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3

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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7 JOHN SCALIA, individually and as successor- 1:17-cv-01097-LJO-SKO in-interest of Decedent KIMBERLY 8 MORRISSEY-SCALIA, MEMORANDUM DECISION AND

ORDER RE DEFENDANTS’ MOTION

9 Plaintiff, FOR SUMMARY JUDGMENT

10 v. (ECF No. 67)

11 COUNTY OF KERN, et al.,

12 Defendants.

13

14 I. INTRODUCTION

15 This case arises from the death of Kimberly Morrissey-Scalia, who died after falling from her

16 bunk while she was a pretrial detainee at Kern County Jail. Decedent’s husband, John Scalia

17 (“Plaintiff”), brings claims individually and on behalf of his late wife’s estate. Plaintiff brings this case

18 against Kern County, Kern County Hospital Authority (“KCHA”), Kern County Sheriff Donny

19 Youngblood, Kern County Sheriff’s Sergeant Joel Swanson, Kern County Sheriff’s Detention Deputies

20 Randi Allen and Misty Miller, KCHA Staff Nurse Rowena P. Blakely, and Does 1-100, alleging

21 deliberate indifference under 42 U.S.C. § 1983 and state law causes of action. Having carefully

22 considered the record in this case, the parties’ briefing, and the relevant law, summary judgment will be

23 GRANTED IN PART and OTHERWISE DENIED.

24

25 2 A. Factual Background1

3 Kimberley Morrison-Scalia was the wife of Plaintiff John Scalia. ECF No. 69 ¶ 1. Ms. Scalia

4 was arrested on June 21, 2016, and was detained in the Kern County Central Receiving Facility and

5 Lerdo Pretrial Detention Facility at all times relevant to this case. Id. Defendant Rowena Blakely had

6 worked at the Lerdo Pretrial Detention Facility as a registered nurse since 1993. Id. ¶ 8. On June 27,

7 2016, at approximately 11:15 p.m., Deputy Randi Allen was notified that Ms. Scalia had fallen from a

8 top bunk in her cell and had struck her head. Id. ¶ 12. Although Ms. Scalia was standing when Deputy

9 Allen arrived at her cell, at some point during the walk to the infirmary Ms. Scalia stated she could not

10 walk anymore, Deputy Allen obtained a wheelchair, and wheeled her to the infirmary. Id. ¶¶ 13, 15.

11 Upon arrival to the infirmary, Deputy Allen told Nurse Blakely that Ms. Scalia had fallen off her bunk

12 and hit her head. Id. ¶ 16. Ms. Scalia told Nurse Blakely that she fell and hit the left side of her face,

13 left elbow, and left knee. Id. ¶ 18. Nurse Blakely took Ms. Scalia’s vital signs, noted a small abrasion

14 on Ms. Scalia’s left knee, and at Ms. Scalia’s request, administered previously prescribed medication.

15 Id. ¶¶ 19-22. Nurse Blakely ordered Ms. Scalia to be housed on a lower tier and lower bunk and ordered

16 a follow up visit with a physician to occur on June 30, 2016. Id. ¶ 23. Ms. Scalia was taken to a lower

17 tier, low bunk cell. Id. ¶ 24. In total, Nurse Blakely’s examination lasted several minutes at most, and

18 Nurse Blakely did not perform a formal neurological assessment, did not ask Ms. Scalia why she was in

19 a wheelchair, did not ask Ms. Scalia whether she had been unconscious, did not ask Ms. Scalia to

20 attempt to walk without assistance, and did not call a physician. Id. ¶¶ 17, 20.

21 Several hours later, at approximately 2:30 a.m. on June 28, 2016, Nurse Blakely was called for

22

23 1 The parties have significant disagreements as to which facts are established and which facts remain disputed. See ECF Nos. 24 67-7, 69, 73-1. Plaintiff and Defendants also lodged numerous objections to evidence submitted by the other party. See id. The Court has reviewed the parties’ factual disputes, and objections and responses thereto, and finds that the following facts 25 are undisputed or not credibly disputed. Further, the Court has reviewed the objections (and the responses) to the evidence 2 emergency intercom message from Ms. Scalia’s cellmate, the deputy found Ms. Scalia on the floor,

3 unconscious. Id. ¶¶ 25-26, 28. Deputy Allen observed Ms. Scalia was unconscious, non-responsive,

