Opinion

Alejandre v. County of San Joaquin

Court
District Court, E.D. California
Filed
Apr 20, 2021
Cited by
0 cases
Authority
More cited than 17.6%

The opinion

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5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF CALIFORNIA

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8

9 CINDY M. ALEJANDRE; and DAVID No. 2:19-cv-00233-WBS-KJN

GONZALEZ II as Co-Successors-in-

10 Interest to Decedent David

Gonzalez III,

11 MEMORANDUM AND ORDER RE:

Plaintiffs, DEFENDANTS’ MOTION FOR

12 SUMMARY JUDGMENT AND MOTION

v. TO SEAL

13

COUNTY OF SAN JOAQUIN, a

14 municipal corporation; STEVEN

BAXTER, individually and in his

15 capacity as a Sheriff’s deputy

for the County of San Joaquin

16 Sherriff’s Department; MATTHEW

FELBER, individually and in his

17 capacity as a Sheriff’s deputy

for the County of San Joaquin

18 Sheriff’s Department; CHUE VANG,

individually and in his capacity

19 as a Sheriff’s deputy for the

County of San Joaquin Sherriff’s

20 Department; JASON ROHDENBURG,

individually and in his capacity

21 as a Sheriff’s deputy for the

County of San Joaquin Sheriff’s

22 Department; BARBARA GOEMAN and

DOES 1-25, inclusive,

23 individually and in their

official capacity as Sheriff’s

24 Deputies for the County of San

Joaquin Sheriff’s Department,

25

Defendants.

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1 Plaintiffs Cindy Alejandre and David Gonzalez II

2 (“plaintiffs”) brought this action as successors-in-interest to

3 their son, decedent David Gonzalez III (“Gonzalez”), against the

4 County of San Joaquin (“County”); San Joaquin County Sheriff’s

5 Deputies Steven Baxter, Matthew Felber, Chue Vang, and Jason

6 Rohdenburg; and Nurse Barbara Goeman, seeking damages under 42

7 U.S.C. § 1983 for denial of medical care and failure to summon

8 medical care, violation of plaintiffs’ Fourteenth Amendment

9 rights to a familial relationship with Gonzalez, and excessive

10 force, in addition to state law claims of failure to summon

11 medical care, wrongful death--negligence, violation of the Tom

12 Bane Civil Rights Act, battery, and intentional infliction of

13 emotional distress. (See generally Third Am. Compl. (“TAC”)

14 (Docket No. 37).)

15 Before the court are defendants’ Motion for Summary

16 Judgment (Defs.’ Mot. for Summ. J.) (Docket No. 66-1.), and

17 defendants’ Motion to Seal Exhibit 19 to their Compendium of

18 Evidence. (Defs.’ Mot. to Seal)(Docket No. 67.)

19 I. Factual and Procedural Background

20 Decedent David Gonzalez III (“Gonzalez”) was arrested

21 and taken into custody at the San Joaquin County Jail (“Jail”) on

22 June 22, 2018. (See Defs.’ Statement of Undisputed Facts

23 (“Defs.’ SUF”) No. 1, Docket No. 66-3).) Deputy Jason Rohdenburg

24 was assigned to the Jail’s Classification Unit on that date and

25 conducted Gonzalez’s classification interview, which included a

26 diagnostic process of identifying Gonzalez’s physical, emotional,

27 and security needs for his detainment. (See id. at Nos. 1–2.)

28 During the classification interview, Gonzalez indicated to Deputy

1 Rohdenburg that he was withdrawing from opiates. (See id. at No.

2 3.) Deputy Rohdenburg notified Jail medical personnel that

3 Gonzalez was withdrawing from opiates, and Gonzalez was medically

4 evaluated by defendant Nurse Barbara Goeman. (See id. at No. 4.)

5 During Nurse Goeman’s intake medical examination,

6 Gonzalez reported that he was a regular heroin user and was

7 experiencing withdrawal symptoms. (See id. at No. 17.)

8 Gonzalez’s vital signs were normal, and his physical examination

9 revealed piloerection (goose bumps), tremors, and rhinorrhea

10 (runny nose). (See id.) Gonzalez reported experiencing anxiety,

11 nausea, yawning, diarrhea, insomnia, arthralgia (joint pain),

12 chills, and cramping. (See Decl. of DeWitt Lacy in Opp’n to Mot.

13 for Summ. J. at Ex. B (“Lacy Decl.”) (Docket No. 70-4).)

14 Gonzalez was speaking normally and had a steady gait. (See

15 Defs.’ SUF at No. 17.)

16 Nurse Goeman made diagnoses of heroin abuse and

17 withdrawal and started Gonzalez on the Jail’s Opiate Withdrawal

18 Protocol, which included provision of Phenergan (promethazine),

19 Vistaril (hydroxyzine), Donnatal, Benadryl (dipenhydramine),

20 Gatorade, and monitoring. (See id.) At no time during Gonzalez’s

21 intake evaluation did he report any heart abnormalities or

22 unusual medical conditions, aside from his withdrawal from

23 heroin. (See id.) Nurse Goeman then medically cleared Gonzalez

24 for incarceration. (See id. at No. 4.) Gonzalez was placed in

25 “general population” housing, and not in the Jail’s medical

26 housing, because Nurse Goeman determined he was “hemodynamically

27 stable and not in acute withdrawal” requiring continuous nursing

28 and medical care. (See id. at No. 21.)

1 On June 25, 2018, Gonzalez was seen by another nurse

2 because he reported that he had been vomiting since the day

3 before and was unable to keep down food. (See Lacy Decl. at Ex.

4 NN.) He was given an injection of Phernergan to resolve his

5 vomiting symptoms. (See Defs.’ SUF at No. 22.) At approximately

6 midnight on June 26, 2018, Gonzalez pressed his cell’s medical

7 emergency call button and Deputy Chue Vang responded. (See id.

8 at No. 9.) Gonzalez told Deputy Vang that he was in pain and

9 going through withdrawal. (See id. at No. 10.) Deputy Vang

10 called Nurse Goeman and escorted Gonzalez from his cell to the

11 medical examination room where Nurse Goeman evaluated him. (See

12 id. at No. 11.) Gonzalez was alert, oriented, able to

13 communicate his needs and concerns, and had a strong and steady

14 gait. (See id. at No. 24.) He reported that he was “eating ok.”

15 (See id.) Gonzalez complained of hand cramping and was given

16 Motrin. (See Lacy Decl. at Ex. NN.) Nurse Goeman cleared

17 Gonzalez to remain in his general population housing unit and

18 noted that he did not want to be on bed rest and wanted to go to

19 his court appearance. (See Mot. for Summ. J. at Ex. 5.)

20 Defendant Deputy Steven Baxter supervised the process

21 of pulling inmates out of their cells to attend their court dates

22 and the transportation of inmates from the Jail to the Stockton

23 Superior Court (“Court”) on the morning of June 26, 2018. (See

24 Defs.’ SUF at No. 28.) Deputy Baxter observed Deputies Carlos

25 Prieto and Jose Hernandez transporting a group of inmates,

26 including Gonzalez, to the transportation lobby for their court

27

28

1 appearances. (See id. at No. 29.)1 Deputy Baxter approached and

2 spoke with Gonzalez who told him that his shoulder and stomach

3 hurt. (See id. at No. 31.)2

4 Based on Deputy Baxter’s observations of Gonzalez and

5 his conversation with Gonzalez, he believed that Gonzalez was

6 “kicking some sort of narcotic”, and resisting going to court for

7 his hearing. (See id. at No. 35.) Deputy Baxter consulted Jail

8 management software and saw that Nurse Goeman had cleared

9 Gonzalez for his scheduled court appearance less than 12 hours

10 earlier. (See id. at No. 36.) Deputy Baxter, along with Deputy

11 Khankhoune Kannalikham, escorted Gonzalez to the transportation

12 bus to head to court. (See id. at No. 37.)

