Opinion
6:20-cv-01925-MK
04-12-2023
YELA FIDUCIARY SERVICES, LLC, personal representative for the Estate of Alyssa Marie Sund, Deceased; and EMERY SUND, an individual, Plaintiffs, v. BENTON COUNTY, an Oregon county; LANCE LOBERG, M.D., an individual; JON SOBOTKA, M.D., an individual; NICOLE KELLEY, an individual; SCOTT JACKSON, an individual; DIANA RABAGO, an individual; EVAN MOHR, an individual; MELISSA WERDELL, an individual; MATTHEW BLACKSHEAR, an individual; CALLIE DUGGAR, an individual; ETHAN GARRISON, an individual; JONATHAN HERRICK, an individual; DOREE JOHNSON, an individual; PAUL LANCASTER, an individual; NICHOLAS MILLER, an individual; TANNER SPARKS, an individual; THOMAS WHITE, an individual; and JOHN DOES 1-9, Defendants
FINDINGS AND RECOMMENDATION FILED UNDER SEAL PURSUANT TO STIPULATED PROTECTIVE ORDERS
MUSTAFA T. KASUBHAI United States Magistrate Judge.
Following the December 23, 2018 death of Alyssa Sund while in custody at the Benton County Jail, Plaintiffs (the personal representative for the Estate of Alyssa Sund and her husband) filed this civil rights lawsuit under 42 U.S.C. § 1983 and Oregon state law. Compl. ¶ 1, 34-40, ECF No. 1. Defendants include Benton County, Dr. Lance Loberg, Scott Jackson, Diana Rabago, Evan Mohr, Melissa Werdell, Matthew Blackshear, Callie Duggar, Ethan Garrison, Jonathan Herrick, Doree Johnson, Paul Lancaster, Nicholas Miller, Tanner Sparks, Thomas White, and nine John Does (collectively, “the County Defendants”); and Nicole Kelley. Id. at 3-5. Before the Court is (1) the County Defendants' Motion for Summary Judgment and (2) Defendant Nicole Kelley's Motion for Summary Judgment. For the reasons set forth below, the County Defendants' Motion for Summary Judgment (ECF No. 112) should be GRANTED in part and DENIED in part, and Defendant Nicole Kelley's Motion for Summary Judgment (ECF No. 114) should be DENIED.
Yela Fiduciary Services, LLC, is Sund's personal representative.
Plaintiffs had additionally named Dr. Jon Sobotka as a Defendant, but later dismissed him. See ECF No. 67.
BACKGROUND
This case arises out of the death of Alyssa Sund (“Ms. Sund”) while in custody at the Benton County Jail (“the Jail”). The facts relevant to Defendants' motions are summarized below.
I. Ms. Sund's Death
A. December 19, 2018
On December 19, 2018, Albany Police Department Officer Mike Wood responded to a report of a homeowner that people had moved into his home, which was for sale. Decl. of Kenneth S. Montoya (“Montoya Decl”) Ex. 1 at 1, ECF No. 113-1; Decl. of Harlan Mechling (“Mechling Decl.”) Ex. 1 at 3, ECF No. 131-1. After arriving at the home and speaking with the homeowner, his real estate agent, the buyer's real estate agent, and Ms. Sund, Officer Wood concluded that there was probable cause that Ms. Sund had committed Burglary I and Criminal Mischief II, and arrested her and her husband Emery Sund. Montoya Decl. Ex. 1. at 2, ECF No. 113-1.
The Court notes that the accompanying exhibits to the Mechling Declaration are comprised of a single PDF spanning 681 pages. Accordingly, the Court's references to specific page numbers correspond to the page number of the PDF at ECF No. 131-1, rather than to page numbers of individual exhibits or deposition transcripts.
During transport to Benton County Jail, Ms. Sund retrieved “three or four points of heroin” from Mr. Sund's shoe and “put it down her pants.” Montoya Decl. Ex. 2 (“Sund Dep.”) at 52:22-54:10, ECF No. 113-2. Ms. Sund arrived at Benton County Jail around 5:27 p.m. and was taken to holding cell number 2, and later to the booking room for processing at around 6:21 p.m. Montoya Decl. Ex. 3 (“Libra Dep.”) at 31:16-33:25, ECF No. 113-3. Neither a pat-down nor an unclothed search of Ms. Sund revealed any contraband. Id.
During booking, Sgt. Evan Moore conducted an inmate screening for Ms. Sund. Mechling Decl. Ex. 3 at 6-9, ECF No. 131-1. Ms. Sund reported “seizures from Alprazolam missed doses,” heart problems, asthma, thyroid cancer, arthritis, dental problems, PTSD, stomach issues, fibromyalgia, migraines, liver issues, and lupus. Id. She reported being on a number of medications, including Metoclopramide, Celebrex, Baclofen, Gabapentin, Zanaflex, IBU, Relpax, Alprazolam, Albuterol, and Ropinerol, and provided the name of her medical provider and her pharmacy. Id.
At around 7:13 p.m., Ms. Sund was housed in Cell 14. Mechling Decl. Ex. 5 at 14, ECF No. 131-1. An “Initial Arrestee Screening” noted that immediate medical attention was not necessary but that she “need[ed] to be seen by medical for meds.” Id. Ex. 10 at 265-67. ECF No. 131-1.
B. December 20, 2018
Around 2:50 a.m. on December 20, 2018-Ms. Sund's first night at the Jail-Deputy Thomas White heard a knocking from Ms. Sund's cell and Ms. Sund reported that she was having an asthma attack. Mechling Decl. Ex. 11 (“White Dep.”) at 278:2-15, ECF No. 131-1. He radioed Sgt. Werdell to come to Ms. Sund's cell. Id. Upon arrival, Sgt. Werdell observed that Ms. Sund was having “a difficult time breathing” and that she “seemed to be panicking a little.” Id. Ex. 12 (“Werdell Dep.”) at 282:16-24. Sgt. Werdell did not believe that Ms. Sund was having an asthma attack, but asked Ms. Sund if she typically used an albuterol inhaler, and obtained and gave Ms. Sund a stock inhaler from the Jail's “med room” where most medications are held. Id. at 282:25-284:7. Sgt. Werdell testified that she was authorized to provide an albuterol inhaler when an inmate reports trouble breathing, and that depending on why an inmate has trouble breathing, she may be authorized or directed to take additional steps. Id. at 286:1-13. Sgt. Werdell did not ascertain why Ms. Sund had difficulty breathing, does not recall reviewing her medical screening prior to providing the inhaler, and did not contact Nurse Kelley or Doctor Loberg. Id. at 286:10-14; 287:14-52:5.
Ms. Sund took two puffs from the inhaler and “it seemed like her breathing became better.” Id. Ex. 8 at 206. Sgt. Werdell then offered to allow Ms. Sund to come up to Holding Cell 1 for observation-where staff would be able to monitor her via cameras-in case she had difficulty breathing again. Id. Ms. Sund agreed and was taken to Holding Cell 1. Id. She slept the remainder of the night until she was served breakfast at around 6:30 a.m. Id. at 198. At that time, Ms. Sund complained that her back was sore, and Deputy White gave her Ibuprofen. Id.
Nurse Kelley began her shift on December 20, 2018 at around 6:52 a.m. Decl. of Nicole Kelley, R.N. at 4, ECF No. 115. Upon arrival, Sgt. Werdell briefed Nurse Kelley regarding Ms. Sund's episode the prior evening. Id. She then reviewed Ms. Sund's initial inmate screening form and medical screening form, then met with Ms. Sund in Holding Cell 1 at around 8:30 a.m. Id. Nurse Kelley determined that “[t]he only specific item from the medical screening that.. .may need immediate follow up was Alyssa Sund's asthma diagnosis.” Id. Nurse Kelley noted that “most of the medications Alyssa Sund listed were controlled substances” and informed Ms. Sund that the Jail does not dispense controlled substances unless there is a valid prescription and the medication can be brought in. Id. at 4-5. Ms. Sund told Nurse Kelley that there was nobody available to bring her medications because her husband had been detained along with her. Id. at 5. She also noted that she had asked her arresting officer to bring her medications with them at the time of her arrest, but that he had failed to do so. Id. Ms. Sund did not appear to Nurse Kelley to be in any distress, nor did she verbally inform Nurse Kelley of any drug or alcohol dependence issues. Id. Nurse Kelley did not take Ms. Sund's vital signs and did not schedule an appointment for Ms. Sund to see Dr. Loberg when he was to be at the Jail later that day. Mechling Decl. Ex. 14 (“Kelley Dep.”) at 320:10-22; 322:20-323:10, ECF No. 131-1.
