Collier’s death because he there is evidence to suggest that he may have been in 2 | arevivable condition if he had been given medical care at that time. Viewing the evidence in a 3 | light most favorable to Plaintiff, Collier was in ATLS “Stage 3,” but not yet “Stage 4.” Dr. Lee’s 4 | expert report indicates blood loss of 50% (consistent with Stage 4) is “usually lethal,” though 5 || blood loss of more than 33% is considered “life threatening.” This implies (though it does not 6 | directly state) that Stage 3 is not necessarily fatal, and that medical intervention may have saved 7 | Collier’s life. Thus, the Court finds there is a genuine dispute of triable fact as to the Wrongful 8 | Death claim and declines to adopt the Findings and Recommendation in this regard. (Doc. 72 at 9 | 17-18). 10 I. CONCLUSION AND ORDER 11 Based upon the foregoing, the Court ORDERS: 12 1. The Court adopts in part and declines to adopt in part the findings and 13 recommendations issued on February 12, 2024 (Doc. 72). 14 2. Defendants’ motion for summary judgment (Doc. 57) is GRANTED as to the Eighth 15 Amendment, Fourteenth Amendment, and Bane Act claims, but DENIED as to the 16 Wrongful Death claim. 17 3. The Court refers the matter to the Magistrate Judge to hold a trial-setting conference. 18 19 IT IS SO ORDERED. 29 | Dated: _ August 23, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 96