4 mumbling, and pale, and found her on the ground near the toilet, with vomit all over the toilet and on

5 Ms. Scalia, and her hands and feet curled in. Id. ¶¶ 27-28. Ms. Scalia was assisted up on a gurney and

6 taken to the infirmary. Id. ¶ 29. Nurse Blakely took Ms. Scalia’s vitals and noted a small bump to

7 Ms. Scalia’s left eyebrow. Id. ¶ 34. There is a genuine dispute whether Ms. Scalia fell from her bunk a

8 second time. See, e.g., Id. ¶¶ 34-35. Based on her 2:30 a.m. assessment, Nurse Blakely filled out a

9 referral form to send Ms. Scalia to Kern Medical Center Emergency Room. Id. ¶ 36. Nurse Blakely’s

10 referral did not state Ms. Scalia had hit her head, that Ms. Scalia could not walk during the initial exam,

11 nor that Ms. Scalia was unconscious and non-responsive during the second exam. Id. ¶ 36.

12 The ambulance driver documented that Ms. Scalia was mentally confused and spoke in a

13 nonsensical manner. ECF No. 73-1 ¶ 129. The ambulance arrived at the Kern County Medical Center

14 at 3:34 a.m. on June 28, 2016. ECF No. 69 ¶ 39. Ms. Scalia was initially examined by an E.R. nurse

15 and then an E.R. physician, who found Ms. Scalia alert, responsive, and with gross motor function and

16 sensation intact. Id. ¶ 40. However, around 4:54 a.m. Ms. Scalia became incontinent, and the doctor

17 ordered a CT Scan for Ms. Scalia. Id. ¶ 42. At approximately 5:52 a.m., the CT scan showed “large

18 acute left hemispheric subdural hematoma with significant mass effect and subfalcine herniation to the

19 right and likely early changes of transtentorial herniation with mild mass effect on the brainstem.” Id.

20 ¶ 44. At approximately 8:20 a.m., Ms. Scalia was taken to the operating room for surgery. Id. ¶ 45.

21 However, Ms. Scalia never recovered, was placed on comfort measures by her family on June 30, 2017,

22 and Ms. Scalia was pronounced dead at 12:05 a.m. on July 1, 2016. Id. ¶ 46. An autopsy determined

23 that Ms. Scalia died from blunt injury to the head. Id. ¶ 48. There is a factual dispute whether

24 Ms. Scalia’s cirrhosis or alcoholism complicated the head trauma. See, e.g., id. ¶ 49. There is also a

25 factual dispute regarding whether Ms. Scalia would have survived had surgery been performed earlier. 2 Defendants County of Kern and KCHA are public entities. Id. ¶ 2. Defendant County of Kern

3 operates the Lerdo Pretrial Detention Facility. ECF No. 69 ¶ 3. The employment of the Lerdo Pretrial

4 Detention Facility infirmary nursing staff, including Nurse Blakely, was transitioned from the County of

5 Kern to KCHA on July 1, 2016. See ECF No. 69 ¶ 9.

6 B. Procedural Background

7 Plaintiff filed this lawsuit on June 17, 2016, in Fresno County Superior Court. ECF No. 1, Exs.

8 A & B. Defendants timely removed to this Court on August 19, 2017. ECF No. 1. Defendants moved

9 for summary judgment on July 2, 2019. ECF No. 67. Plaintiff filed his opposition on July 30, 2019. 10 ECF Nos. 69-72.2 Defendants filed their reply on August 6, 2019. ECF No. 73. Pursuant to Local Rule

11 230(g), the Court determined that this matter was suitable for decision on the papers and took it under

12 submission on August 7, 2019. ECF No. 74.

13 III. LEGAL STANDARD

14 Summary judgment is appropriate when there is no genuine issue as to any material fact and the

15 moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. At summary judgment, a

16 court’s function is not to weigh the evidence and determine the truth but to determine whether there is a

17 genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must

18 draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility

19 determinations or weigh the evidence. See id. at 255; see also Reeves v. Sanderson Plumbing Prods.,