Plaintiffs note that, in fact, only one of Ms. Sund's listed medications was a controlled substance. Pearson Decl. at 5, ECF No. 129.
Following meeting with Ms. Sund, Nurse Kelley spoke with Deputy Formiller regarding Ms. Sund's medications. Id. Ex. 8 at 200. She informed Deputy Miller that Ms. Sund's medications were in a backpack at the home where Ms. Sund was arrested, and that they could be dispensed if somebody brought in the medications. Id. She told him that the medications were “non-emergency” and that any medications Ms. Sund “needed to be on were set up by the jail and would be provided.” Id.
At around 1:00 p.m. on December 20, 2018, Sgt. Mohr came back on duty and instructed a deputy to move Ms. Sund back to Cell 14 because he had been informed that Nurse Kelley had seen and cleared Ms. Sund. Id. at 202. A half-hour later, Ms. Sund was taken to a video arraignment where she was denied release and subsequently returned to her cell. Id. Then, according to Sgt. Mohr:
Sund began yelling and loudly knocking on her door. I responded to find Sund sitting on the floor next to the door. Sund was crying and seemed to be breathing heavily. I asked her what her problem was. Sund stated that she had PTSD and was having a panic attack. She stated that she was sick and wanted her medications. I told Sund that I would call the Albany Police Officer who arrested het to see if he could get her medications to the jail. Sund then stopped crying and appeared fine.Id. Nurse Kelley purportedly heard some of this conversation. Id. at 203; Mechling Decl. Audio Ex. 13B, ECF No. 131-1. Sgt. Mohr spoke with Nurse Kelley following this episode and was informed that Ms. Sund's medications were “not a necessity” and that “if the medication were brought into the jail she would set them up for Sund to take.” Id. Ex. 8 at 203. Sgt. Mohr did not tell Nurse Kelley that Ms. Sund described having a “panic attack” or that she said she was sick and wanted her medications. Kelley Dep. at 325:15-326:1, ECF No. 131-1.
At approximately 2:30 p.m., Sgt. Mohr brought Ms. Sund to the booking room to use the phone. Mechling Decl. Ex 8 at 200, ECF No. 131-1. Deputy Formiller overheard Ms. Sund speak to her mother who was unable to bring in any medications and heard her attempt “several” more numbers. Id. When these attempts were unsuccessful, Sgt. Mohr called Ms. Sund's arresting officer who went to the location of Ms. Sund's arrest but was unable to locate her medication. Id. at 203. Sgt. Mohr did not inform Nurse Kelley that the medications were unable to be recovered. Kelley Dep. at 329:7-18, ECF No. 131-1. Nurse Kelley stated that Sgt. Mohr should have contacted her so that they could “proceed accordingly,” but there is no indication in the record that Nurse Kelley took any steps herself to ensure that Ms. Sund's medications had been obtained. Id. She ended her shift that day, not to return until December 27, and without leaving instructions as to what to do if Ms. Sund's medications could not be brought in. Id. at 328:2-15. Nurse Kelley remained on call following the end of this shift. Mechling Decl. Audio Ex. 13B, ECF No. 131-1.
At around 2:50 p.m. on December 20, 2018, Dr. Loberg arrived at the Jail. Mechling Decl. Ex. 19 (“Loberg Dep.”) at 380:1-5, ECF No. 131-1. Dr. Loberg reviewed Ms. Sund's medical file as part of his retroactive approval of the albuterol inhaler to “see if there's any other things in there” but “didn't see anything.” Id. at 382:19-25. Dr. Loberg never interacted with Ms. Sund and left the Jail around 3:55 p.m. Id. at 379:12-15; 380:1-5.
After her reported panic attack on the afternoon of December 20, 2018, Ms. Sund was crying in her cell during cell checks and informed Deputy Blackshear that she wanted her medications. Mechling Decl. Audio Ex. 13C, ECF No. 131-1.
C. December 21, 2018.
Around 2:00 a.m. on December 21, 2018, Deputy Sparks spoke with Ms. Sund about her request for Pepto-Bismol and a muscle relaxer. Mechling Decl. Ex. 8 at 196, ECF No. 131-1. Deputy Tanner spoke with Sgt. Werdell who informed him that the Jail would not dispense Ms. Sund's medications unless they were brought in, and Deputy Sparks gave Ms. Sund Pepto-Bismol. Id. Ms. Sund complained that her bedding was uncomfortable and she was unable to sleep. Id.
Around 7:30 a.m., Ms. Sund asked Deputy Miller if she could use the phone. Id. at 194. Deputy Miller understood from other deputies that “she had been asking everyone for a phone call.” Id. Because she had already made several calls the day before, Deputy Miller notified Ms. Sund that she would not be allowed a phone call. Id. Ms. Sund yelled from her cell at approximately 8:20 a.m. asking again for a phone call, which Deputy Miller again disallowed. Id.
At around 10:05 a.m., Ms. Sund yelled “help” and Deputy Miller responded. Id. Ms. Sund asked Deputy Miller for a phone call and a hot pack for her back. Id. Deputy Miller told her that she could have a hot pack if she could remain silent. Id.
At 10:30 a.m., Mr. Sund attempted to speak to his wife Ms. Sund as he walked by her cell but was not allowed due to a no-contact order. Id. Audio Ex. 13E.
Around 11:00 a.m., Deputy Herrick spoke with Ms. Sund who again requested to use the telephone. Id. Ex. 8 at 186. Deputy Herrick told Ms. Sund that she would be allowed to do so when she was to be taken to the dayroom at 2:00 p.m. Id. When she was ultimately taken to the day room, she spoke with another inmate, Alexis Carrillo, and told her that “she did not feel good and may be detoxing.” Id. Audio Ex. 13F.
Ms. Carrillo also told investigators that she heard Ms. Sund throwing up the entire time they were next to each other. Mechling Decl. Audio Ex. 13F, ECF No. 131-1. Ms. Carrillo came to the Jail on December 19, 2018, and Ms. Sund returned to her cell next to Ms. Carrillo on the morning of December 20, 2018. Id.; Id. Ex. 5 at 14.
Around 9:48 p.m., Ms. Sund complained to Deputy Dugger that she was experiencing back and stomach pain. Id. Ex. 8 at 183. Deputy Dugger gave Ms. Sund Ibuprofen, then contacted Nurse Kelley to set up a daily ibuprofen dose for Ms. Sund. Id. Deputy Dugger also brought Ms. Sund a heat pack, which she replaced with a new one just over an hour later at around 10:00 p.m. Id.
That night, Mr. Sund began hearing his wife Ms. Sund “dry-heaving and vomiting loudly” which “continued throughout the night and into the next morning.” Decl. of Emery Sund (“Sund Decl.”) at ¶ 7, ECF No. 125. He explained that “she was vomiting several times per hour and it sounded painful.” Id. Deputy Garrison noted that Ms. Sund was “being loud periodically throughout the night” and that it “sounded like she was forcing herself to puke.” Mechling Decl. Ex. 8 at 185, ECF No. 131-1.
D. December 22, 2018
Ms. Sund continued to vomit “throughout the entire day of December 22, 2018. Sund Decl. at ¶ 8, ECF No. 125.
At 1:55 a.m., Sgt. Werdell gave Ms. Sund Pepto Bismol because “she said her stomach was hurting and she had been throwing up.” Mechling Decl. Ex. 8 at 206, ECF No. 131-1. Sgt. Werdell heard Ms. Sund “throwing up throughout the night on the hall speaker.” Id. In the early morning hours, Ms. Sund was provided a Gatorade, which are typically only provided to inmates who are detoxing. Id., Id. Audio Ex. 13E. Ms. Sund was given new bedding and pants to replace ones soiled by vomit, and was given a “barf bag.” Id. Ex. 8 at 197, 203. Deputy Garrison spoke with Ms. Sund around 4:45 a.m. “about keeping the noise level down.” Id. at 185.