13 Defendants contend that Gonzalez was able to walk under

14 his own power but, because he was resisting going to the bus, he

15

1 Defendants contend that Gonzalez left his housing unit

16 without incident but stopped cooperating and began resisting and

generally behaving as if he did not want to go to court as he

17

approached the transportation lobby, and was then separated from

18 the group of inmates. (See Defs.’ SUF at No. 30.) Plaintiffs

contend that Deputy Baxter was aware that Gonzalez did not feel

19 well and that he had to be taken to the transportation lobby by

Deputies Prieto and Hernandez because he was unable to walk on

20 his own. (See Pls.’ Resp. to Defs.’ SUF at No. 30.) (Docket No.

70-1.)

21

22 2 Defendants contend that Gonzalez did not communicate to

Deputy Baxter that he was sick, having a medical emergency, or

23 that he wanted to go to the hospital. (See Defs.’ SUF at No.

32.) Plaintiffs contend that Gonzalez communicated told Deputy

24 Baxter that his stomach and shoulder hurt and that he was in too

much pain to go to court. (See Pls.’ Resp. to Defs.’ SUF at No.

25

32.) They also state that Gonzalez asked to see a nurse and that

no nurse was summoned. (See Lacy Decl. at Ex. L.) Witnesses

26

stated that Gonzalez was moaning in pain and complaining that he

27 did not feel well, needed help, and was dying. (See Pl.’s Resp.

to Defs.’ SUF at Nos. 32, 35.)

28

1 was escorted by Deputy Baxter and Deputy Kannalikham. (See

2 Defs.’ SUF at No. 39.) When they reached the bus stairwell,

3 Gonzalez “grabbed a hold of the door, and began pulling himself

4 away [from the bus] to try and turn past [the deputies] and get

5 past [them]”, but ultimately entered the bus under his own power.

6 (See id. at No. 39.)3

7 After escorting Gonzalez to the bus, Deputy Baxter

8 called the Court’s control room and spoke with defendant Deputy

9 Matthew Felber, a bailiff at the Courthouse. (See id. at Nos.

10 41, 44.) Deputy Baxter told Deputy Felber that Gonzalez was

11 having some medical problems. (See Mot. for Summ. J. at Ex. 20,

12 Dep. Tr. of Matthew Felber at 20:21–21:2.) Deputy Baxter asked

13 Deputy Felber to “relay a message to Courthouse Sergeant Jason

14 Wheelen that [Deputy Baxter] had one inmate who was

15 uncooperative, and that [Deputy Felber] needed to make sure he

16 had additional deputies [at the Courthouse] ready when the bus

17 arrive[d].” (See Defs.’ SUF at No. 41.)4

18 Deputy Phillip Hicks was the bus monitor on the

19

3 Plaintiffs state that Deputy Baxter and Deputy

20 Kannalikham carried Gonzalez to the bus. (See Pls.’ Resp. to

Defs.’ SUF at No. 39.)

21

22 4 Plaintiffs contend that Deputy Baxter advised Deputy

Felber that Gonzalez was displaying bizarre or erratic behavior

23 and screaming about wanting to go to the hospital. (See Pls.’

Resp. to Defs.’ SUF at No. 41.) Deputy Baxter also relayed that

24 he and the other deputies had to carry Gonzalez onto the bus.

(See id.) Deputy Felber told Deputy Baxter that “if this inmate

25

is acting that way, we don’t want him.” (See Lacy Decl. at Ex.

T.) Deputy Baxter told Deputy Felber that Gonzalez was already

26

on his way, and if Sergeant Wheelen refused him when he arrived

27 to court, then the bus driver would just bring Gonzalez back.

(See id.)

28

1 transport bus that took Gonzalez to court. (See Pls.’ Resp. to

2 Defs.’ SUF at No. 46.)5 Five minutes after departing the main

3 section of the Jail, the bus arrived at the south section of the

4 Jail to load more inmates. (See Defs.’ SUF at No. 64.) By this

5 time, Gonzalez was on the floor of the bus, resting against the

6 side wall. (See id.)6 After loading the inmates from the south

7 section of the Jail, the bus drove to the Courthouse, a trip of

8 about 25 minutes. (See id. at No. 65.)

9 At approximately 12:11 P.M., the bus transporting

10 Gonzalez from the Jail to the Courthouse entered the court’s

11 “sally port” -- a small garage where buses can come and go from

12 the Court -- and parked.7 (See id. at No. 45.) Deputy Felber

13

5 Defendants contend that Gonzalez was able to walk to

14 his own seat on the bus, although his arm was held by Deputy

Hicks. (See Defs.’ SUF at No. 62.) Plaintiffs dispute that

15 Gonzalez could walk on his own and contend that he was stumbling

and falling while walking down the aisle. (See Pls.’ Resp. to

16 Defs.’ SUF at No. 62.)

17

6 Plaintiffs contend that Gonzalez was not able to sit up

18 under his own power and slid off his seat into the aisle, hitting

his head with a loud thump. (See Pls.’ Resp. to Defs.’ SUF at

19 No. 64.) Defendants state that Gonzalez was able to stand and

return to his own seat at Deputy Hicks’ request after he was

20 found on the bus floor, (see Defs.’ SUF at No. 64), while

plaintiffs contend that Deputy Hicks forcibly picked up Gonzalez

21

and placed him back in the seat. (See Pls.’ Resp. to Defs.’ SUF

22 at No. 64.)

23 7 Plaintiffs contend that while on route to the

courthouse, Deputy Hicks, the bus monitor, heard a loud thump as

24 Gonzalez fell to the floor. (See Pls.’ Statement of Additional

Material Facts at No. 39 (“PAMF”) (Docket No. 70-2).) While on

25

the freeway during transportation, Gonzalez repeatedly fell off

his seat on the bus into the middle aisle and hit his head. (See

26

id.) After falling and smacking his head for the third time,

27 Gonzalez did not rise from the bus floor and convulsed and seized

until he suddenly stopped moving and fell silent. (See Pls.’

28

1 was in the Court’s Control Room when the bus arrived. (See id.

2 at No. 51.) He was given notice that Gonzalez was nonresponsive

3 on the bus at around 12:16 P.M. (See id. at No. 52.) Upon

4 receiving notice, he immediately ran to the sally port. (See id.

5 at No. 53.) From approximately 12:16 P.M. to 12:18 P.M.,

6 emergency medical equipment was brought into the sally port and

7 prepped for use on Gonzalez. (See id. at No. 48.) At

8 approximately 12:18 P.M., Gonzalez was taken off the bus by law

9 enforcement personnel and Deputy Felber began performing chest

10 compressions on Gonzalez. (See id. at No. 49.) He continued to

11 perform chest compressions on Gonzalez until an ambulance with

12 emergency medical personnel arrived at the sally port at

13 approximately 12:22 P.M. (See id. at No. 50.)