20

21

22 2 Plaintiff’s Statement of Genuine Issues of Material Fact ends with a seven-page “Memorandum of Points and Authorities on Spoliation of Video Evidence.” ECF No. 69 at 77-84. Plaintiff argues that KCHA should be sanctioned for its failure to maintain video surveillance recordings at the jail infirmary. Id. The Court is not obligated to consider Plaintiff’s request that 23 does not comply with the federal or local motion practice rules. And the Court agrees with Defendants that there is no evidence KCHA had possession or control over the videotapes, or otherwise committed spoliation of the tapes. The County 24 of Kern appears to be the sole party responsible for the videotapes, but Plaintiff does not seek sanctions against the County of Kern. Nevertheless, the Court is concerned that potentially relevant evidence was destroyed, intentionally or otherwise, 25 despite a timely p reservation request. Therefore, Plaintiff’s request for sanctions is DENIED without prejudice. Plaintiff 2 significantly probative, summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50. A

3 fact is “material” if its proof or disproof is essential to an element of a plaintiff’s case. Celotex Corp. v.

4 Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is “genuine” “if the evidence is such that a

5 reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, Inc., 477 U.S. at 248.

6 “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving

7 party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp.,

8 475 U.S. 574, 587 (1986) (internal citation omitted).

9 The moving party bears the initial burden of informing the Court of the basis for its motion, and

10 of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a

11 genuine issue of material fact for trial. Celotex, 477 U.S. at 323. If the moving party meets its initial

12 burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set

13 forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See

14 Fed. R. Civ. P. 56(c); Liberty Lobby, Inc., 477 U.S. at 250.

15 IV. DISCUSSION

16 Defendants argue that: (1) Plaintiff’s First and Second Causes of Action against Nurse Blakely

17 and KCHA pursuant to § 1983 fail because Defendants are entitled to qualified immunity; (2) Plaintiff’s

18 Second Cause of Action against KCHA fails because there is no evidence of a custom, practice, or

19 policy of KCHA that caused Ms. Scalia’s injuries; (3) Plaintiff’s Bane Act claim fails because Nurse

20 Blakely did not act with the requisite intent; (4) Plaintiff’s Fourth Cause of Action against KCHA

21 pursuant to Cal. Gov. Code § 845.6 fails because medical care was summoned and KCHA is statutorily

22 immune; (5) Plaintiff’s Sixth Cause of Action against KCHA for professional negligence fails because

23 KCHA is statutorily immune; (6) Plaintiff’s punitive damage claim fails because Nurse Blakely did not

24 act with malice, oppression or intent to injure; (7) John Scalia, individually, lacks standing to sue on

25 each cause of action except the Sixth Cause of Action for Professional Negligence. Plaintiff opposes 2 A. Qualified Immunity on § 1983 Deliberate Indifference Claim

3 The Civil Rights Act, codified at 42 U.S.C. § 1983, provides in relevant part:

4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the

5 Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

6

7 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

8 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94

9 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Qualified immunity is an

10 affirmative defense to a § 1983 claim that “shield[s] an officer from personal liability when an officer

11 reasonably believes that his or her conduct complies with the law.” Pearson v. Callahan, 555 U.S. 223

12 (2009). The doctrine “protects government officials ‘from liability for civil damages insofar as their

13 conduct does not violate clearly established statutory or constitutional rights of which a reasonable

14 person would have known.’” Id. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

15 Further, it “balances two important interests—the need to hold public officials accountable when they

16 exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability

17 when they perform their duties reasonably.” Id. “The protection of qualified immunity applies

18 regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake

19 based on mixed questions of law and fact.” Id.

20 To determine whether officers are entitled to qualified immunity, a court conducts a two-step

21 inquiry. “The threshold inquiry in a qualified immunity analysis is whether the plaintiff’s allegations, if

22 true, establish a constitutional violation.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir.

23 2003) (citations omitted). “Second, if the plaintiff has satisfied this first step, the court must decide

24 whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.”

25 Pearson, 555 U.S. at 231. To be a clearly established constitutional right, a right must be sufficiently 2 Reichle v. Howards, 566 U.S. 658, 664 (2012) (citation and internal quotation marks omitted). “[T]he

3 relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be

4 clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v.

5 Katz, 533 U.S. 194, 202 (2001). This inquiry “must be undertaken in light of the specific context of the

6 case, not as a broad general proposition.” Id. at 20. “This is not to say that an official action is protected

7 by qualified immunity unless the very action in question has previously been held unlawful, . . . but it is

8 to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton,

9 483 U.S. 635, 640 (1987) (citations omitted); see also City of Escondido, Cal. v. Emmons, 139 S. Ct.