At 6:22 a.m., Ms. Sund denied her prescribed ibuprofen, noting that “it will tear up my stomach,” requesting instead four Pepto-Bismol and a heat pack. Id. at 197.
Around 7:22 a.m., Deputy Herrick observed vomit on the floor of Ms. Sund's cell, and “found it strange that she was throwing up on the floor instead of getting up to vomit in the toilet which was a few feet away from her bunk.” Id. at 186. Ms. Sund took a shower and returned to her cell around 7:34 a.m. Id. at 195. Deputy Miller could hear her “vomiting in her cell throughout the morning after that.” Id.
Ms. Sund began yelling from her cell around 8:26 a.m. Id. When Deputy Miller responded, she told him that she had been vomiting and “couldn't keep anything down.” Id. She asked for Milk of Magnesia which Deputy Miller did not provide because she admitted that it “probably” would not help since she could not keep anything down. Id. After he left her cell, he could hear her continuing to vomit. Id.
At 9:30 a.m., Ms. Sund was brought up to Holding Cell 1 “due to her puking in her cell and because her constant yelling was bothering other inmates in the hall.” Id. at 186. She continued to yell from Holding Cell 1, banging her Gatorade bottle against the toilet and yelling “to let her go and that she needed to use the phone.” Id. Less than an hour later, Ms. Sund was moved to Holding Cell 2 using an escorted hold on her arms. Id. at 186-87. Holding Cell 2 has padded walls and no toilet. Id. at 187, 203. She then yelled about needing to use the toilet and ultimately defecated in the back of the cell at around 10:30 a.m. Id. at 187, 195. None of the Deputies observed Ms. Sund vomit during the time she was in Holding Cells 1 or 2.
At 3:32 p.m., Deputy Johnson spoke with Ms. Sund and informed her that if she stopped yelling she would bring a cleaning cart to clean Holding Cell 2. Id. at 190. Ms. Sund began cleaning her cell at 3:58 p.m. and asked for a cup of water at 4:02 p.m. Ms. Sund was given dinner at 5:21 p.m., then returned to Cell 14 at 5:36 p.m. and cleaned up the vomit on the floor there. Id. Ms. Sund requested Pepto-Bismol at 7:23 p.m. Id. at 191.
E. December 23, 2018
Deputy Herrick offered Ms. Sund a shower at 7:10 a.m. and in response “could hear her make a noise like a grunt, which sounded like a decline.” Id. at 188.
Deputies Herrick and Lancaster performed cell checks throughout the morning. During the 8:00 a.m. cell check, neither deputy looked into Ms. Sund's cell. Id. Ex. 13J; Video Ex. 23. Deputies Herrick and Lancaster performed visual observations of Ms. Sund's cell at 9:00 a.m., 9:31 a.m., and 10:33 a.m. During the 10:33 a.m. check, Ms. Sund appeared to be sleeping, “on her side and completely covered by her blanket.” Id. Ex. 8 at 188. She made no sounds or movements. Id. At 11:00, Sgt. Hunnemiller, Deputy Herrick, and Deputy Lancaster came to Ms. Sund's cell to serve lunch, but simply placed it on her sink since she appeared to be sleeping. Id. During none of these checks did Deputies Herrick or Lancaster pause long enough to check for signs of life. Id. Video Exs. 23, 25, 26, 27, 28.
At 12:02 a.m., Deputy Herrick went to Ms. Sund's cell to collect garbage and lock down the inmates. Id. Ex. 8 at 188. Upon observing through the door that her lunch had not been touched, he checked Ms. Sund for signs of life. Id. Not seeing any, he entered her cell, and uncovered her to discover that she was deceased. Id.
II. Benton County Jail Policies and Procedures
A. Staffing
The Jail has one nurse on staff, Nurse Kelley, who is on site 30 hours per week. Kelley Dep. at 309:2-5, ECF 131-1. Dr. Loberg is on site approximately 1-2 hours once per week to sign charts and see any inmate referred to him by Nurse Kelley. Id. at 304:9-15; Loberg Dep. at 373:12-20, ECF No. 131-1. When Nurse Kelley is out on vacation, Dr. Loberg does not find a replacement nurse and is unaware whether anyone else does. Id. at 374:25-375:22. The current practice is for Nurse Kelley not to have coverage, but instead be available by cell phone as needed. Formiller Dep. at 358:19-22, ECF No. 131-1.
B. Training
When deputies are hired, they go through a two-hour training with Nurse Kelley regarding Jail medical procedures. Kelley Dep. at 307:1-10, ECF No. 131-1. The training covers medical emergencies, how to administer medications, intake, HIPAA, where things are in the medical room, who to call in the event of an emergency, and the location of first aid kits and AEDs. Id. at 307:10-18.
Deputies are trained to recognize symptoms of withdrawal, including nausea, vomiting and aching muscles. Mechling Decl. Ex. 32 at 528, ECF No. 131-1. For inmates experiencing withdrawal, the deputies' training instructs that treatment includes taking vital signs three times per day during the acute stage, “liquid to regular diet as tolerated” and Pepto-Bismol every four hours as needed. Id. They are trained that severe cases can result in life-threatening dehydration. Id. Deputies are also trained on how to respond to “extreme agitation or anxiety.” Id. at 558. That training directs deputies to “[r]ule out.. .drug withdrawal” and to follow drug withdrawal protocols if indicated. Id.
Nurse Kelley offers “periodic refreshers” “as needed.” Kelley Dep. at 307:19-308:13, ECF No. 131-1. The policy for refreshers is “pretty informal.” Id. Several of the deputies could not recall receiving training on the above topics or when they should contact medical professionals. See Mechling Decl. at Ex. 17 (“Formiller Dep.”) at 357:17-18 (“I don't think I've ever received any specific medical training”); Ex. 34 (“Sparks Dep.”) at 390:1-18 (testifying he had not received any training on recognizing a medical condition or treating someone who is dehydrated); Ex. 21 (“Miller Dep.”) at 399:6-400:12 (testifying that he had not received training on whether and when vomiting is a serious medical condition requiring treatment); Ex. 36 (“Dugger Dep.”) at 576:5-25 (testifying that she did not receive training as to vomiting, breathing problems, or when to contact Nurse Kelley), ECF No. 131-1.
Dr. Loberg never played any role in training Jail staff. Kelley Dep. at 310:20-83:3, ECF No. 131-1. Nurse Kelley was unsure if Dr. Loberg had even reviewed the training materials. Id. at 311:4-8. Nobody else with a medical background trains the deputies on how to do the initial medical screening. Id. at 312:3-7.
C. Controlled substances policy
When an inmate comes to the Jail reporting that they take medications, Jail staff try to have the inmate bring in those medications themselves (e.g. by having a family member or friend bring them in). Id. at 313:1-8. If that is not possible, then the medication is ordered from the pharmacy. Id.
“As a general rule,” per Dr. Loberg's policy, the Jail does not provide controlled substances. Id. at 314:2-5. However, the Jail does stock one controlled substance, lorazepam, for alcohol withdrawal. Id. at 314:12-15. Additionally, if an inmate brings a controlled substance in themselves, then they will be allowed to continue on it. Mechling Decl. Ex. 39 at 661. ECF No. 131-1.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
In their motions for summary judgment, Defendants argue that (1) Ms. Sund did not receive constitutionally inadequate medical care, (2) they are entitled to qualified immunity; (3) there can be no municipal liability against Benton County under the present facts, (4) they were not negligent under Oregon law, and (5) emotional distress damages are not recoverable in a wrongful death action. The Court addresses each argument in turn.
I. Section 1983 Claim
To state a civil rights claim under § 1983, a plaintiff must allege that (1) a person acting under color of law (2) deprived the plaintiff of a federal constitutional right. 42 U.S.C. § 1983; Stein v. Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011). Liability under § 1983 arises upon a showing of personal participation by each defendant, and a supervisor is not liable for the constitutional violations of employees unless the supervisor “participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiff must show that each named defendant, through their own individual actions, violated Plaintiff's constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
To establish a claim for constitutionally inadequate medical care, a pretrial detainee must show:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries."Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).