14 Based on an autopsy conducted by pathologist Dr. Bennet

15 Omalu, Gonzalez suffered from a rare genetic condition associated

16 with sudden cardiac arrest. (See id. at No. 77.) Gonzalez never

17 disclosed to the Jail’s correctional or medical staff that he had

18 any cardiac disease or abnormality. (See id. at No. 79.) Some

19 of the medications given to Gonzalez while in Jail to alleviate

20 his withdrawal symptoms, which are part of the Jail’s opiate

21 withdrawal protocol, have also been linked to cardiac arrythmias.

22 (See id. at No. 80.) However, not knowing of Gonzalez’s cardiac

23 condition, the Jail’s medical staff had no reason not to

24 administer the usual protocol medications to Gonzalez. (See id.)

25 II. Motion to Seal

26

inmates on the bus informed Deputy Vince Chunn, the bus driver,

27 and Deputy Hicks that Gonzalez was nonresponsive approximately

ten minutes before the bus arrived at the sally port. (See id.

28

1 Defendants request that the court seal Exhibit 19 to

2 their Compendium of Evidence, which consists of video footage of

3 the transport bus arriving from Jail in the sally port of the San

4 Joaquin County Superior Court on June 26, 2018. (See Defs.’ Req.

5 to Seal (Docket No. 67).)

6 A party seeking to seal a judicial record bears the

7 burden of overcoming a strong presumption in favor of public

8 access. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172,

9 1178 (9th Cir. 2006). The party must “articulate compelling

10 reasons supported by specific factual findings that outweigh the

11 general history of access and the public policies favoring

12 disclosure, such as the public interest in understanding the

13 judicial process.” Id. at 1178-79 (citation omitted). In ruling

14 on a motion to seal, the court must balance the competing

15 interests of the public and the party seeking to keep records

16 secret. Id. at 1179.

17 Defendants argue that the video should be sealed for

18 reasons of jail and courthouse security, as “the video shows a

19 critical location pertaining to secure inmate transport to court

20 at the San Joaquin County Superior Court.” (Defs.’ Req. to Seal

21 at 2.) Defendants state that “[i]t has long been recognized that

22 jail security is a very important interest in running a jail.”

23 Id. (citing Pell v. Procunier, 417 U.S. 817, 823 (1974)).

24 However, the video plainly shows footage of the San Joaquin

25 County Superior Court’s sally port, not the jail. The footage

26 does not reveal which portion of the courthouse the sally port is

27 located in, or from which street one can gain access to the sally

28 port. Besides vague and conclusory assertions that allowing

1 footage contained in the video to become public would “compromise

2 jail and courthouse security,” defendants do not articulate any

3 specific reasons why footage of the inside of the sally port

4 would compromise security. The court therefore finds that

5 interests in jail and courthouse security do not outweigh the

6 public’s interest in disclosure of the video. See Kamakana, 447

7 F.3d at 1178.

8 Defendants further argue that they have an interest in

9 preventing disclosure of the video based on “law enforcement

10 privilege.” Defendants point out that “[c]ourts have long

11 recognized the ‘law enforcement privilege as an interest worthy

12 of protection,’ and one designed to ‘prevent the disclosure of

13 law enforcement techniques and procedures . . . .’” (Def.’s Req.

14 to Seal at 3 (quoting United States v. Amodeo, 44 F.3d 141, 147

15 (2d Cir. 1995)). While defendants characterize the video as one

16 depicting “law enforcement techniques,” a more accurate

17 description would be that the video shows a bus arriving,

18 followed by a group of assembled police officers transporting a

19 limp body from the bus to the ground and then performing

20 lifesaving techniques until paramedics arrive. If anything,

21 these are medical or first-response techniques, not “law

22 enforcement techniques.” The court therefore finds that law

23 enforcement privilege does not dictate sealing the video. See

24 Kamakana, 447 F.3d at 1178.

25 Accordingly, the court will deny defendants’ request to

26 seal Exhibit 19 to their Compendium of Evidence.

27 III. Evidentiary Objections

28 The court will next address defendants’ extensive

1 evidentiary objections to plaintiffs’ Statement of Additional

2 Material Facts. (See Defs.’ Objections to Pls.’ Evid. in Opp’n

3 to Mot. for Summ. J. (“Defs.’ Objections”) (Docket No. 73-4).)

4 A. Unsworn Witness Testimony and Interviews

5 As defendants note, the vast majority of the evidence

6 relied on by plaintiffs in their opposition derives from the

7 County’s In-Custody Death Protocol Investigation. (See id. at

8 3.) Following Gonzalez’s death, this protocol investigation was

9 initiated. (See id.) As part of this investigation, the County

10 Sheriff’s Office conducted 74 interviews of witnesses and other

11 Jail/law enforcement personnel, most of which were summarized by

12 the investigating detectives in the form of “Incident Reports.”

13 (See id.) Defendants challenge plaintiffs’ reliance on these

14 witness interviews and summaries on multiple grounds.

15 Defendants first argue that the unsworn witness

16 statements and summaries are inadmissible and cannot be

17 considered in a motion for summary judgment because they do not

18 comply with Federal Rule of Civil Procedure 56(c)(1)(A). (See

19 id. at 4). This rule provides that a party asserting that a fact

20 cannot be or is genuinely disputed must support the assertion by

21 “citing to particular parts of materials in the record, including

22 depositions, documents. . . affidavits or declarations. . .

23 admissions, interrogatory or other materials. . .” Fed. R. Civ.

24 P. 56(c)(1)(A). Defendants cite to two opinions of magistrate

25 judges in this district in support of their proposition, but no

26 binding authority. See Sanchez v. Penner, No. CIV S-07-0542 MCE

27 EFB P, 2009 WL 3088331, at *4 (E.D. Cal. Sep. 22, 2009); Johnson

28 v. Sandy, No. 2:12-cv-02992 JAM AC P, 2015 WL 1894400, * 1 (E.D.

1 Cal. Apr. 24, 2015).

2 Defendants are correct that, generally speaking,

3 evidence presented in the context of a motion for summary

4 judgment must be admissible. See Fraser v. Goodale, 342 F.3d

5 1032, 1036 (9th Cir. 2003). But a party opposing a motion for

6 summary judgment seeks a trial, not a verdict, and it stands to

7 reason that if evidence may probably be converted to admissible

8 form for trial, it should not be excluded at summary judgment.

9 See Gonzalez v. Cnty. of Yolo, No: 2-13-cv-01368-KJM-AC, 2015 WL

10 4419025, * 4 (E.D. Cal. Jul. 17, 2015). At the hearing on this

11 motion, plaintiffs stated that the disputed evidence relied upon

12 will be converted to an admissible form at trial. Accordingly,

13 the court will overrule this objection.

14 Defendants next contend that these witness statements

15 and interview summaries are hearsay. (See Defs.’ Objections at

16 5.) However, “[a]t the summary judgment stage, we do not focus

17 on the admissibility of the evidence’s form” but on the

18 admissibility of its contents. See Fraser, 342 F.3d at 1036. If

19 the contents of a document can be presented in a form that would

20 be admissible at trial, for example, through live testimony by

21 the person who was interviewed or who made the statement, the

22 mere fact that the document itself might be excludable hearsay

23 provides no basis for refusing to consider it on summary

24 judgment. See id. at 1036–37. Accordingly, the court overrules

25 defendants’ hearsay objections.