10 500, 503 (Jan. 7, 2019).

11 Consequently, at summary judgment, an officer may be denied qualified immunity in a § 1983

12 action “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show

13 that the officer’s conduct violated a constitutional right, and (2) the right at issue was clearly established

14 at the time of the incident such that a reasonable officer would have understood [his] conduct to be

15 unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). In making

16 this determination, the Court still must view the evidence in the light most favorable to the nonmoving

17 party. Tolan v. Cotton, 572 U.S. 650 (2014). The issue of qualified immunity is “a pure question of

18 law.” Elder v. Holloway, 510 U.S. 510, 514 (1994). But, “[w]here disputed facts exist, [a court]

19 determines if the denial of qualified immunity was proper by assuming that the version of events offered

20 by the non-moving party is correct.” Wilkins, 350 F.3d at 951.

21 As described below, taking all the evidence in the light most favorable to Plaintiff, a reasonable

22 jury could find Defendants were deliberately indifferent to Ms. Scalia’s constitutional right to adequate

23 medical care. Moreover, this right was clearly established at the time of the incident such that a

24 reasonable person would understand the failure to provide medical assistance to Ms. Scalia was

25 unlawful. 2 care requires allegations that each defendant acted with deliberate indifference to the decedent’s serious

3 medical needs. See Castro v. County of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc).

4 Inmates bringing deliberate indifference claims against prison officials “may do so under the Eighth

5 Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth

6 Amendment’s Due Process Clause.” Id. at 1067-68; see also Mendiola–Martinez v. Arpaio, 836 F.3d

7 1239, 1246 n.5 (9th Cir. 2016) (“Eighth Amendment protections apply only once a prisoner has been

8 convicted of a crime, while pretrial detainees are entitled to the potentially more expansive protections

9 of the Due Process Clause of the Fourteenth Amendment.”). Under either clause, a plaintiff must show

10 that the prison officials acted with “deliberate indifference.” Id. at 1068.

11 The Court noted in its ruling on Defendants’ motion to dismiss that following the Supreme

12 Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), and the Ninth Circuit’s decision in

13 Castro, 833 F.3d 1060, the applicable standard for a pretrial detainee’s claim of deliberate indifference

14 to a serious medical need was less clear, but that an objective standard likely applied. See ECF No. 28

15 at 5. The Ninth Circuit has since confirmed in Gordon v. County of Orange that a pretrial detainee’s

16 claim for medical deliberate indifference is subject to a solely objective standard. 888 F.3d 1118, 1124-

17 25. The Ninth Circuit held that deliberate indifference to a pretrial detainee’s untreated medical

18 conditions requires a plaintiff to demonstrate:

19 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;

20 (ii) those conditions put the plaintiff at substantial risk of suffering serious harm;

21 (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have

22 appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and

23 (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.

24 Id. at 1125; see also Ninth Circuit Model Civil Jury Instructions No. 9.30 (2019) (providing same test as

25 2 needed medical care”). “With respect to the third element, the defendant’s conduct must be objectively

3 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each particular case.’”

4 Gordon, 888 F.3d at 1124-25 (quoting Castro, 833 F.3d at 1071) (internal quotation marks and citations

5 omitted). “The ‘mere lack of due care by a state official’ does not deprive an individual of life, liberty,

6 or property under the Fourteenth Amendment.” Id. (quoting Castro, 833 F.3d at 1071) (internal

7 quotation marks and citations omitted). As before, “[a]n inadvertent failure to provide adequate medical

8 care does not, by itself, state a deliberate indifference claim for § 1983 purposes.” Wilhelm, 680 F.3d at

9 1122 (emphasis in original) (quotation marks omitted). Thus, the plaintiff must “prove more than 10 negligence but less than subjective intent—something akin to reckless disregard.” Gordon, 888 F. 3d. at

11 1125 (quoting Castro, 833 F.3d at 1071).

12 Here, viewing the evidence in the light most favorable to Plaintiff, there are genuine disputes of

13 material fact and a reasonable jury could find Defendants were deliberately indifferent to Ms. Scalia’s

14 medical needs.

