Dunsmore v. State of California

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DARRYL DUNSMORE, ERNEST Case No.: 20-cv-00406-AJB-WVG

ARCHULETA, ANTHONY

12 EDWARDS, REANNA LEVY, JOSUE ORDER:

LOPEZ, CHRISTOPHER NELSON,

13 CHRISTOPHER NORWOOD, and

LAURA ZOERNER, on behalf of (1) DENYING PLAINTIFFS’ MOTION

14 themselves and all others similarly FOR PRELIMINARY INJUNCTION;

situated,

and

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Plaintiffs,

16 (2) DENYING AS MOOT

v.

PLAINTIFFS’ MOTION FOR

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SAN DIEGO COUNTY SHERIFF’S PROVISIONAL CLASS

18 DEPARTMENT, COUNTY OF SAN CERTIFICATION

DIEGO, CORRECTIONAL

19 HEALTHCARE PARTNERS, INC.,

TRI-CITY MEDICAL CENTER, (Doc. No. 119)

20 LIBERTY HEALTHCARE, INC.,

MID-AMERICA HEALTH, INC.,

21 LOGAN HAAK, M.D., INC., SAN

DIEGO COUNTY PROBATION

22 DEPARTMENT, and DOES 1 to 20,

inclusive,

23 Defendants.

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Presently pending before the Court is Plaintiffs’ motions for preliminary injunction

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and provisional class certification. (Doc. No. 119.) On August 11, 2022, the Court heard

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oral arguments and took the matter under submission. For the reasons set forth below, the

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1 Court DENIES Plaintiffs’ motion for preliminary injunction and DENIES AS MOOT

2 Plaintiffs’ motion for provisional class certification of an injunctive class.

3 I. BACKGROUND

4 As a preliminary matter, the Court fully appreciates the seriousness of the allegations

5 brought by Plaintiffs regarding the conditions and high death rates in the San Diego County

6 Jail facilities. However, preliminary injunctions are highly disfavored by courts and the

7 burden on plaintiffs for a mandatory injunction is very difficult to overcome. Plaintiffs fail

8 to meet their burden at this time.

9 Plaintiffs Darryl Dunsmore, Ernest Archuleta, Anthony Edwards, Reanna Levy,

10 Josue Lopez, Christopher Nelson, Christopher Norwood, and Laura Zoerner (collectively,

11 “Plaintiffs”) are current or former inmates of San Diego County Jail facilities (the “Jail”),

12 operated by Defendants San Diego County Sheriff’s Department (“Sheriff’s Department”)

13 and County of San Diego (the “County”) (collectively, “County Defendants”). Correctional

14 Healthcare Partners, Inc. and Liberty Healthcare, Inc., (collectively, “Contractor

15 Defendants”) provide security, medical care, mental health care, and dental care to the

16 individuals incarcerated in the Jail. Plaintiffs bring this action on behalf of “themselves

17 and the approximately 4,000 incarcerated people who are similarly situated on any given

18 day” to “remedy the dangerous, discriminatory, and unconstitutional conditions in the Jail.”

19 (Second Amended Complaint (“SAC”), Doc. No. 81, ¶ 6.) Specifically, Plaintiffs contend

20 Defendants’ policies and practices contribute to the high death rates in the Jail, which “has

21 for years exceeded the rates nationally and in other large California jails, [and] it reached

22 chilling heights in 2021 when 18 people died, amounting to a death rate of 458 incarcerated

23 people per 100,000.” (Id. ¶ 1.)