26 Defendants next argue that the interview summaries and

27 unsworn witness statements are inadmissible because plaintiffs

28 have failed to lay the proper foundation. (See Defs.’ Objections

1 at 6). However, the Ninth Circuit has long held that “an

2 objection to admission of evidence on foundational grounds must

3 give the basis for the objection in a timely way to permit the

4 possibility of cure.” Jerden v. Amstutz, 430 F.3d 1231, 1237

5 (9th Cir. 2005). Defendants’ conclusory statement that these

6 documents lack foundation, without providing any explanation as

7 to how the documents lack foundation, falls well short of

8 providing plaintiffs with notice of the specific ground of

9 objection, and consequently, what could be done to cure any

10 defects. See Sandoval v. Cnty. of San Diego, 985 F.3d 657, 666-

11 67 (9th Cir. 2021). Accordingly, these objections provide no

12 basis for excluding the evidence. See id.

13 B. Improper Legal Conclusions, Speculation, and Opinions

14 Defendants also contend that plaintiffs speculate, make

15 improper legal conclusions, and assert opinions disguised as

16 “facts” in their Statement of Additional Material Facts. (See

17 Defs.’ Objections at 6.) “[O]bjections to evidence on the ground

18 that it is irrelevant, speculative . . . or that it constitutes

19 an improper legal conclusion are all duplicative of the summary

20 judgment standard itself.” Burch v. Regents of University of

21 California, 433 F.Supp.3d 1110, 1119 (E.D. Cal. 2006). Because

22 statements based on speculation or improper legal conclusions are

23 not facts, and will not be considered by the court on a motion

24 for summary judgment anyway, the court overrules these objections

25 because they are “simply superfluous in this context.” See id.

26 C. Facts Not Supported by Evidence and Relevance

27 Defendants finally argue that the court should not

28 consider plaintiffs’ additional material facts because they are

1 not supported by the evidence. (See Defs.’ Objections at 6-7.)

2 This objection is similarly superfluous and is thus overruled for

3 the same reason -- to the extent that plaintiffs’ statements of

4 material fact are unsupported by the evidence, they do not

5 constitute material facts and therefore cannot be used to defeat

6 a motion for summary judgment.

7 IV. Motion for Summary Judgment8

8 Summary judgment is proper “if the movant shows that

9 there is no genuine dispute as to any material fact and the

10 movant is entitled to judgment as a matter of law.” Fed. R. Civ.

11 P. 56(a). The party moving for summary judgment bears the

12 initial burden of establishing the absence of a genuine issue of

13 material fact and can satisfy this burden by presenting evidence

14 that negates an essential element of the non-moving party’s case.

15 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

16 Alternatively, the movant can demonstrate that the non-moving

17 party cannot provide evidence to support an essential element

18

8 All parties agree that Defendants Deputy Jason

19 Rohdenburg and Deputy Chue Vang should be dismissed from this

case. On October 7, 2020, the court granted plaintiffs’ motion

20 for leave to file a fourth amended complaint which would add

Sergeant Anthony Goulart as a defendant and dismiss Deputy Vang.

21

(See Docket No. 57.) Plaintiffs did not ultimately file a fourth

22 amended complaint, so Deputy Vang was not dismissed as a

defendant. Although the parties discussed a stipulation which

23 would dismiss Deputies Vang and Rohdenburg, (see Decl. of Gregory

Aker in Supp. of Mot. for Summ. J. at Ex. A (“Aker Decl.”)

24 (Docket No. 66-2).), the stipulation was not entered into due to

a disagreement between counsel over legal fees and expenses which

25

resulted in name calling and discourteous language. (See id.)

The court admonishes that such language is unnecessary,

26

unprofessional and ultimately only hurts the clients that counsel

27 on both sides purport to serve. Accordingly, the court orders

that Deputies Rohdenburg and Vang be dismissed from this case.

28

1 upon which it will bear the burden of proof at trial. Id. If

2 the moving party has properly supported its motion, the burden

3 shifts to the non-moving party to set forth specific facts to

4 show that there is a genuine issue for trial. See id. at 324.

5 “Where the record taken as a whole could not lead a rational

6 trier of fact to find for the non-moving party, there is no

7 genuine issue for trial.” Matsuhita Elec. Indus. Co. v. Zenith

8 Radio Corp., 475 U.S. 574, 587 (1986). Any inferences drawn from

9 the underlying facts must, however, be viewed in the light most

10 favorable to the party opposing the motion. See id.

11 A. Threshold Element of Causation

12 As a preliminary matter, defendants argue that

13 plaintiffs’ federal claims necessarily fail because there is no

14 material dispute that Gonzalez’s underlying health conditions,

15 rather than any actions taken by defendants, caused his death.

16 (See Mot. for Summ. J. at 13-14.); see Blanco v. Cnty. of Kings,

17 142 F.Supp.3d 986, 992 (E.D. Cal. 2015).

18 Defendants rely on several conclusions made by

19 plaintiffs’ forensic expert, Dr. Bennet Omalu. Dr. Omalu

20 concluded that Gonzalez died as a result of sudden cardiac

21 arrhythmogenic death and that cocaine toxicity was a contributory

22 factor. (See Mot. for Summ. J. at Ex. 24, p. 4.) Dr. Omalu also

23 stated that Gonzalez suffered from a rare genetic condition

24 associated with sudden cardiac arrest. (See Defs.’ SUF at No.

25 77.) Gonzalez never disclosed to the Jail’s correctional or

26 medical staff that he had any cardiac disease or abnormality,

27 (see id. at No. 79), and did not disclose that he had used

28 cocaine hours before he was arrested. (See Mot. for Summ. J. at

1 14.) Defendants contend that Dr. Omalu’s testimony dooms

2 plaintiffs’ § 1983 claims because it shows that Gonzalez’s death

3 had nothing to do with the conduct of the named individual

4 defendants. (See id.)9

5 Plaintiffs’ expert ultimately comes to a different

6 conclusion than the one offered by defendants, however. Dr.

7 Omalu states that “[d]eaths from Sudden Cardiac Arrhythmogenic

8 Deaths and/or Cocaine Toxicity are highly preventable and

9 survivable diseases” and that “patients frequently survive if,

10 and when, they are provided timely and definitive medical care.”

11 (See Lacy Decl. at Ex. F, p. 5.) Dr. Omalu also said that the

12 “mechanisms of death of these two causes of death can be readily

13 arrested, reversed, or controlled to reduce the risk of sudden

14 death, especially in a controlled institutional environment.”

15 (See id.) Dr. Omalu opined that “Gonzalez’s death was highly

16 preventable if timely and definitive medical care had been

17 provided.” (See id. at 6.) Although defendants describe

18 Gonzalez’s heart as akin to a ticking time bomb, Dr. Omalu stated

19 that Gonzalez was not “in any imminent traumatic danger, and

20 death was not imminent.” (See id. at 5.)

21 In Sandoval, the Ninth Circuit held that there was a

22 genuine dispute of material fact as to whether there was a direct

23 causal link between the County’s practices and the decedent’s

24 injuries because the plaintiff’s expert opined that the decedent

25 would have survived if he had been taken to the hospital at any

26

27 9 For example, neither party argues that the allegedly

excessive use of force used by Deputy Baxter in getting Gonzalez

28

1 time before he went into cardiac arrest. See Sandoval, 985 F.3d

2 at 681. Following the same reasoning, the court finds that Dr.