The third element is an objective standard under which “[a] defendant can be liable even if [they] did not actually draw the inference that the plaintiff was at a substantial risk of suffering serious harm, so long as a reasonable official in [their] circumstances would have drawn that inference.” Russell v. Lumitap, 31 F.4th 729, 739 (9th Cir. 2022).
A. “Substantial Risk of Serious Harm”
For an inadequate medical care claim under § 1983, there is a substantial risk of serious harm where there is “a serious medical need, such that a failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Russell v. Lumitap, 31 F.4th at 739 (internal quotations and citation omitted). This is an objective standard which turns on whether the patient's condition is one which “a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.” Id. The Ninth Circuit has not decided whether the “serious medical need” depends on the symptoms the patient exhibits or on whether the ultimate cause of death is a “serious medical need.” Id. at 739-40 (declining to address the appropriate scope of the inquiry because even under the narrower “symptom” scope of the inquiry, a reasonable doctor or patient would find such symptoms worthy of comment and treatment).
Here, under either scope of the inquiry, Plaintiffs have produced sufficient evidence from which a reasonable jury could conclude that Ms. Sund had a “serious medical need” and was therefore at substantial risk of serious harm.
If the appropriate scope of the inquiry is Ms. Sund's cause of death-as opposed to her symptoms and other circumstances-Plaintiffs have produced evidence in the form of expert opinion that “on a more probable than not basis, and to a reasonable degree of medical certainty, the abrupt cessation of her alprazolam and subsequent withdrawal led to severe clinical features specifically a fatal seizure.” Mechling Decl. Ex. 7 at 26, ECF No. 131-1. It is well established in case law that withdrawal constitutes a serious medical need for purposes of an inadequate medical care claim. Villarreal v. Cnty. of Monterey, 254 F.Supp.3d 1168, 1184 (N.D. Cal. 2017) (collecting cases holding that “[d]rug withdrawal constitutes a serious medical need requiring appropriate medical care...”). Thus, Ms. Sund's withdrawal was a serious medical need.
The parties dedicated much briefing to disputing the cause of Ms. Sund's death. However, in the context of Defendants' motion for summary judgment, this Court is required to resolve all reasonable doubt in favor of Plaintiffs as the non-moving party. See T.W. Elec., 809 F.2d at 630. Defendants' arguments in opposition to Plaintiffs' theory as to Ms. Sund's cause of death merely point to conflicting evidence. This is insufficient on summary judgment. Drawing inferences in favor of Plaintiffs, the Court presumes for purposes of this motion only that Ms. Sund died in the manner opined by Plaintiffs' forensic pathologist: a seizure caused by benzodiazepine withdrawal.
However, even confining the inquiry to Ms. Sund's symptoms and circumstances rather than her ultimate cause of death, the Court still concludes that Plaintiffs have presented sufficient evidence of a serious medical need. The County Defendants argue that Ms. Sund's vomiting cannot amount to a serious medical need as a matter of law because courts “have only found nausea and vomiting present a serious risk where it is chronic and over a long period of time.” Def.'s Reply at 9, ECF No. 167. Defendants' argument ignores the larger context of Ms. Sund's symptoms and circumstances. In the primary case cited by Defendants, the plaintiff had been prescribed a powerful pain medication that was making her sick, and requested a modified diet to combat her “extreme nausea and frequent vomiting.” Drouin v. Skallet, 2017 WL 2591281, *2 (N.D. Cal. June 15, 2017). The Court concluded that under those facts, the plaintiff had not alleged a serious medical need. Id. at *5.
However, the facts at issue in Drouin are different from those at issue here, and this Court does not read Defendants' cited case law as holding that there is a per se rule that vomiting can never amount to a serious medical need. Specifically, Drouin does not detail the frequency with which the plaintiff was vomiting, the severity of that vomiting, or whether there was any indication that the plaintiff was dehydrated. Here, by contrast, there is evidence that Ms. Sund was vomiting “several times per hour” throughout the evening of December 21, 2018 and through the next day. Sund Decl. ¶¶ 7-8, ECF No. 125. In addition, here, there were indications that Ms. Sund was dehydrated because she was unable to keep anything down, including the Gatorade she was given to treat her possible dehydration. Attempts to treat her symptoms with Pepto-Bismol were unsuccessful. Finally, unlike in Drouin, where the plaintiff offered an explanation for her symptoms, the cause of Ms. Sund's vomiting was unclear. Ms. Sund was on a number of medications which were suddenly discontinued, had several medical conditions which she identified during her screening, and had been experiencing breathing issues as well as back pain in addition to her vomiting.
In other words, there are a number of other factors which together could allow a jury to conclude that “a reasonable doctor or patient would find [Ms. Sund's condition] important and worthy of comment or treatment.” See Russell, 31 F.4th at 739. There is therefore sufficient evidence in the record from which a reasonable jury could conclude that Ms. Sund had a serious medical need such that she was at a substantial risk of serious harm.
B. Deliberate Indifference
Having established that there is sufficient evidence of a serious medical need, the next question is whether there is evidence that each of the Defendants demonstrated deliberate indifference to that need. To establish deliberate indifference, a “plaintiff must show that the defendant's actions were ‘objectively unreasonable,' which requires a showing of more than negligence but less than subjective intent-something akin to reckless disregard.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 669 (9th Cir. 2021) (internal citation and quotations omitted), cert. denied sub nom. San Diego Cnty. v. Sandoval, 211 L.Ed.2d 400, 142 S.Ct. 711 (2021). The Court addresses each Defendant-or group of Defendants where appropriate-to evaluate whether a reasonable jury could find that they were deliberately indifferent.
1. Nurse Kelley
Nurse Kelley reviewed Ms. Sund's medical screening form which identified a number of medications and medical conditions. Ms. Sund's screening form also specifically noted that Ms. Sund had previously experienced seizures from missed doses of alprazolam. Kelley Dep. at 316:12-317:17, ECF No. 131-1. She also knew that Ms. Sund had been prescribed Gabapentin, which is sometimes used as an anti-seizure medication and admitted that she did not know the reason Ms. Sund had been prescribed that medication. Id. Nurse Kelley knew that alprazolam can cause withdrawal leading to complications, and in fact acknowledged that her first thought when she heard about Ms. Sund's death was that she may have been withdrawing from alprazolam. Id. at 331:15-332:10. When investigators asked her about dispensing controlled substances to inmates, she acknowledged that “in a lot of cases” inmates “unfortunately must go “cold turkey” off of controlled substances based on Jail policy, but that when the medication can be brought in, it allows them to be tapered off. Mechling Decl. Audio Ex 13B, ECF No 131-1. In other words, she appeared to acknowledge the importance of “tapering” inmates from controlled substances.
Nurse Kelley knew that Ms. Sund had been taken to a holding cell for a “breathing” issue but did not take Ms. Sund's vitals, attempt to identify the nature of the breathing issue, or set up an appointment with Dr. Loberg so that he could do so. Id. at 320:23-323:10. Nurse Kelley overheard Sgt. Mohr speaking with Ms. Sund following Ms. Sund's call for help following her video arraignment on December 20. Mechling Decl. Ex. 13B, ECF No. 131-1. Nurse Kelley could not hear Ms. Sund but could hear Sgt. Mohr. Id. Sgt. Mohr told investigators that he had old Ms. Sund during that interaction that he would talk to the nurse and would bring her to the phone to try to get her medication. Id. Audio Ex. 13A.
Nurse Kelley denied hearing Ms. Sund tell Sgt. Mohr that she was sick and wanted her medications, Kelley Dep. at 325:19-22. However, based on the evidence that she overheard Sgt. Mohr, a jury could conclude that Nurse Kelley knew he had communicated with her about getting her medications.
Nurse Kelley appeared to acknowledge that steps needed to be taken to obtain Ms. Sund's medications, delegating the task to Sgt. Mohr. Kelley Dep. at 327:2-329:18, ECF No. 131-1. However, she did not follow up to ensure that he was able to obtain them or take alternative steps to obtain them before she left the Jail for the Christmas holiday. Id.