24 To this point, the California State Auditor’s February 3, 2022 report found that “the

25 Sheriff’s Department has failed to adequately prevent and respond to the deaths of

26 individuals in its custody.” (Id. ¶ 2 (quoting Doc. No. 119-3 at 44).) These deaths are “often

27 attributable to suicide, overdoses, homicide, and medical neglect, and many involved

28 persons with a mental illness.” (Id. ¶ 3.) As such, Plaintiffs seek declaratory and injunctive

1 relief against Defendants for their “deliberate indifference to their obligation to provide

2 incarcerated people with minimally adequate medical care[,]” (id. ¶ 7); “deliberate

3 indifference to their failure to provide incarcerated people with minimally adequate mental

4 health care[,]” (id. ¶ 9); “systemic and willful discrimination against, and failure to provide

5 reasonable accommodations in, programs, services, and activities to incarcerated people in

6 the Jail who have disabilities[,]” (id. ¶ 10); “deliberate indifference to their failure to ensure

7 the safety and security of incarcerated people against other unreasonably dangerous

8 conditions in the Jail[,]” (id. ¶ 11); “deliberate indifference to their failure to provide

9 incarcerated people with adequate dental care[,]” (id. ¶ 12); and “interference with

10 Plaintiffs’ right to effective assistance of counsel and right to access the courts . . . .” (id.

11 ¶ 13).

12 The FAC alleges 42 U.S.C. § 1983 violations of Plaintiffs’ (1) Eighth Amendment

13 right to be free from cruel and unusual punishment; (2) Fourteenth Amendment right to

14 equal protection under the law; and (3) Sixth Amendment right to counsel. Plaintiffs also

15 claim violations of the Americans with Disabilities Act (“ADA”) against both County and

16 Contractor Defendants, including (4) Discrimination on the Basis of Disability; and

17 (5) Discrimination Contributing to Unnecessary Incarceration and Institutionalization.

18 Plaintiffs further claim violations of (6) Article 1, Section 7 of the California Constitution;

19 (7) Article 1, Section 17 of the California Constitution; (8) Title II of the Rehabilitation

20 Act, 29 U.S.C. § 794 (Discrimination on the Basis of Disability); (9) the Unruh Civil Rights

21 Act, California Civil Code § 51, et seq.; (10) California Gov’t Code § 11135

22 (Discrimination on the Basis of Disability); (11) Section 15 of the California Constitution;

23 (12) Section 7 of the California Constitution; and (13) California Gov’t Code § 11135

24 (Discriminatory Impact). (Id. ¶¶ 398–464.)

25 Plaintiffs apply for a preliminary injunction requesting the Court require Defendants

26 to institute various policies for improved conditions for inmates remaining in the Jail.

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1 II. REQUEST FOR JUDICIAL NOTICE

2 To begin, Plaintiffs request judicial notice of several documents. (Doc. No. 119-2.)

3 Federal Rule of Evidence 201(b) permits judicial notice of any fact “not subject to

4 reasonable dispute because it: (1) is generally known within the trial court’s territorial

5 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy

6 cannot be questioned.” Fed. R. Evid. 201(b); Khoja v. Orexigen Therapeutics, Inc., 899

7 F.3d 988, 999 (9th Cir. 2018). “Under Rule 201, the court can take judicial notice of public

8 records and government documents available from reliable sources on the internet such as

9 websites run by government agencies.” U.S. ex rel. Modglin v. DJO Global Inc., 48 F.

10 Supp. 3d 1362, 1381 (C.D. Cal. 2014) (collecting cases).

11 First, Plaintiffs request judicial notice of several governmental agency reports

12 regarding the San Diego County Sheriff’s Department. (Doc. No. 119-2 at 5.) Specifically,

13 Plaintiffs request the Court take judicial notice of the California State Auditor’s February

14 3, 2022 report, No. 2021-109, as well as the Sheriff’s Department’s response to the report;

15 several findings by the County of San Diego’s Citizens’ Law Enforcement Review Board

16 (“CLERB”); and the San Diego Association of Governments (“SANDAG”) Report. (Id.)