3 Omalu’s testimony suffices to create a genuine issue of material

4 fact as to the cause of Gonzalez’s death, and will not grant

5 summary judgment on this basis.

6 B. Qualified Immunity

7 The doctrine of qualified immunity “protects government

8 officials ‘from liability for civil damages insofar as their

9 conduct does not violate clearly established statutory or

10 constitutional rights of which a reasonable person would have

11 known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)(citing

12 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine

13 whether an officer is entitled to qualified immunity, the court

14 considers: (1) whether there has been a violation of a

15 constitutional right; and (2) whether the officers’ conduct

16 violated “clearly established” federal law. See Sharp v. Cnty.

17 of Orange, 871 F.3d 901, 909 (9th Cir. 2016) (citing Kirkpatrick

18 v. Cnty. of Washoe, 843 F.3d 784, 788 (9th Cir. 2016)). The

19 court has the discretion to decide which prong of qualified

20 immunity to address first and, if analysis of one prong proves

21 dispositive, the court need not analyze the other. See Pearson,

22 555 U.S. at 236.

23 Qualified immunity is a question of law to be decided

24 by the court. See Hunter v. Bryant, 502 U.S. 224, 228 (2009).

25 “Because the focus is on whether the officer had fair notice that

26 her conduct was unlawful, reasonableness is judged against the

27 backdrop of the law at the time of the conduct.” Kisela v.

28 Hughes, 138 S. Ct. 1148, 1152 (2018). Although the Supreme Court

1 has established that the case law does not require a case to be

2 directly on point for a right to be clearly established, existing

3 precedent must have placed the statutory or constitutional

4 question beyond debate. See White v. Pauly, 137 S. Ct. 548, 551

5 (2017). In other words, immunity protects all but the plainly

6 incompetent or those who knowingly violate the law. Id. The

7 Supreme Court has made clear that clearly established law should

8 not be defined at a high level of generality. See Kisela, 138 S.

9 Ct. at 1152. Plaintiffs bear the burden of “proving that the

10 right allegedly violated was clearly established at the time of

11 the official’s allegedly impermissible conduct.” Camarillo v.

12 McCarthy, 998 F.2nd 638, 640 (9th Cir. 1993).

13 1. Denial of Medical Care/ Failure to Summon Care

14 Plaintiffs allege that defendants Goeman, Baxter, and

15 Felber violated Gonzalez’s rights under the Fourteenth Amendment

16 by failing to summon medical care and provide constitutionally

17 adequate medical care. (See TAC at ¶¶ 34–39.) Individuals in

18 state custody have a constitutional right to adequate medical

19 treatment. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).

20 For inmates serving custodial sentences following a criminal

21 conviction, that right is part of the Eighth Amendment’s

22 guarantee against cruel and unusual punishment. See id.

23 However, pretrial detainees have not yet been convicted of a

24 crime and therefore are not subject to punishment by the state.

25 See Sandoval, 985 F.3d at 668. Accordingly, their rights arise

26 under the Fourteenth Amendment’s Due Process Clause. See id.

27 (citing Bell v. Wolfish, 441 U.S. 520, 535-36 (1979).)

28 Claims for violations of the right to adequate medical

1 care brought by pretrial detainees against individual defendants

2 under the Fourteenth Amendment must be evaluated under an

3 objective deliberate indifference standard. See Gordon v. Cnty.

4 of Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018). Pretrial

5 detainees alleging that jail officials failed to provide

6 constitutionally adequate medical care must show:

7 (1) The defendant made an intentional decision

with respect to the conditions under which

8 plaintiff was confined [including a decision with

respect to medical treatment];

9

(2) Those conditions put the plaintiff at

10 substantial risk of suffering serious harm;

11 (3) The defendant did not take reasonable

available measures to abate that risk, even though

12 a reasonable official in the circumstances would

have appreciated the high degree of risk involved

13 -- making the consequences of the defendant’s

conduct obvious; and

14

(4) By not taking such measures, the defendant

15 caused plaintiff’s injuries.

16

Id. at 1125 (9th Cir. 2018). To satisfy the third element,

17

plaintiffs must show that defendants’ actions were “objectively

18

unreasonable,” which requires a showing of “more than negligence

19

but less than subjective intent -- something akin to reckless

20

disregard.” Id.

21

Accordingly, to defeat qualified immunity for

22

defendants, plaintiffs must show that, given the available case

23

law at the time, a reasonable jail official knowing what

24

defendants knew would have understood that his actions,

25

“presented such a substantial risk of harm to [Gonzalez] that the

26

failure to act was unconstitutional.” See Horton by Horton v.

27

City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019); Sandoval,

28

1 958 F.3d at 678.

2 a. Nurse Goeman

3 Plaintiffs first contend that Nurse Goeman violated

4 clearly established federal law by providing constitutionally

5 inadequate medical care when treating Gonzalez and failing to

6 summon a doctor or nurse practitioner. (See Opp’n to Mot. for

7 Summ. J. at 12.)(Docket No. 70.) To defeat qualified immunity

8 for Nurse Goeman, plaintiffs must show that, given the available

9 case law at the time, a reasonable nurse knowing what Nurse

10 Goeman knew would have understood that placing Gonzalez in

11 general population housing and clearing him to attend court on

12 June 26, 2018, “presented such a substantial risk of harm to

13 [Gonzalez] that the failure to act was unconstitutional.” See

14 Horton, 958 F.3d at 678.

15 The strongest case that plaintiffs cite in support of

16 their contention that Nurse Goeman violated clearly established

17 law is Sandoval, 985 F.3d at 670. In Sandoval, the court held

18 that a jail nurse was not entitled to qualified immunity for

19 failure to provide constitutionally adequate medical care when,

20 after being told by a sheriff’s deputy that the inmate was

21 shaking, tired, disoriented, and needed to be looked at more

22 thoroughly, the jail nurse merely administered a duplicative

23 blood sugar test, cleared the inmate for booking, and failed to

24 check in on the inmate at any point for multiple hours. See id.10

25 10 Although the decision in Sandoval was published in

2021, the incidents at issue in Sandoval occurred in 2014. See

26

id. at 662. In deciding Sandoval, the Ninth Circuit held that,

27 even in 2014, the law clearly established that the nurses’

actions presented such a substantial risk of harm to the decedent

28

1 The court concludes that Sandoval is so wholly

2 factually distinguishable that it could not have placed a

3 reasonable nurse, knowing what Nurse Goeman knew, on notice that

4 her conduct was unlawful. Nurse Goeman did a full medical intake

5 examination of Gonzalez before clearing him to be in a general

6 population cell, started him on the Jail’s opiate withdrawal

7 protocol, and determined that he was “hemodynamically stable and

8 not in acute withdrawal” requiring continuous nursing and medical

9 care. (See Defs.’ SUF at Nos. 17–21.) Most critically, unlike

10 the inmate in Sandoval, Gonzalez was speaking normally and had a

11 steady gait. (See id. at No. 17.) His vital signs were normal,

12 and his physical examination only revealed goose bumps, tremors,

13 and a runny nose. (See id.) Although Gonzalez reported having

14 nausea, diarrhea, and cramping, he was promptly provided

15 treatment for these symptoms through the medications on the

16 Jail’s Opiate Withdrawal Protocol. (See id.) In contrast to the

17 inmate in Sandoval, Gonzalez was provided with meaningful medical

18 treatment, and not merely a cursory and duplicative medical test.