Despite the facts known to Nurse Kelley, she did not ensure Ms. Sund got her medications or schedule her an appointment with Dr. Loberg to confirm that going “cold turkey” from her alprazolam prescription would not cause Ms. Sund harm. She did not take Ms. Sund's vitals or follow up with deputies to ensure that Ms. Sund's medication was recovered. Plaintiff has provided expert evidence that, based on what Nurse Kelley knew, her actions and inactions amounted to a reckless disregard for Ms. Sund's health and safety. Pearson Decl. ¶¶ 7-10, ECF No. 129.
Taking the above evidence in the light most favorable to Plaintiffs, a reasonable jury could conclude that Nurse Kelley's actions were objectively unreasonable and that she therefore met the standard for deliberate indifference.
2. Dr. Loberg
A doctor disregards an excessive risk to an inmate's health or safety if the doctor is aware of facts that would alert [them] to a substantial risk of serious harm.” Burdette v. Butte Cnty., 121 Fed.Appx. 701, 702 (9th Cir. 2005). Here, Dr. Loberg testified that he had reviewed Ms. Sund's medical file. Loberg Dep. at 382:19-25, ECF No. 131-1. Again, Ms. Sund's medical screening form listed a number of medical conditions and prescriptions-including alprazolam-and specifically noted that Ms. Sund had suffered seizures from missed alprazolam doses. Mechling Decl. Ex. 3 at 8, ECF No. 131-1. Although Dr. Loberg further testified that he could not specifically remember reading Ms. Sund's screening report, he testified that he “sometimes” looks at them, and testified that he “briefly looked through” Ms. Sund's medical file. Supp. Montoya Decl. Ex. 1 at 4:7-22, ECF No. 148-11. A jury could conclude from that evidence that Dr. Loberg had seen Ms. Sund's screening form; it is not for this Court to resolve that ambiguity in the record.
Plaintiffs have provided expert testimony that “a competent medical professional should have recognized that there was a possibility that Ms. Sund had a dangerous benzodiazepine dependence, as evidenced by the fact that she had seizures if she missed a dose of alprazolam.” Kim Decl. ¶ 4(b), ECF No. 127.
Taking the evidence in the light most favorable to Plaintiffs, a jury could conclude based on the facts known to Dr. Loberg that his failure to ensure that Ms. Sund received her medications or was monitored for signs of withdrawal amounted to deliberate indifference.
For ease of reference, the Court uses the term “Deputies” to refer collectively to sergeants Evan Mohr and Melissa Werdell as well as deputies Matthew Blackshear, Callie Dugger, Ethan Garrison, Jonathan Herrick, Doree Johnson, Paul Lancaster, Nicholas Miller, Tanner Sparks, and Thomas White.
The Deputies all had different levels of awareness as to Ms. Sund's complaints, symptoms, and demands for medications. However, at minimum, there is evidence that all were present for some portion of the period of time Ms. Sund was reportedly vomiting. Mr. Sund heard Ms. Sund vomiting from the evening of December 21, 2018 through the “entire day” of December 22, 2018. Sund Decl. ¶¶ 9-10, ECF No. 125. The person in the cell next to Ms. Sund told investigators that Ms. Sund had been throwing up “pretty constantly” the “entire time” they were next to each other until she stopped “suddenly” the evening before her death. Mechling Decl. Audio Ex. 13F, ECF No. 131-1. The Jail is small such that noise is heard throughout the facility, including vomiting. See Mechling Decl. Audio Exs. 13A, 13E, ECF No. 131-1. The graveyard-shift staff had briefed the day-shift staff the night of December 21 that Ms. Sund “had been vomiting all night.” Mechling Decl. Ex. 8 at 195, ECF No. 131-1. In other words, there is sufficient evidence from which a jury could conclude that the Deputies were aware of the frequency and duration of Ms. Sund's vomiting.
In addition to that general knowledge, each of the Deputies had the following specific knowledge:
• Sergeant Mohr completed Ms. Sund's initial screening and therefore knew that she had reported prior seizures from missed alprazolam doses. Id. at 202. He witnessed Ms. Sund have a self-reported panic attack and heard her state that she was sick and wanted her medications. Id. He knew that Ms. Sund's medications would only be provided if they were brought in and that Ms. Sund had been unsuccessful in having them brought in. Id. at 203. He knew that Ms. Sund was sick and had been throwing up the morning of December 22, 2018. Id.
• Sergeant Werdell knew that Ms. Sund was on medications which were not being provided to her. Id. at 206. She witnessed Ms. Sund having a “difficult time breathing” on her first night at the Jail and noted that she “seemed to be panicking a little.” Id. She knew Ms. Sund had
been throwing up on December 21, and “could hear [her] throwing up throughout the night” despite having given her Pepto-Bismol. Id.
• Deputy Blackshear witnessed Ms. Sund's reported panic attack and knew that Ms. Sund had requested medications that the Jail was not providing. Mechling Decl. Audio Ex. 13C, ECF No. 131-1.
• Deputy Dugger was aware that Ms. Sund was having back and stomach pain and that her medications were not going to be provided to her. Mechling Decl. Ex. 8 at 183, ECF No. 131-1. She noticed vomit on Ms. Sund's bedding and pants and provided a Gatorade “to help dehydration.” Id.
• Deputy Garrison heard Ms. Sund “forcing herself to puke” the night of December 22, 2018. Id. at 185. He knew that Ms. Sund had requested multiple heat packs and that she had “puked on her clothing.” Id. He knew that she had complained of having back pain. Mechling Decl. Audio Ex. 13I, ECF No. 131-1.
• Deputy Herrick knew that Ms. Sund needed a new blanket on December 22, 2018, because her other one had been used to clean up vomit. Mechling Decl Ex. 8 at 186, ECF No. 131-1. He knew that Ms. Sund had vomited on the floor of her cell instead of the toilet which was nearby. Id. He knew that Ms. Sund had been brought up to a holding cell “due to her puking in her cell and because her constant yelling was bothering other inmates.” Id. He knew that she was requesting to use the phone. Id. He moved her from a cell with a toilet into one without and knew that she defecated in that cell after yelling about the need to use the restroom. Id. at 187. Deputy Herrick also knew that Ms. Sund had been asking for her medication and was unable to have it brought to her. Id. He noted that Ms. Sund had been loud and disruptive yelling that she needed medications, and that he could hear her throwing
up the evening of December 21, 2018. Mechling Decl. Audio Ex. 13J, ECF No. 131-1. Finally, he knew that the morning of Ms. Sund's death, after she had been moved back to her cell, Ms. Sund made a noise like a grunt or groan when asked if she would like a shower. Id.
• Deputy Johnson knew on the day prior to Ms. Sund's death that she had defecated in Holding Cell 2 and vomited on the floor of Cell 14. Mechling Decl. Ex. 8 at 190, ECF No. 131-1. She knew that Ms. Sund had requested Pepto-Bismol on the evening of December 22, 2018. Id. at 191. She knew that Ms. Sund was on medications which she was not being provided at the Jail and that she was not feeling well and wanted her medications. Mechling Decl. Audio Ex. 13K, ECF No. 131-1.
• Deputy Lancaster knew that Ms. Sund had been having behavioral issues and attributed such issues to possible detoxing. Mechling Decl. Audio Ex. 13M, ECF No. 131-1. He was present when Ms. Sund reportedly grunted or groaned in response to the offer of a shower. Id.; see also Audio Ex. 13J.
• Deputy Miller knew that Ms. Sund had “many medical needs” and was taking “many medications.” Id. Ex. 8 at 194-95. He was aware that on December 2018 she was complaining of back pain. Id. On the morning of December 22, 2018, Ms. Sund told him that she had been vomiting and “couldn't keep anything down.” Id. He saw that Ms. Sund's vomit “appeared to be a red liquid” consistent with having thrown up the red Gatorade she was given. Id. He heard her continue to vomit “periodically” until she was moved to holding for observation. Id. He knew that Ms. Sund had defecated in the corner of Holding Cell 2. Id. He specifically noted that he assumed Ms. Sund was detoxing. Id. Audio Ex. 13E.