17 While each of these proffered documents are public documents whose existence is not

18 subject to reasonable dispute, the Court may not take judicial notice of the facts contained

19 within these documents. See United States v. Kiewit Pac. Co., No. 12-cv-02698-JST, 2013

20 WL 5770514, at *5 (N.D. Cal. Oct. 24, 2013) (taking judicial notice of public reports, but

21 not “for the truth of their content, but rather for the fact that the reports were made”); see

22 also Johnson v. Napa Valley Wine Train, Inc., No. 15-cv-04515-TEH, 2016 WL 493229,

23 at *14 (N.D. Cal. Feb. 9, 2016) (“[W]hile a court may take judicial notice of undisputed

24 matters of public record, judicial notice is taken of the fact that the records exist, not the

25 facts stated within the records.”). With these limitations in mind, the Court GRANTS

26 Plaintiffs’ first request for judicial notice.

27 Plaintiffs further request judicial notice of publicly available data regarding the

28 incarcerated population in San Diego County, posted on the Sheriff’s Department’s

1 website, (Doc. No. 119-2 at 7–8); the Sheriff’s Department’s policies and procedures, (id.

2 at 8–9); additional findings and policy recommendations by CLERB, (Doc. No. 162-1 at

3 3); the Sheriff’s Department Detention Services Bureau report on “Suspected Overdose

4 Incidents with Naloxone Deployment,” dated June 2, 2022, (id.); the Sheriff’s Department

5 Detention Services Bureau’s June 6, 2022 Realigned Population Report, (id.); and the

6 Order Distributing and Enforcing the Amended County Jail Order and Plan in Armstrong

7 v. Brown, No. C 94-2307 CW (N.D. Cal. Aug. 12, 2012), (id.). Because the Court does not

8 rely on these documents in deciding this motion, Plaintiffs’ request for judicial notice is

9 DENIED AS MOOT.

10 III. MOTION FOR PRELIMINIARY INJUNCTION

11 A. Legal Standard

12 A party seeking a preliminary injunction must fulfill one of two standards, described

13 by the Ninth Circuit as the “traditional” and “alternative” standards. See Cassim v. Bowen,

14 824 F.2d 791, 795 (9th Cir. 1987). Under the traditional standard, a court may issue

15 preliminary relief if it finds: (1) the moving party will probably prevail on the merits;

16 (2) the moving party will suffer irreparable injury if the relief is denied; (3) the balance of

17 the hardships favor the moving party; and (4) the public interest favors granting relief. Id.

18 Under the alternative standard, the moving party may meet its burden by

19 demonstrating either: (1) a combination of probable success on the merits and the

20 possibility of irreparable injury; or (2) that serious questions exist and the balance of

21 hardships tips sharply in its favor. See id. This latter formulation represents two points on

22 a sliding scale in which the required degree of irreparable harm increases as the probability

23 of success decreases. See Oakland Trib., Inc. v. Chron. Publ’g Co., 762 F.2d 1374, 1376

24 (9th Cir. 1985).

25 A preliminary injunction can be either prohibitory, which means it “preserves the

26 status quo pending a determination of the action on the merits,” or mandatory, which means

27 it “orders a responsible party to take action.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

28 GmbH & Co., 571 F.3d 873, 878–79 (9th Cir. 2009) (internal quotations omitted). “A

1 mandatory injunction goes well beyond simply maintaining the status quo and is

2 particularly disfavored. In general, mandatory injunctions are not granted unless extreme

3 or very serious damage will result and are not issued in doubtful cases or where the injury

4 complained of is capable of compensation in damages.” Id. at 879 (internal quotations and

5 citations omitted).

6 B. Discussion

7 In their preliminary injunction application, Plaintiffs request nineteen mandatory

8 injunctions regarding Defendants’ response to emergencies, overdose prevention and

9 addiction treatment, mental health care and clinical input in placement decisions, and

10 meaningful program access for people with mobility disabilities. (Doc. No. 119-3 at 37–

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12 1. Likelihood of Success on the Merits

13 a. Mootness

14 Defendants first argue Plaintiffs fail to establish standing because those plaintiffs

15 who are no longer in jail, are in the process of being transferred, or have already been

16 transferred have no standing. (Doc. No. 153 at 13.)