19 Nor does Sandoval provide any support for plaintiffs’

20 contention that Nurse Goeman violated clearly established law and

21 provided constitutionally inadequate medical care by clearing

22 Gonzalez to attend court on June 26th. When Nurse Goeman

23 evaluated Gonzalez on June 26, 2018, he was alert, oriented, and

24 able to communicate his needs and concerns, and he had a strong

25 and steady gait. (See id. at No. 24.) He reported that his

26 nausea and vomiting had abated after he had been treated by

27

28

1 another nurse the day prior and did not report any problems

2 eating. (See id.)

3 Gonzalez’s sole complaint at that time was that his

4 hand was cramping and hurt, and Nurse Goeman provided him Motrin

5 for the pain in response. (See id.) Nurse Goeman asked Gonzalez

6 whether he wanted to be on bed rest, and he stated that he did

7 not and wished to go to his court appearance. (See Mot. for

8 Summ. J. at Ex. 5.) Accordingly, Nurse Goeman cleared him to

9 return to his general population housing unit and to go to court

10 the next day. (See id.) Unlike the inmate in Sandoval, Gonzalez

11 was alert, oriented, able to communicate his needs and concerns,

12 and was not only provided medical treatment but was actually

13 improving because of the medical treatment provided. Sandoval

14 could not have possibly placed Nurse Goeman on notice that she

15 was providing constitutionally inadequate medical care by

16 acceding to Gonzalez’s wish to go to court, particularly given

17 his relatively minor symptoms of opiate withdrawal.

18 Although plaintiffs contend that Nurse Goeman was

19 somehow required to summon additional medical help by contacting

20 a doctor or nurse practitioner, the evidence they rely upon does

21 not establish this. (See Opp’n to Mot. for Summ. J. at 19.)

22 Rather, the County of San Joaquin Standardized Procedures for

23 Narcotic Withdrawals makes clear that symptoms of withdrawal

24 routinely last for 4-6 days, and that a doctor or nurse

25 practitioner need be contacted only if the signs and symptoms are

26 severe or do not improve despite treatment. (See Lacy Decl. at

27 Ex. C., p.3.) Although vomiting is listed as a severe subjective

28 sign of withdrawal, (see id. at p.2), Gonzalez had improved after

1 being treated for vomiting and did not report any problems eating

2 when he was evaluated by Nurse Goeman. (See Defs.’ SUF at No.

3 24.) Nor have plaintiffs provided any information suggesting

4 that a hand cramp is a severe symptom of opiate withdrawal.

5 In any event, Sandoval could not possibly have placed

6 Nurse Goeman on notice that the failure to summon medical care at

7 that stage was a violation of Gonzalez’s constitutional rights.

8 In Sandoval, the Ninth Circuit held that jail nurses were not

9 entitled to qualified immunity when the nurses knew that Sandoval

10 was unresponsive and having seizures but failed to promptly

11 summon paramedics, which was “[s]tandard nursing protocol.” See

12 Sandoval, 985 F.2d 657, 679. In contrast to Sandoval, Nurse

13 Goeman was not confronted with an inmate who was unresponsive and

14 in acute medical need. Nor is there any evidence that Goeman was

15 required to contact a doctor or nurse practitioner about

16 Gonzalez’s symptoms, particularly since he was improving with

17 treatment. All in all, Sandoval could not have placed a

18 reasonable nurse, knowing what Nurse Goeman knew, on notice that

19 her conduct was in any way unlawful.

20 b. Deputy Baxter

21 Plaintiffs next contend that Deputy Baxter violated

22 clearly established federal law by failing to summon medical care

23 for Gonzalez. (See Opp’n to Mot. for Summ. J. at 19.) Plaintiffs

24 cite Sandoval for the proposition that failure to provide “life

25 saving measures to an inmate in obvious need” is a clear

26 constitutional violation. See Sandoval, 985 F.3d at 679–80. The

27 court must therefore analyze whether Sandoval would have placed a

28 reasonable deputy, knowing what Deputy Baxter knew at the time,

1 on notice that failing to summon medical care for Gonzalez and

2 ensuring that he boarded the bus to his court date presented such

3 a substantial risk of harm to Gonzalez that the failure to act

4 was unconstitutional. See Horton, 915 F.3d 592, 599 (9th Cir.

5 2019).

6 California Penal Code § 825 mandates that criminal

7 defendants be taken before a criminal court judge without delay,

8 and in any event, within 48 hours of the arrest excluding Sundays

9 and holidays. See Cal. Pen. Code § 825. Although Gonzalez made

10 complaints of medical distress, requesting to see a nurse,

11 moaning that he was in pain, and even saying he was dying, Deputy

12 Baxter determined that Gonzalez should be sent to his mandated

13 court date only after verifying that he had been medically

14 cleared to attend court mere hours earlier, had refused bed rest,

15 and had insisted to Nurse Goeman that he wished to attend his

16 court date. (See id. at No. 36.)

17 Moreover, the Supreme Court has held that “clearly

18 established federal law does not prohibit a reasonable officer .

19 . . from assuming that proper procedures . . . have already been

20 followed.” See White, 137 S. Ct. at 552. Deputy Baxter was

21 therefore entitled to assume that proper medical procedures,

22 including Nurse Goeman's medical clearance of Gonzalez mere hours

23 earlier, had been followed. The court therefore concludes that

24 Sandoval could not have placed a reasonable deputy, knowing what

25 Deputy Baxter knew, on notice that his conduct here was unlawful.

26 c. Deputy Felber

27 Plaintiffs finally contend that Deputy Felber violated

28 clearly established federal law and failed to summon medical care

1 under 42 U.S.C. § 1983. The court must therefore determine

2 whether Sandoval would place a reasonable deputy, knowing what

3 Deputy Felber knew at the time, on notice that failing to have an

4 ambulance waiting for Gonzalez and additional deputies at the

5 ready, presented such a substantial risk of harm to Gonzalez that

6 the failure to act was unconstitutional. See Horton, 915 F.3d at

7 600.

8 Plaintiffs cite Sandoval for the proposition that “a

9 prison official who is aware that an inmate is suffering from a

10 serious acute medical condition violates the Constitution when he

11 stands idly by rather than responding with reasonable diligence

12 to treat the condition.” Sandoval, 985 F.3d at 680. However,

13 Deputy Felber only knew that Gonzalez complained of a medical

14 problem, not a medical emergency or serious acute medical

15 condition, and Deputy Baxter’s statements indicated that the main

16 issue with Gonzalez was that he was being uncooperative. (See

17 Mot. for Summ. J. at Ex. 20, Dep. Tr. of Matthew Felber at 24:3–

18 8; Defs.’ SUF No. 41.)

19 No evidence suggests that Deputy Felber became aware

20 that Gonzalez would require lifesaving, or even immediate,

21 medical attention until after Gonzalez had already arrived at the

22 courthouse. Nor is it clear to the court that Deputy Felber even

23 had the authority to summon additional medical care or order more

24 deputies to respond to Gonzalez’s transport bus; rather, the

25 evidence suggests that the ultimate decisions were to be made by

26 Deputy Felber’s superior, Sergeant Wheelen. All in all, Sandoval

27 could not have placed a reasonable deputy, knowing what Deputy

28 Felber knew, on notice that his conduct under the circumstances

1 of this case was unlawful.