15 First, it is undisputed that Nurse Blakely made numerous intentional decisions with respect to the

16 denial of Ms. Scalia’s medical care, most critically the decision to return Ms. Scalia to a cell after the

17 first examination, despite knowing that Ms. Scalia had fallen from the top bunk and suffered a head

18 injury from hitting the concrete floor. See ECF No. 69 ¶ 23; ECF No. 73-1 ¶¶ 111, 131. There are also

19 factual disputes regarding Nurse Blakely’s intentional decisions to not act during both of her

20 examinations, such as deciding to not call a physician nor perform a formal neurological assessment.

21 See ECF No. 69 ¶¶ 17, 20; ECF No. 73-1 ¶¶ 113, 126-128, 130, 132-39, 147-53.

22 Second, there are genuine material factual disputes regarding whether the alleged denial of

23 needed medical care put plaintiff at substantial risk of suffering serious harm. Ultimately, Plaintiff

24 provides evidence that that Ms. Scalia suffered serious head trauma, that Nurse Blakely’s intentional

25 decisions delayed treatment and exacerbated the injury, and that earlier detection and treatment of the 2 139, 147-53.

3 Third, at a minimum, there are genuine material factual disputes regarding whether Nurse

4 Blakely did not take reasonable available measures to abate that risk, even though a reasonable official

5 in the circumstances would have appreciated the high degree of risk involved—making the

6 consequences of her conduct obvious. Ms. Scalia fell from about five feet onto bare concrete, hitting her

7 head against the concrete. See ECF No. 69 ¶ 12. Ms. Scalia was transported to the infirmary by

8 wheelchair because she was unable to walk on her own, which Nurse Blakely observed. See id. ¶¶ 13,

9 15. But Nurse Blakely’s first examination lasted several minutes at most, and Nurse Blakely did not

10 perform a formal neurological assessment, did not ask Ms. Scalia why she was in a wheelchair, did not

11 ask Ms. Scalia whether she had been unconscious, did not ask Ms. Scalia to attempt to walk without

12 assistance, did not keep Ms. Scalia in the infirmary for observation, and did not call a physician at any

13 time. See ECF No. 69 ¶¶ 17, 20; ECF No. 73-1 ¶¶ 113, 130-31, 133-34, 139. Even after the second

14 examination when Ms. Scalia’s symptoms were far more severe, Nurse Blakely did not call a physician,

15 and her referral to the hospital did not state Ms. Scalia had hit her head, that Ms. Scalia could not walk

16 during the initial exam, nor that Ms. Scalia was unconscious and non-responsive during the second

17 exam. See ECF No. 69 ¶ 36; ECF No. 73-1 ¶¶ 127-28, 130, 135-39. It is undisputed that Nurse Blakely

18 failed to take these reasonable, available measures to abate the risk of serious harm, and there is a

19 genuine dispute of material fact whether a reasonable nurse would have appreciated the high degree of

20 risk involved, making the consequences of such conduct obvious. See also ECF No. 73-1 ¶¶ 147-53.

21 There is enough evidence for the jury to decide that a reasonable nurse would have responded with more

22 urgency and more careful testing of Ms. Scalia’s condition given the obviously high risk of severe

23 consequences from a possible traumatic head injury, and that Nurse Blakely’s actions were objectively

24 unreasonable and reckless.

25 Finally, as mentioned, there is a genuine dispute as to whether earlier detection and treatment 2 take additional measures caused Ms. Scalia’s injuries. See ECF No. 69 ¶¶ 44, 84; ECF No. 73-1 ¶¶ 113,

3 130-39, 147-53.

4 Thus, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find

5 that Nurse Blakely was deliberately indifferent to Ms. Scalia’s serious medical need. Moreover, this

6 right was clearly established at the time of the incident such that a reasonable nurse would have

7 understood her conduct to be unlawful in that situation. See, e.g., Ortiz v. City of Imperial, 884 F.2d

8 1312, 1314 (9th Cir. 1989) (“Because the nurses and Dr. Reid knew of Ortiz’s head injury but

9 disregarded evidence of complications to which they had been specifically alerted and, without an

10 examination, prescribed sedatives that were contraindicated, we cannot say as a matter of law they were

11 not deliberately indifferent to Ortiz’s medical needs.”); Clement v. Gomez, 298 F.3d 898, 906 (9th Cir.

12 2002) (“[I]t is “clearly established that the officers [may] not intentionally deny or delay access to

13 medical care” to pretrial detainees.”); McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992), overruled on

14 other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Defendants are not

15 entitled to qualified immunity at this time.