17 In order to have standing for prospective injunctive relief, a plaintiff must establish

18 a “real and immediate threat of repeated injury.” Chapman v. Pier 1 Imports (U.S.) Inc.,

19 631 F.3d 939, 946 (9th Cir. 2011) (en banc) (quoting O’Shea v. Littleton, 414 U.S. 488,

20 496 (1974)). “[P]ast wrongs do not in themselves amount to that real and immediate threat

21 of injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). Instead, a plaintiff is not

22 entitled to an injunction against past illegal conduct unless he demonstrates “a sufficient

23 likelihood that he will again be wronged in a similar way.” Id. at 111; see also Mayfield v.

24 United States, 599 F.3d 964, 970 (9th Cir. 2010) (“Once a plaintiff has been wronged, he

25 is entitled to injunctive relief only if he can show that he faces a real or immediate threat

26 that he will again be wronged in a similar way.”) (alterations and internal quotation marks

27 omitted). The threat of harm cannot be “speculative.” Lyons, 461 U.S. at 111. It must be a

28 “prospect of immediacy and reality.” Id. at 104 (internal quotation marks omitted); see also

1 Munns v. Kerry, 782 F.3d 402, 411–12 (9th Cir. 2015) (“Despite being harmed in the past,

2 the [plaintiffs] must still show that the threat of injury in the future is ‘certainly impending’

3 or that it presents a ‘substantial risk’ of recurrence for the court to hear their claim for

4 prospective relief.”) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)).

5 In addition, the need for a “real and immediate threat of repeated injury” has

6 particular force where, as here, a federal court is “asked to oversee state law enforcement

7 authorities.” Lyons, 461 U.S. at 112. The United States Supreme Court has cautioned that

8 “the need for a proper balance between state and federal authority counsels restraint in the

9 issuance of injunctions against state officers . . . in the absence of irreparable injury which

10 is both great and immediate.” Id.; see also O’Shea, 414 U.S. at 499.

11 Here, the release of Plaintiffs from the San Diego County Jail does not render this

12 case moot because this controversy falls squarely within the capable-of-repetition-yet-

13 evading-review branch of the mootness doctrine. “This branch applies when (1) the

14 duration of the challenged action is too short to be litigated prior to cessation, and (2) there

15 is a ‘reasonable expectation’ that the same parties will be subjected to the same offending

16 conduct.” Demery v. Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004) (citing Spencer v.

17 Kemna, 523 U.S. 1, 17–18 (1998)). Because the Jail is a pretrial detention center, “the

18 length of detention in the county jail is short enough that any individual detainee’s claim

19 would probably become moot before trial.” Or. Advocacy Ctr. v. Mink, 322 F.3d 1101,

20 1117–18 (9th Cir. 2003). As the Supreme Court has explained, “[p]retrial detention is by

21 nature temporary, and it is most unlikely that any given individual could have his

22 constitutional claim decided on appeal before he is either released or convicted.” Gerstein

23 v. Pugh, 420 U.S. 103, 111 n.11 (1975). In these circumstances, Plaintiffs readily satisfy

24 the first prong of the capable-of-repetition-yet-evading-review branch of the mootness

25 doctrine.

26 To satisfy the second prong, Plaintiffs “must show either a ‘demonstrated

27 probability’ or a ‘reasonable expectation’ that [they] would be transferred back to [the Jail]

28 or released and reincarcerated there.” Demery, 378 F.3d at 1027 (quoting Oliver v. Scott,

1 276 F.3d 736, 741 (5th Cir. 2002)); see also Mitchel v. Dupnik, 75 F.3d 517, 528 (9th Cir.

2 1996).

3 Here, the record contains compelling evidence that Plaintiffs likely will be

4 reincarcerated at the Jail. For example, the eight named Plaintiffs have been incarcerated

5 at the Jail approximately 56 times in total, including Plaintiff Zoerner who has been

6 incarcerated 24 times since 2010. (Doc. No. 162 at 8.) Thus, this controversy also satisfies

7 the capable-of-repetition prong. Accordingly, the case is not moot, and the Court has

8 jurisdiction to decide the merits of Plaintiffs’ preliminary injunction motion.