2 d. Conclusion

3 Because plaintiffs fail to identify sufficiently

4 specific constitutional precedents to alert defendants that their

5 particular conduct was unlawful, all defendants are entitled to

6 qualified immunity for the alleged failure to provide

7 constitutionally adequate medical care and failure to summon

8 medical care under 42 U.S.C. § 1983. Considering all the

9 evidence, in the light most favorable to plaintiffs, the court

10 cannot conclude that any of these defendants either knowingly

11 violated the law or were plainly incompetent. See White, 137 S.

12 Ct. at 551. Accordingly, the court will grant summary judgment

13 on this claim.

14 2. Loss of Right to Familial Relations

15 Plaintiffs also contend that their own Fourteenth

16 Amendment rights to familial association were violated “as a

17 result of the denial of medical care by defendants.” (See TAC at

18 ¶¶ 52–54.) Parents and children may assert claims for

19 deprivation of their right to familial association under the

20 Fourteenth Amendment if they are deprived of their liberty

21 interest in the companionship and society of their child or

22 parent through official conduct. Wilkinson v. Torres, 610 F.3d

23 546, 554 (9th Cir. 2010).

24 However, liability for loss of familial relations is

25 limited to official conduct that “shocks the conscience.” Porter

26 v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). The Ninth

27 Circuit has indicated that this standard may be satisfied by

28 conduct that either “consciously or through complete indifference

1 disregards the risk of an unjustified deprivation of liberty.”

2 Tatum v. Moody, 768 F.3d 806, 820–21 (9th Cir. 2014) (citation

3 omitted). The Ninth Circuit further held that:

4 [W]here actual deliberation is practical,

then an officer's ‘deliberate indifference’

5 may suffice to shock the conscience. On the

other hand, where a law enforcement officer

6 makes a snap judgment because of an

escalating situation, his conduct may only be

7 found to shock the conscience if he acts with

a purpose to harm unrelated to legitimate law

8 enforcement objectives.

9 Id. (quoting Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th

10 Cir. 2013)).

11 The Supreme Court has specifically noted that the

12 “custodial situation of prison” is a setting where deliberate

13 indifference may be sufficient to shock the conscience because

14 “actual deliberation is practical.” Cnty. of Sacramento v.

15 Lewis, 523 U.S. 833, 852 (1998). This is because, unlike a

16 situation like a high-speed car chase or a prison riot, prison

17 officials have “time to make unhurried judgments” along with “the

18 chance for repeated reflection,” and their decision-making is

19 “largely uncomplicated by the pulls of competing obligations.”

20 Id. at 853. Accordingly, “[w]hen such extended opportunities to

21 do better are teamed with protracted failure even to care,

22 indifference is truly shocking.” Id.11

23

11 There is a legitimate question as to whether the proper

24 focus of the court’s inquiry should be on the constitutional

rights of the plaintiffs or Gonzalez. For instance, plaintiffs

25

have proffered no evidence that the defendants knew that Gonzalez

had any family, and were therefore aware that by taking any

26

allegedly unconstitutional action towards Gonzalez, they might

27 also be liable for violating the substantive due process rights

to familial association for his family members. Nevertheless,

28

1 Because the events at issue in this case all took place

2 in a custodial setting where actual deliberation is practical,

3 the determination as to as to whether defendants’ actions shocked

4 the conscience is judged by the deliberate indifference standard.

5 See Gordon, 888 F.3d 1118, 1124-25 (holding that claims for

6 violations of the right to adequate medical care brought by

7 pretrial detainees against individual defendants under the

8 Fourteenth Amendment must be evaluated under an objective

9 deliberate indifference standard).

10 The court has already found, above, that defendants are

11 entitled to qualified immunity on plaintiffs’ claim for denial of

12 medical care and failure to summon medical care because there is

13 no clearly established law that would have warned defendants that

14 their actions “presented such a substantial risk of harm to

15 [Gonzalez] that the failure to act was unconstitutional.”

16 Horton, 915 F.3d at 600–602; Sandoval, 985 F.3d at 678.

17 Accordingly, for the same reasons, defendants are also entitled

18 to qualified immunity with respect to plaintiffs’ denial of

19 familial association claim. See Estate of Nunez by and through

20 Nunez v. Cnty. of San Diego, Case No. 3:16-cv-01412-BEN-MDD, 2018

21 WL 5817091 * 10 (S.D. Cal. Nov. 5, 2018) (holding that because

22 plaintiffs’ Fourteenth Amendment right to familial association

23

assume that the proper focus of the court’s inquiry is on the

24 constitutional rights of Gonzalez. See Porter, 536 F.3d at 1140

(holding that where plaintiffs brought a Fourteenth Amendment

25

right to familial association claim following defendant’s

allegedly excessive use of force which killed their son, the

26

qualified immunity inquiry turned on whether plaintiffs could

27 present facts that would justify a jury finding that defendant

acted with an unconstitutional purpose to harm the rights of

28

1 with the decedent was necessarily premised on a finding that

2 defendants were deliberately indifferent as to decedent’s

3 Fourteenth Amendment right to constitutionally adequate medical

4 care, plaintiffs’ Fourteenth Amendment claim could not survive

5 where deliberate indifference to decedent’s right to adequate

6 medical care was not established). The court will therefore

7 grant summary judgment on this claim.12

8 3. Excessive Force under 42 U.S.C. § 1983

9 Plaintiffs contend that defendants violated clearly

10 established law in using excessive force under 42 U.S.C. § 1983

11 by making Gonzalez board the bus to court. Although plaintiffs

12 brought their excessive force claim against all defendants, they

13 now seem to concede that Deputy Baxter is the only individual

14 defendant who used any amount of force on Gonzalez at all. (See

15 Mot. for Summ. J. at 27-28); (see Opp’n to Mot. for Summ. J. at

16 23–24.) Accordingly, the court will grant summary judgment as to

17 Nurse Goeman and Deputy Felber and will only evaluate whether the

18

12 The cases cited by plaintiffs in support of their

19 contention that defendants violated clearly established law and

their Fourteenth Amendment right to familial association do not

20 compel a different finding. The only Ninth Circuit case cited by

plaintiffs that addresses the substantive due process right to

21

familial association under the Fourteenth Amendment in the

22 context of deliberate indifference to medical needs is Lemire v.

California Department of Corrections and Rehabilitation, 726 F.3d

23 1062, 1085 (9th Cir. 2013). There, the Ninth Circuit did not

hold that the actions of defendants who allegedly failed to

24 provide CPR to an inmate constituted deliberate indifference or

rose to the conscience-shocking level required for a Fourteenth

25

Amendment substantive due process violation, but rather found

that there were disputed issues of fact which precluded summary

26

judgment. See id. at 1085. As such, Lemire could not have

27 placed defendants on notice that their actions were in any way

unlawful.

28

1 use of force exerted by Deputy Baxter violated clearly

2 established law.

3 Plaintiffs cite Kingsley v. Hendrickson, 576 U.S. 389,

4 397 (2015), in support of their contention that Deputy Baxter

5 used excessive force and violated clearly established law. The

6 facts of Kingsley are wholly distinguishable from the facts at

7 issue here. In Kingsley, an inmate who refused to comply with

8 the orders of jail officials was forcibly removed from his cell

9 while in handcuffs and subsequently kneed in the back, had his

10 head slammed into a concrete bunk, and was stunned with a Taser.