• Deputy Sparks knew that Ms. Sund was requesting medications which the Jail was not providing. Id. Ex. 8 at 196. He knew that Ms. Sund had asked for Pepto-Bismol and muscle
relaxers on December 21. Id. He knew that Ms. Sund was having difficulty sleeping and lying down, although he did not know why. Id. Audio Ex. 13D. He heard Ms. Sund throw up “several times” throughout his shift on December 22 and knew that Ms. Sund had vomited on her bedding and pants and had requested a heat pack and Pepto-Bismol. Id. Ex. 8 at 197.
• Deputy White was present for Ms. Sund's December 20 reported asthma attack. Id. at 198. He knew that Ms. Sund was complaining of a sore back. Id. He knew that Ms. Sund had vomited in her cell, and that she requested Pepto-Bismol. Id. at 199.
The Deputies are trained to recognize the signs of withdrawal, including “aching muscles” and “nausea/vomiting.” Id. Ex. 32 at 528. They are further trained that “severe cases of nausea, vomiting, and/or diarrhea can result in life-threatening dehydration and electrolyte imbalances.” Id. They are instructed to provide Pepto-Bismol every four hours as needed, and to take “vital signs three times per day during the acute stage.” Id. At least one of the Deputies noted that Ms. Sund's “condition was consistent with people [he has] seen going through withdrawal.” Miller Dep. at 400:13-18, ECF No. 131-1. Deputy Miller assumed Ms. Sund was detoxing because she was given a Gatorade, typically reserved for inmates who are going through heroin detox. Mechling Decl. Audio Ex. Audio Ex. 13E, ECF No.131-1. When asked by investigators about Ms. Sund's behavior leading up to her death, Deputy Garrison noted that it was consistent with somebody who was detoxing. Id. Audio Ex. 13I. Although subjective knowledge is not required, the fact that some of the Deputies did recognize Ms. Sund's symptoms as withdrawal suggests that it is objectively reasonable that the other Deputies should have as well.
Plaintiffs have produced evidence in the form of expert opinion that, in light of what the Deputies knew, they were recklessly indifferent to Ms. Sund's serious medical need. Dr. Kim opined that Ms. Sund demonstrated symptoms and behavior consistent with benzodiazepine withdrawal, and that the Deputies' failure to take Ms. Sund's vitals or refer her to a healthcare provider demonstrated reckless disregard for Ms. Sund's health and safety. Dr. Kim Decl. ¶¶ 5-6, ECF No. 127. Further, Mr. Stanley, a former jail director with 52-years' experience in the field of corrections, opined that in light of the Deputies' knowledge of Ms. Sund's symptoms and their training in recognizing withdrawal symptoms, their failure to “take Ms. Sund's vitals, transport Ms. Sund to a hospital, or arrange for medical professionals to examine Ms. Sund demonstrates an intentional or reckless disinterest in Ms. Sund's health and well-being.” Stanley Decl. ¶¶ 1, 2, 6, ECF No. 130. In particular:
It is well documented that Ms. Sund was vomiting loudly and repeatedly, even when Jail deputies provided her with Gatorade and Pepto Bismol. The fact that these substances did not ameliorate Ms. Sund's symptoms should have alerted the Jail deputies to the clear signs of severe dehydration in Ms. Sund, which they are trained to recognize and treat. All of the deputies knew that Ms. Sund had been vomiting all night.. .And at the [sic] deputies seemingly recognized that Ms. Sund was exhibiting signs of withdrawal.Id. at ¶ 6(e).
Given the knowledge each of the Deputies had about Ms. Sund's symptoms, her requests for medication, and the training they had received regarding withdrawal, a reasonable jury could conclude that they demonstrated a deliberate indifference to Ms. Sund's serious medical need. In spite of that knowledge, none of the Deputies called Nurse Kelley, Dr. Loberg, or paramedics, and none of the Deputies took Ms. Sund's vitals.
Further, Deputies Lancaster and Herrick failed to check Ms. Sund for signs of life despite their knowledge of Ms. Sund's prior symptoms. This is additional evidence from which a jury could conclude that these deputies were deliberately indifferent. See id. at ¶ 7.
In sum, Plaintiffs have produced sufficient evidence to survive summary judgment on the issue of deliberate indifference by each of the Deputies.
4. Supervisory Liability of Dr. Loberg, Sheriff Jackson, and Capt. Rabago
Plaintiffs have alleged theories of supervisory liability against Dr. Loberg, Nurse Kelley, Sheriff Jackson, and Captain Rabago based on failure to train. Compl. ¶ 171, ECF No. 1. The County Defendants argue that they are entitled to summary judgment as to this theory because § 1983 does not permit claims based on vicarious liability theories.
Although Nurse Kelley is included in these allegations, her motion did not include any argument as to this theory of liability. Accordingly, the Court deems this argument waived and does not address it.
Although there is no vicarious liability under § 1983, supervisory officials may be liable “if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (internal quotation and citation omitted). In other words, “[e]ven if a supervisory official is not directly involved in the allegedly unconstitutional conduct, a supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (internal quotation and citation omitted). A mere allegation that policies and procedures authorized allegedly unconstitutional conduct is insufficient. Id. Instead, “acquiescence or culpable indifference may suffice to show that a supervisor personally played a role in the alleged constitutional violations.” Starr, 652 F.3d at 1208.
Here, Plaintiffs' theories against Dr. Loberg, Captain Rabago, and Sheriff Jackson are based on inadequate training, but Plaintiffs fail to point to any evidence that any of these three Defendants played any role in training at the Jail. Instead, Plaintiffs cite evidence that these Defendants develop, review, and approve Jail policies, and then Plaintiffs rely on the tenuous connection that “[i]f the polices put in place to protect the health and safety of inmates are themselves inadequate, the deputies trained to execute those policies are inadequately trained to protect the health and safety of inmates.” Pl.'s Resp. at 43, ECF No. 124. Plaintiffs do not cite any authority to support the assertion that such a connection can serve as a basis of supervisory liability. Without any evidence of “culpable action or inaction in the training, supervision, or control of [their] subordinates,” Dr. Loberg, Captain Rabago, and Sheriff Jackson are entitled to summary judgment on Plaintiffs' supervisory liability claims.
C. Causation
To satisfy the causation element of a § 1983 claim, a plaintiff must prove that by not taking reasonable available measures to abate the plaintiff's substantial risk of suffering serious harm, “the defendant caused the plaintiff's injuries.” Gordon, 888 F.3d at 1125. Here, Plaintiffs have submitted evidence in the form of expert opinion that Ms. Sund would not have died had the Defendants provided appropriate intake screening or called a medical professional to assess Ms. Sund. See Kim Decl. ¶¶ 4, 6, ECF No. 127.
Even if Plaintiffs had not supplied expert testimony on the issue of causation, there is enough evidence in the record for a reasonable jury to conclude that the Defendants' allegedly inadequate medical care caused Ms. Sund's death. Specifically, they have provided evidence that Ms. Sund died of alprazolam withdrawal and dehydration, and a reasonable jury could conclude that had Ms. Sund been treated for these conditions, she may have survived. Accordingly, there is enough evidence of causation to survive summary judgment.
II. Qualified Immunity
Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks and citation omitted). The purpose of qualified immunity is to “strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.'” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S. at 231). Qualified immunity “applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231.
“Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Here, the Court has already found that Plaintiff has presented sufficient evidence from which a reasonable jury could find that Ms. Sund's right to constitutionally adequate medical care was violated. Thus, the first prong of the analysis is satisfied, and the remaining question is whether the right violated was clearly established in light of the specific context of the case.
The Supreme Court has emphasized that the asserted right “must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (brackets and internal quotation marks omitted).
To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be “settled law,” which means it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive authority[.]' ” It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that “every reasonable official” would know.District of Columbia v. Wesby, 138 S.Ct. 577, 589-90 (2018) (citations omitted). In other words, while qualified immunity does not require “a case directly on point, [ ] existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
It has been clearly established since at least 2013 that “failing to provide ... life saving measures to an inmate in obvious need can provide the basis for liability under § 1983 for deliberate indifference.” Sandoval, 985 F.3d at 679-80, quoting Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013). Summarizing case law established prior to Ms. Sund's death, the Ninth Circuit explained in Sandoval:
Our cases make clear that prison officials violate the Constitution when they “deny, delay or intentionally interfere” with needed medical treatment. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). The same is true when prison officials choose a course of treatment that is “medically unacceptable under the circumstances.” Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)), overruled on other grounds by Peralta, 744 F.3d 1076.Sandoval, 985 F.3d at 679.