16 B. Monell Claim

17 Defendant argues that the Monell claim against KCHA should be dismissed because there is no

18 evidence of a KCHA custom, practice, or policy, that caused Ms. Scalia’s injuries. A municipality

19 cannot be held liable under § 1983 for the actions of its employees under the theory of respondeat

20 superior. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978); Velazquez v. City of Long

21 Beach, 793 F.3d 1010, 1027 (9th Cir. 2015). A municipality can only be held liable for injuries caused

22 by the execution of its policy or custom whether made “by its lawmakers or those whose edicts or acts

23 may fairly be said to represent official policy.” Monell, 436 U.S. at 694. Municipal liability under

24 Monell may be premised on: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a

25 longstanding practice or custom which constitutes the “standard operating procedure” of the local 2 policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of

3 decision; or (4) an official with final policymaking authority either delegated that authority to, or ratified

4 the decision of, a subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014);

5 Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). “A policy can be one of action or inaction,” Long v.

6 County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006), and can be formal or informal. See City of

7 St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988).

8 A longstanding practice or custom is one that is so “persistent and widespread” that it constitutes

9 a “permanent and well settled” governmental policy. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996).

10 “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be

11 founded upon practices of sufficient duration, frequency and consistency that the conduct has become a

12 traditional method of carrying out policy.” Id. The line between “isolated or sporadic incidents” and

13 “persistent and widespread conduct” is not clearly delineated, although where more than a few incidents

14 are alleged, the determination appears to require a fully-developed factual record. Compare Davis v.

15 City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989) (single incident of excessive force

16 inadequate to establish liability), Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988)

17 (two incidents insufficient), with Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (triable

18 issue of fact existed as to whether Seattle had an unconstitutional policy or custom of suppressing

19 certain political speech based on the testimony of several individuals that their entry to a particular area

20 was permitted by police only after they removed offending buttons and stickers, coupled with the

21 testimony of the officer in charge that the City would not permit “demonstrations” in the area); see also

22 Jarbo v. County of Orange, 2010 WL 3584440, *9-*13 (C.D. Cal. Aug. 30, 2010) (reviewing

23 circumstances in which Monell custom/practice claims were permitted past summary judgment).

24 Thus, generally, a plaintiff must show the following: (1) the plaintiff was deprived of a

25 constitutional right; (2) the defendant had a policy or custom; (3) the policy or custom amounted to 2 force behind the constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.

3 2011) (internal quotation marks and citations omitted); Mabe v. San Bernardino County, 237 F.3d 1101,

4 1110-11 (9th Cir. 2001). The standard for deliberate indifference for a governmental entity is an

5 objective one. See Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016).

6 It is undisputed that, during the events leading to Ms. Scalia’s death, the County of Kern

7 employed the infirmary nursing staff. ECF No. 69 ¶¶ 2-3, 9. Ms. Scalia died at 12:05 a.m. on July 1,

8 2016. ECF No. 69 ¶ 46. KCHA did not take over the infirmary and become the employer of the nursing

9 staff until July 1, 2016. ECF No. 69 ¶ 9. Simply put, a custom, policy, or practice of KCHA could not

10 have been the “moving force” behind Plaintiff’s injury when KCHA was not the employer or supervisor

11 of Nurse Blakely on June 27-28, 2016, the dates when the relevant acts and omissions culminated in Ms.

12 Scalia’s death. Plaintiff argues that KCHA’s failure to follow its required procedures to investigate Ms.

13 Scalia’s death is sufficient to bring this claim to trial, or that at the very least the failure demonstrates

14 implicit ratification of Nurse Blakely’s actions. However, Plaintiff does not show how these failures to

15 follow policy caused or contributed to Ms. Scalia’s constitutional deprivation, and it remains unclear

16 how KCHA could “ratify” Nurse Blakely’s actions prior to KCHA becoming her employer. The only

17 policies, practices, or customs that appear relevant to Ms. Scalia’s death are those of the County of Kern.

18 Plaintiff does not tie the KCHA policies to the those of the County of Kern. Plaintiff’s cases cited for

19 the proposition that post-event evidence is relevant to whether a policy or ratification existed at the time

20 of injury are distinguishable because in those cases the post-event evidence related to defendants who

21 were responsible at the time of the injury. See McRorie v. Shimoda, 795 F.2d 780, 782, 784 (9th Cir.