11 See Kingsley, 576 U.S. at 393. Here, in contrast, Deputy Baxter

12 stated that Gonzalez refused orders to board the bus to court and

13 was “carried” onto the bus. (See Lacy Decl. at Ex. Z.)

14 Defendants have explained that “carrying” in jail parlance means

15 that Gonzalez was merely escorted onto the bus, not physically

16 picked up. (See Defs.’ SUF No. 39.) Deputy Baxter also pulled

17 Gonzalez’s hand away from the bus’s handrail because Gonzalez was

18 actively resisting the deputies and attempting to pull himself

19 off the bus and away from the deputies. (See id. at No. 38.)

20 Even assuming that Gonzalez was physically carried or

21 thrown onto the bus,13 plaintiffs have not identified any case law

22 which clearly establishes that such force is excessive in the

23

24 13 Plaintiffs contend that Gonzalez was thrown onto the

bus and that he hit his head. (See PAMF at No. 36.) The inmate

25

reports that plaintiffs rely on do not make it clear if this

means that Gonzalez was literally thrown onto the bus or if the

26

inmate was just speaking figuratively. It is unclear how the

27 deputies could have thrown Gonzalez onto the bus since it is

undisputed that the stairs onto the bus are narrow and neither

28

1 case of a non-compliant inmate who has been medically cleared for

2 court and is actively resisting the deputies attempting to place

3 him on the bus to court. In sum, Kingsley could not have placed

4 a reasonable deputy, knowing what Deputy Baxter knew, on notice

5 that escorting Gonzalez to the bus and pulling his hand away from

6 the bus’s handrail, while Gonzalez was actively resisting the

7 deputies and attempting to pull himself off the bus, would amount

8 to a constitutional violation.

9 Because plaintiffs have failed to identify sufficiently

10 specific constitutional precedents to alert Deputy Baxter that

11 his particular conduct was unlawful, Deputy Baxter is entitled to

12 qualified immunity for the alleged unreasonable use of force.

13 Considering all the evidence in the light most favorable to

14 plaintiffs, the court cannot conclude that Deputy Baxter either

15 knowingly violated the law or was plainly incompetent. See White,

16 137 S. Ct. at 551. Accordingly, the court will grant summary

17 judgment on this claim.

18 C. State Law Claims

19 Because the court will grant summary judgment on

20 plaintiffs’ federal claims, the court no longer has federal

21 question jurisdiction, and there is no suggestion that there is

22 diversity jurisdiction in this case. Federal courts have

23 “supplemental jurisdiction over all other claims that are so

24 related to claims in the action within such original jurisdiction

25 that they form part of the same case or controversy under Article

26 III of the United States Constitution.” 28 U.S.C. § 1367(a).

27 But a district court “may decline to exercise supplemental

28 jurisdiction. . . [if] the district court has dismissed all

1 claims over which it has original jurisdiction.” 28 U.S.C. §

2 1367(c); see also Acri v. Varian Assocs., Inc., 114 F.3d 999,

3 10001 n.3 (9th Cir. 1997)(en banc) (explaining that a district

4 court may decide sua sponte to decline to exercise supplemental

5 jurisdiction).

6 The Supreme Court has stated that “in the usual case in

7 which all federal-law claims are eliminated before trial, the

8 balance of factors to be considered under the pendent

9 jurisdiction doctrine -- judicial economy, convenience, fairness

10 and comity -- will point toward declining to exercise

11 jurisdiction over the remaining state-law claims.” Carnegie-

12 Mellon Univ. v. Cohill, 488 U.S. 343, 350 n.7 (1988).

13 Here, comity strongly weighs in favor of declining to

14 exercise supplemental jurisdiction over plaintiffs’ state law

15 claims. The state courts are fully competent to adjudicate such

16 claims. Some of plaintiffs’ claims raise particularly complex

17 questions of state law.14 Such questions are better left to

18

14 The court heard additional arguments from the parties

19 about plaintiffs’ claim under the Tom Bane Civil Rights Act.

These arguments revealed a split among district courts in

20 California, and even within this very district, as to whether

claims under the Tom Bane Civil Rights Act can be brought as

21

survival actions. The arguments also revealed substantial

22 confusion as to whether threats, intimidation, and coercion must

be shown independently from the alleged constitutional violation

23 in a deliberate indifference to medical needs claim. The

intricacies of the Tom Bane Civil Rights Act are particularly

24 salient in this case because, as plaintiffs’ counsel conceded

during the additional argument, Gonzalez died without incurring

25

any general damages. It is therefore an open question of state

law as to what damages plaintiffs would be entitled to recover if

26

they prevail on their Tom Bane Act claim. After hearing the

27 parties’ arguments and conducting its own legal research, the

court is convinced that this is a uniquely complex and unsettled

28

1 California courts to resolve.

2 As for judicial economy, plaintiffs’ state law claims

3 have not been the subject of any significant litigation in this

4 case, as the parties have focused on the federal claims.

5 Judicial economy does not weigh in favor of exercising

6 supplemental jurisdiction. And finally, convenience and fairness

7 do not weigh in favor of exercising supplemental jurisdiction

8 over plaintiffs’ remaining state law claims. The federal and

9 state fora are equally convenient for the parties. There is no

10 reason to doubt that the state court will provide an equally fair

11 adjudication of the issues. There is nothing to prevent

12 plaintiffs from refiling their state law claims against the

13 remaining defendants in state court, and any additional cost or

14 delay resulting therefrom should be minimal.15 Accordingly, the

15 court declines to exercise supplemental jurisdiction and will

16 dismiss plaintiffs’ remaining state law claims without prejudice

17 to refiling in state court.

18 IT IS THEREFORE ORDERED that that defendants’ motion to

19 seal, (Docket No. 67), be, and the same hereby is DENIED;

20 IT IS FURTHER ORDERED that, pursuant to the

21 representations of all parties, all claims against defendants

22

23 case would be best decided by state courts.

24 15 “[T]he period of limitations for any claim asserted

under [28 U.S.C. § 1367(a)], and for any other claim in the same

25

action that is voluntarily dismissed at the same time or after

the dismissal of the claim under subsection (a), shall be tolled

26

while the claim is pending and for a period of 30 days after it

27 is dismissed unless State law provides for a longer tolling

period.” 28 U.S.C. § 1367(d).

28

eee eee eee IE I RI OO EES

1 Chue Vang and Jason Rohdenburg be, and the same hereby are,

2 DISMISSED WITH PREJUDICE;

3 IT IS FURTHER ORDERED that defendants’ motion for

4 summary judgment (Docket No. 66-1) be, and the same hereby is,

5 GRANTED as to plaintiffs’ first claim for denial of medical

6 care/failure to summon medical care under 42 U.S.C. § 1983, third

7 claim for excessive force under 42 U.S.C. § 1983, and fourth

8 claim for loss of their right to familial association under 42

9) U.S.C. § 1983;

10 AND IT IS FURTHER ORDERED that plaintiffs’ remaining

11 claims against defendants under California law be, and the same

12 hereby are, DISMISSED WITHOUT PREJUDICE to refiling in state

13 court.

14 The Clerk of Court is instructed to enter judgment

15 accordingly.

16 Dated: April 20, 2021

17 . - ak.

A ble, (hi.te—

18 WILLIAM B. SHUBB

19 UNITED STATES DISTRICT JUDGE

20

21

22

23

24

25

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27

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34

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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