Sandoval makes clear that case law which existed prior to Ms. Sund's death established that failure to provide care to an inmate in obvious need (as sufficient evidence exists for a jury to conclude the Deputies did here) violates that inmate's constitutional right to adequate medical care. Likewise, by choosing a medically unacceptable course of treatment under the circumstances (as sufficient evidence exists for a jury to conclude that Dr. Loberg and Nurse Kelley did here in failing to address Ms. Sund's potential for alprazolam withdrawal) violates an inmate's constitutional right to adequate medical care. Because the case law was sufficiently clear on these issues at the time of Ms. Sund's death, Defendants are not entitled to qualified immunity.
III. Municipal Liability
In certain circumstances, a municipality may be held liable as a “person” under § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). However, “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. Liability only attaches where the municipality itself causes the constitutional violation through the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694; see also Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992) (“[i]f the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability”) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988)).
There are three methods by which a plaintiff may establish municipal liability under Monell. First, a local government may be liable where the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflict[s] the injury.” Rodriguez v. City of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) (quoting Monell, 436 U.S. at 694). Second, a local government can fail to train employees in a manner that amounts to “deliberate indifference” to a constitutional right, such that “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [government entity] can reasonably be said to have been deliberately indifferent to the need.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Third, a local government may be held liable if “the individual who committed the constitutional tort was an official with final policy-making authority or such an official ratified a subordinate's unconstitutional decision or action and the basis for it.” Id. at 802-03 (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013)).
Plaintiffs identify seven distinct “policies” forming the basis of their Monell claims. The Court addresses each subclaim or group of related subclaims in turn.
Plaintiffs' Response also asserts that the Jail's “post-death failures to discipline or modify the operation of Benton County Jail evidence the existence and nature of a policy, custom, or practice of deliberate indifference.” Pl.'s Resp. at 59, ECF No. 124. It is unclear to the Court whether Plaintiffs intended this argument as an alternative theory of Monell liability or as evidence of the other Monell theories. In either event, the Court does not address the argument. If the former, the Court cannot deny summary judgment on the basis of a theory not alleged in Plaintiffs' Complaint. If the latter, Plaintiffs have failed to articulate how this evidence is probative of the existence of municipal liability on the theories Plaintiffs did allege.
A. Inadequate medical services
Plaintiffs identify two closely related policies or customs related to Benton County's medical services generally: that Benton County had “[a] policy, custom or practice of” (1) “providing insufficient medical coverage at the Benton County Jail,” and (2) “failing to meet widely accepted community standards of care with regard to medical services for jail inmates.” Comp. ¶ 176(a), (g), ECF No. 1.
Benton County argues that it is entitled to summary judgment as to these subclaims because Plaintiffs have failed to identify an official policy sufficient to trigger Monell liability and that even if they could identify a policy, there is insufficient evidence of causation. Benton County's argument is similar to that made by the Defendants in Cabrales v. Cnty. of Los Angeles, in which the Ninth Circuit explained:
[Defendants] claim that no policymaker... established or adopted a policy of deliberate indifference to the decedent's needs. This contention misses the point. The [defendants] seem to argue that only affirmative acts constitute a policy or custom for section 1983 purposes, and no policy-maker “affirmatively” adopted a policy of deliberate indifference. Such is not the case. The very notion of deliberate “indifference” connotes a regime where neglect of detainees' medical and psychological needs proves a constitutional violation. Also, acts of omission, as well as commission, may constitute the predicate for a finding of liability under section 1983. See Estelle, 429 U.S. at 106, 97 S.Ct. at 292 (“In order to state a cognizable [1983] claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” (emphasis added)); Roberts, 773 F.2d at 725.864 F.2d 1454, 1461 (9th Cir. 1988), cert. granted, judgment vacated, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989), and opinion reinstated, 886 F.2d 235 (9th Cir. 1989). In other words, a lack of policy or a policy which is insufficient may be characterized as one of omission. Plaintiffs' subclaims related to the lack of appropriate medical staffing and falling below “widely accepted community standards of care” are allegations of such policies.
To establish a policy of omission sufficient under § 1983, “a plaintiff must show, in addition to a constitutional violation, that this policy amounts to deliberate indifference to the plaintiff's constitutional right.. .and that the policy caused the violation, in the sense that the municipality could have prevented the violation with an appropriate policy. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012) (internal citations and quotations omitted). Municipal liability “may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). In other words, an unwritten policy or custom must be so “persistent and widespread” that it constitutes a “permanent and well settled” practice. Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)).
Here, the summary judgment record contains sufficient facts to establish policies of omission related to medical staffing and the other standards of care identified in Plaintiffs' experts' declarations. Specifically, Plaintiffs present evidence that Dr. Loberg was only present at the Jail for an hour or two per week, that Nurse Kelley was only on-site 30 hours per week, that the Jail had no process for replacing Nurse Kelley while she is on leave, and that some medical tasks were delegated to Deputies.
Likewise, there is sufficient evidence for a jury to conclude that the Jail had a policy of medical care which fell below acceptable standards of care. Plaintiffs' expert declarations identify policies falling below community standards related to cell checks and withdrawal/detoxification protocols. See Stanley Decl. ¶¶ 7,10, ECF No. 130; Pearson Decl. ¶ 12, ECF No. 129. These declarations support their conclusions with references to the factual record.
Defendants' alternative argument-that even if Plaintiffs could establish a policy, there is insufficient evidence of causation-also fails. Given the evidence in the record as to Ms. Sund's cause of death, there is sufficient evidence for a reasonable jury to conclude that more medical staff, a clear cell-check policy, and different withdrawal/detoxification protocols all could have prevented Ms. Sund's death.
Defendant did not argue the “deliberate indifference” prong of these alleged subclaims, instead focusing on the existence of a policy and causation. The Court therefore deems that argument waived for purposes of this motion. In any event, the Ninth Circuit has “consistently has found that a county's lack of affirmative policies or procedures to guide employees can amount to deliberate indifference, even when the county has other general policies in place.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1189 (9th Cir. 2006).
B. Failure to train
Next, Plaintiffs have asserted numerous Monell subclaims pertaining to alleged policies of inadequate training: “a policy, custom, or practice of failing to ensure that employees of the Benton County Jail had proper training in.. .responding to the serious medical needs of jail inmates.. .the screening of people being admitted to the Benton County Jail.. .[and] conducting cell checks.” Compl. ¶ 176(c)-(e), ECF No. 1.
Plaintiffs' Complaint alleges a second “screening”-related Monell subclaim: “A policy, custom, or practice of not providing proper receiving or intake screenings for people detained in the Benton County Jail. Compl. ¶ 176(b), ECF No. 1. However, Plaintiffs' grouping of this subclaim with the other inadequate training subclaims in their Response appears to concede that the “screening” issue is a matter of training rather than lack of policy generally. Pl.'s Resp. at 63, ECF No. 124. To the extent that Plaintiffs intended this subclaim to be based on a lack of policy rather than lack of training, they have failed to provide sufficient evidence on this subclaim because one of Plaintiffs' own experts specifically identifies a screening policy and characterizes the screening issue as a failure to follow that policy. See Pearson Decl. ¶ 8, ECF No. 129.
The Supreme Court has held that “there are limited circumstances in which an allegation of a ‘failure to train' can be the basis for liability under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In fact, “[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). A municipality's failure to train is only actionable when it amounts to “deliberate indifference,” which “ordinarily” requires a pattern of similar constitutional violations. Id. at 62. However, “in a narrow range of circumstances, a pattern of similar violations might not be necessary to show deliberate indifference” where “the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations.” Id. (internal quotations and citation omitted)
Here, there is no evidence in the record that Benton County's alleged failure to train in these areas have resulted in constitutional violations previously. Specifically in the context of inmate withdrawal and cell checks, the Ninth Circuit has held that a Monell claim cannot lie without evidence of another “event involving similar conduct or constitutional violations.” Gordon v. Cnty. of Orange, 6 F.4th 961, 974 (9th Cir. 2021). Likewise, inadequate training as to medical screening is “not one of the rare cases where single-incident liability can support a failure to train theory.” Nordenstrom for Est. of Perry v. Corizon Health, Inc., No. 3:18-CV-01754-HZ, 2021 WL 2546275, at *14 (D. Or. June 18, 2021).