22 1986) (prison officials who failed to reprimand guards post-event were responsible for supervision at

23 time of injury); Henry v. County of Shasta, 132 F.3d 512, 518-21 (9th Cir. 1997), opinion amended on

24 denial of reh’g, 137 F.3d 1372 (9th Cir. 1998) (post-event evidence related to municipal defendant who

25 was responsible at time of injury). 2 ratification were a moving force behind Ms. Scalia’s injury and summary judgment as to Plaintiff’s

3 Second Cause of Action for Monell § 1983 liability will be GRANTED as to KCHA.

4 C. Bane Act Violation

5 Plaintiff’s Third Cause of Action arises under California Civil Code § 52.1 (the “Bane Act”).

6 The Bane Act authorizes individual civil actions for damages and injunctive relief by individuals whose

7 federal or state rights have been interfered with by threats, intimidation, or coercion. See Cal. Civ. Code

8 § 52.1(a) (proscribing interference “by threats, intimidation, or coercion, or attempts to interfere by

9 threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of

10 rights secured by the Constitution or laws of the United States, or of the rights secured by the

11 Constitution or laws of this state . . .”); see also Jones v. Kmart Corp., 17 Cal. 4th 329, 338 (1998)

12 (interpreting the Bane Act’s use of “interferes” to mean “violates”). “The essence of a Bane Act claim

13 is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to

14 or did prevent the plaintiff from doing something he or she had the right to do under the law or to force

15 the plaintiff to do something that he or she was not required to do under the law.” Austin B. v.

16 Escondido Union School Dist., 149 Cal. App. 4th 860, 883 (2007); see also Doe v. State, 8 Cal. App. 5th

17 832, 842, (2017), review denied (June 14, 2017) (“To prevail on a cause of action under Civil Code

18 section 52.1, the plaintiff must show that the defendant interfered with or attempted to interfere with the

19 plaintiff’s legal right by threatening or committing violent acts.”). A plaintiff bringing a claim pursuant

20 to the Bane Act “must show (1) intentional interference or attempted interference with a state or federal

21 constitutional or legal right, and (2) the interference or attempted interference was by threats,

22 intimidation or coercion.” Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67 (2015), as modified on

23 denial of reh’g (Mar. 6, 2015).

24 As discussed in the Court’s Order on the motion to dismiss, “[t]he Bane Act’s requirement that

25 interference with rights must be accomplished by threats, intimidation or coercion has been the source of 2 (2017), as modified (Nov. 17, 2017), review denied (Feb. 28, 2018) (alterations and quotation marks

3 omitted). The Cornell court ultimately concluded that “the egregiousness required by Section 52.1 is

4 tested by whether the circumstances indicate the arresting officer had a specific intent to violate the

5 arrestee’s right to freedom from unreasonable seizure, not by whether the evidence shows something

6 beyond the coercion ‘inherent’ in the wrongful detention.” Id. at 801-02. Cornell explained that the test

7 essentially sets forth two requirements for a finding of “specific intent” . . . . The first is a purely legal determination. Is the . . . right at issue clearly delineated and plainly applicable

8 under the circumstances of the case? If the trial judge concludes that it is, then the jury must make the second, factual, determination. Did the defendant commit the act in

9 question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that . . . right? If both requirements are met, even if the defendant

10 did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a matter of law to have acted [with the requisite specific intent]—i.e.,“in reckless disregard of

11 constitutional [or statutory] prohibitions or guarantees.” 12 Id. at 803 (internal citations and quotation marks omitted); see also Reese v. County of Sacramento, 888 13 F.3d 1030, 1043 (9th Cir. 2018) (adopting Cornell’s specific intent standard). 14 Applying the intent test laid out in Cornell, the Court finds that summary judgment is not 15 appropriate as to Plaintiff’s Bane Act Claim. First, the right at issue, a pretrial detainee’s right to be free 16 from deliberate indifference to serious medical needs, is “clearly delineated and plainly applicable” to 17 the circumstances. Cornell, 17 Cal. App. 5th at 803. Second, as found above, there is at least a genuine 18 dispute of material fact as to whether Nurse Blakely acted with deliberate indifference to Ms. Scalia’s 19 medical needs. Thus, similarly, there is a genuine dispute of material fact as to whether Nurse Blakely 20 acted with reckless disregard for Ms. Scalia’s rights which is all that is necessary to demonstrate specific 21 intent under the Bane Act. Therefore, Defendants’ request for summary judgment as to the Bane Act 22 claim is DENIED. 23 D. Punitive Damages 24 Defendants seek summary judgment of Plaintiff’s prayer for relief for punitive damages. It is 25 “well-establish ed that that a ‘jury may award punitive damages under section 1983 either when a 2 indifference to the constitutional rights of others.’” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005)