Accordingly, Benton County is entitled to summary judgment as to Monell subclaims (b)-(e) in Paragraph 176 of Plaintiffs' Complaint.
C. Inadequate Hiring
Finally, Plaintiffs allege a “policy, custom, or practice of hiring personnel indifferent to the medical needs of jail inmates.” Compl. ¶ 176(f). In opposition to summary judgment, Plaintiffs offer the opinion of Mr. Stanley as to deficiencies in the Deputies' “(1) failure to take Ms. Sund's vital signs; (2) failure to recognize the need to take Ms. Sund to a hospital; and (3) failure to arrange for Ms. Sund to be immediately seen by a medical professional.” Pl.'s Br. 63, ECF No. 124.
Plaintiffs do not cite any authority for the proposition that the failures of any individual employees can be converted into a Monell claim simply by framing it as a hiring issue. Beyond the conduct at issue in this case, there is no evidence that Benton County has a longstanding policy of hiring indifferent staff. Moreover, there is no evidence in the record regarding Benton County's hiring practices or the general propensity of its personnel to be “deliberately indifferent to the medical needs of jail inmates” beyond the specific allegations in this case. As with the inadequate training claim, in the absence of such evidence Plaintiffs have not satisfied their burden on summary judgment relating to this Monell subclaim, and summary judgment should be granted.
IV. State Law Negligence Claim
Defendants Kelley, Dr. Loberg, and Benton County move to dismiss the state law negligence claim against them, arguing that Plaintiffs cannot establish that the Defendants violated the standard of care for similar healthcare providers in the community, and that expert testimony is required.
Defendant Benton County made the additional argument that a state law negligence claim must be based on different facts than the § 1983 claim, and the claims against the County rest on the same facts under both claims. However, Defendants' Reply concedes that more recent case law supplants this argument. See County Def.'s Reply at 33, ECF No. 167.
Under Oregon's negligence case law, “unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari By & Through Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326, 1336 (1987).
Here, Plaintiffs invoke Defendants' duty to provide for the medical care of inmates at the Jail. See Pl.'s Resp. at 57, ECF No. 124. This Court has previously recognized that one of the special relationships referred to in Fazzolari is “that of inmates and their jailors.” See Hanington v. Multnomah Cnty., 593 F.Supp.3d 1022, 1044 (D. Or. 2022), citing Or. Rev. Stat. § 169.140 (“[L]ocal correctional facility shall ... supply ... necessary medical aid”). “[I]n practical terms, this translates into a county's duty to comply with its own policies, relevant licensing standards, and the general standard of care for its industry. Thomas v. Deschutes Cnty., No. 6:19-CV-01781-AA, 2022 WL 2704176, at *5 (D. Or. July 12, 2022) (internal quotations and citation omitted).
Plaintiffs have provided expert declarations that detail standards of care and/or Jail policy and how Defendants' conduct violated that standard of care and/or those policies. See Kim Decl., ECF No. 127; Jones Decl., ECF No. 126; Pearson Decl., ECF No. 129; Stanley Decl., ECF No. 130. Defendants discount this expert evidence on the basis that the opinions as to Ms. Sund's cause of death are based on speculation and contradict Ms. Sund's medical records. County Def.'s Reply at 35, ECF No. 167; Kelley Reply at 8-10, ECF No. 143. Plaintiffs' experts' declarations identify the experts' credentials and the bases for their opinions. Id. Finally, as previously addressed, Plaintiffs have produced sufficient evidence on the issue of causation to survive summary judgment.
Viewing all evidence in the light most favorable to Plaintiffs, this expert evidence is sufficient to defeat Defendants' motion for summary judgment as to the negligence claims against Nurse Kelley, Dr. Loberg, and Benton County.
V. Emotional Distress Claims
A. Whether ORS 30.020 Precludes Emotional Distress Damages
Defendant Benton County contends that Or. Rev. Stat. § 30.020 precludes Mr. Sundfrom recovering damages in a wrongful death action. That statute allows the personal representative of a decedent, on behalf of the decedent's heirs, to maintain an action that “the decedent might have maintained.. .had the decedent lived.” Or. Rev. Stat. § 30.020(1). It includes a list of recoverable damages, including economic damages as well as loss of society, companionship, and services. Or. Rev. Stat. § 30.020(2). Benton County relies on the Oregon Court of Appeals' holding that “emotional distress damages are not recoverable in a wrongful death action.” Horwell by Penater v. Oregon Episcopal Sch., 100 Or.App. 571, 787 P.2d 502 (1990).
The parties briefing refer to the emotional distress claims as “Plaintiffs'” claims. However, these claims are pled by Mr. Sund alone. See Compl. ¶¶ 184-192, ECF No. 1.
Plaintiff acknowledges the rule in Horwell but contends that it means only that a plaintiff cannot recover emotional damages from the death itself. Pl. Resp. at 65. Plaintiff relies on Simons v. Beard, 188 Or.App. 370, 72 P.3d 96 (2003) to argue that Mr. Sund's emotional suffering prior to his wife's death is compensable and is not precluded by Oregon's wrongful death statute. In Simons, plaintiff sued her treating obstetrician for malpractice when she suffered a miscarriage while under his care. Id. at 372-73. She claimed emotional distress damages based on her “severe apprehension as to the safety and well being of herself and her child.” Id. at 373. The plaintiff acknowledged that emotional distress for the loss of the “loss of her baby” was not compensable, but argued that the damages she sought were actually for the distress associated with the miscarriage (i.e. her fear for her unborn child's safety). Id. at 374-75. The Oregon Court of Appeals agreed with the plaintiff that her “apprehension about the fate of her unborn child” was “distinct from a wrongful death-based recovery of emotional distress damages” and was recoverable. Id. at 379.
The allegations that form the basis of Mr. Sund's are analogous to those allowed in Simons and are therefore recoverable as distinct from those under Or. Rev. Stat. § 30.020. Plaintiff refers to “having to listen to the intense suffering of his wife.and being powerless to help” and pleads that “[n]o one should have to listen to his wife die, especially while that person is in a position where he is powerless to assist and those that can assist refuse to do so. Id. at ¶¶ 186-187. Plaintiffs' pleadings refer only to Mr. Sund's emotional distress prior to his wife's death, not that caused by her death. See Compl. ¶¶ 185-197, ECF No. 1. These allegations are similar to the “apprehension about the fate” of the plaintiff's unborn child in Simons and Mr. Sund has therefore pled theories of recovery that are distinct from the Estate of Alyssa Sund's wrongful death claim and not precluded by ORS 30.020.
B. Merits of Emotional Distress Claims
Benton County moved against Mr. Sund's emotional distress claims based on the legal argument that such damages are precluded by Or. Rev. Stat. § 30.020. See County Def.'s Mot. at 22, ECF No. 112. On reply, Benton County presents the additional argument that the claims themselves are meritless based on the facts in the summary judgment record. See County Def.'s Reply at 36-40, ECF No 167. Although courts have broad discretion to consider arguments raised for the first time in a reply, see Lane v. Dep't of Interior, 523 F.3d 1128, 1140 (9th Cir. 2008), the Court will not exercise its discretion to do so here. Benton County could have made this argument in its opening brief, in which case Plaintiff would have had the opportunity to identify the evidence creating an issue of fact on the merits of Mr. Sund's emotional distress claims, but they did not do so. The Court will not consider this additional argument.
RECOMMENDATION
For the reasons above, Defendant Nicole Kelley's Motion for Summary Judgment (ECF No. 114) should be DENIED, and the County Defendants' Motion for Summary Judgment (ECF No. 112) should be GRANTED in part and DENIED in part. Summary judgment should be granted on the following subclaims: (1) Plaintiffs' § 1983 supervisory liability subclaims against Dr. Lance Loberg, Scott Jackson, and Diana Rabago. Compl. ¶ 171, ECF No. 1; and (2) Plaintiffs' Monell subclaims against Benton County pertaining to inadequate training and hiring. Id at ¶ 176(b)-(f).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).