3 (quoting Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993)). “The standard for punitive

4 damages under § 1983 mirrors the standard for punitive damages under common law tort cases,” and

5 “malicious, wanton, or oppressive acts or omissions are within the boundaries of traditional tort

6 standards for assessing punitive damages.” Id. (citing Smith v. Wade, 461 U.S. 30, 34 (1983)).

7 Here, as discussed above, viewing the evidence in the light most favorable to Plaintiff, a

8 reasonable jury could find that Defendants were deliberately indifferent to Plaintiff’s constitutional

9 rights, which requires a showing of “something akin to reckless disregard,” Castro, 833 F.3d at 1071,

10 and the standard for the availability of punitive damages in a § 1983 action includes “when the

11 defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or

12 callous indifference to the federally protected rights of others,” Dang, 422 F.3d at 807 (emphasis

13 added). Therefore, summary judgment is DENIED as to Plaintiff’s punitive damages claim.

14 E. Unopposed Arguments

15 Finally, Defendants make a number of arguments for summary judgment which Plaintiff

16 explicitly states he does not oppose, or which Plaintiff fails to substantively oppose in his brief.

17 First, Defendants argue the Court dismissed the Fourth Cause of Action pursuant to Cal. Gov.

18 Code § 845.6 as to both KCHA and Nurse Blakely in its ruling on Defendants’ motion to dismiss, and

19 Plaintiff did not amend this cause of action. ECF No. 69 ¶ 5. Defendants point to language in the

20 Court’s order granting dismissal for “Defendants[]” as ambiguous as to whether this included dismissal

21 for KCHA, see ECF No. 67 at 28-29, ECF No. 28 at 27, and Defendants note that Plaintiff has not

22 signed a stipulation that the Fourth Cause of Action is dismissed. Nevertheless, Plaintiff appears to

23 concede that, if the claim was not dismissed, summary adjudication would be appropriate. See ECF No.

24 72 at 2, 31. Thus, the parties do not dispute that the Court dismissed the Fourth Cause of Action against

25 KCHA, the Court agrees the Fourth Cause of Action was dismissed as to KCHA in the April 10, 2018 2 Second, Defendants argue that KCHA is entitled to Cal. Gov Code §§ 844.6 and 845.6 immunity

3 as to the Third, Fourth, and Sixth Causes of Action. Plaintiff’s opposition concedes that § 844.6

4 immunity is appropriate, stating that “defendants’ Motion for Summary Adjudication should be denied

5 in its entirety, except as to KCHA’s immunity under Gov. Code § 844.6.” ECF No. 72 at 2, 31 (emphasis

6 added). Therefore, summary judgment will be granted as to KCHA on the Third and Sixth Causes of

7 action (as the Court has determined the Fourth Cause of Action was previously dismissed).

8 Third, Defendants argue that John Scalia cannot bring the First through Fifth Causes of Action in

9 his individual capacity because he is not the pre-trial detainee whose rights are at issue, and he may only

10 bring them as a successor-in-interest. See ECF No. 69 ¶ 88. Plaintiff does not dispute this argument.

11 Therefore, the Court will grant summary judgment in favor of Defendants on Mr. Scalia’s Causes of

12 Action One, Two, Three, Four, and Five brought in his individual capacity. These Causes of Action

13 survive to the extent they are brought in Mr. Scalia’s capacity as Ms. Scalia’s successor-in-interest.

14 Therefore, summary judgment is GRANTED for KCHA as to the Third and Fifth Causes of

15 Action. Summary judgment is GRANTED for all Defendants as to the First, Second, Third, Fourth, and

16 Fifth Causes of Action brought by Mr. Scalia in his individual capacity only.

17 V. CONCLUSION AND ORDER

18 For the reasons stated above, Defendants’ summary judgment is GRANTED in part and

19 OTHERWISE DENIED.

20

21 IT IS SO ORDERED.

22 Dated: September 6, 2019 /s/ Lawrence J. O’Neill _____

UNITED STATES CHIEF DISTRICT JUDGE

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