9 Additionally, Defendants’ contention that Plaintiffs’ request for injunctive relief is

10 moot because of recent and ongoing changes in medical and dental subcontractors is

11 unavailing. (See Doc. No. 153 at 15.) “[T]he standard for determining whether a case has

12 been mooted by the defendant’s voluntary conduct is stringent: A case might become moot

13 if subsequent events make it absolutely clear that the allegedly wrongful behavior could

14 not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

15 (TOC), Inc., 528 U.S. 167, 170 (2000). Defendants have not met that burden. Although

16 Defendants assert the County is to “replace detention division subcontractors for medical,

17 mental health, dental, and vision care with a single subcontractor who would handle all of

18 the needs and provide on-site staffing,” Defendants have not provided any facts supporting

19 their contention that “the allegedly wrongful conduct could not reasonably be expected to

20 recur.” (See Doc. No. 153 at 15.)

21 b. Plaintiffs Have Exhausted Administrative Remedies

22 Defendants next contend Plaintiffs failed to exhaust their administrative remedies

23 under the Prison Litigation Reform Act (“PLRA”). (Doc. No. 153 at 13.)

24 The PLRA states that “[n]o action shall be brought with respect to prison conditions

25 under section 1983 of this title, or any other Federal law, by a prisoner . . . until such

26 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

27 Plaintiffs argue they have exhausted their administrative remedies and offer into

28 evidence multiple grievance reports by various named Plaintiffs, and in each instance,

1 Plaintiffs largely assert they received no response. (Doc. No. 162 at 9; see also Declaration

2 of Van Swearingen (“Swearingen Decl.”), Doc. No. 162-2, ¶¶ 14–22; Doc. No. 162-2 at

3 77–79, 81–84, 86–101, 103, 105, 107–108, 110.) The Court agrees. When prison officials

4 improperly fail to process a prisoner’s grievance, the prisoner is deemed to have exhausted

5 available administrative remedies. In such circumstances, prison officials have “thwart[ed]

6 inmates from taking advantage of [the] grievance process,” making that process

7 unavailable. Ross v. Blake, 578 U.S. 632, 643 (2016); cf. Brown v. Valoff, 422 F.3d 926,

8 943 n.18 (9th Cir. 2005) (“Delay in responding to a grievance, particularly a time-sensitive

9 one, may demonstrate that no administrative process is in fact available.”) As such, the

10 Court finds Plaintiffs exhausted their administrative remedies.

11 c. Merits

12 Likelihood of success is the most important Winter factor. Garcia v. Google, Inc.,

13 786 F.3d 733, 740 (9th Cir. 2015); Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014)

14 (“We begin with the first and most important factor: whether petitioners have established

15 a likelihood of success on the merits.”). A “district court should deny such relief ‘unless

16 the facts and law clearly favor the moving party.’” Stanley v. Univ. of S. Cal., 13 F.3d 1313,

17 1320 (9th Cir. 1994) (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.

18 1979)). In plain terms, mandatory injunctions should not issue in “doubtful cases.” Park

19 Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir.

20 2011).

21 Here, the Court is unable to determine for which claims Plaintiffs seek preliminary

22 injunction, and Plaintiffs fail to connect the dots for the Court as to which factual

23 allegations go to each claim. Although the Court appreciates the seriousness of Plaintiffs’

24 claims, Plaintiffs have the burden of specifying on which claims they seek preliminary

25 injunction and how they are to succeed on the likelihood of the merits by analyzing the

26 elements of each claim. Plaintiffs have not done so here. It is very well possible that the

27 factual elements of the causes of action asserted are present, but they are presented in a

28 rather undecipherable manner. The Court had difficulty distinguishing between a cause of

1 |} action and an irrelevant assertion or grievance and distinguishing between causes of action

2 themselves in Plaintiffs’ 223-page SAC. An inadequately pled claim, by definition, is not

3 |}a claim which has a substantial likelihood of success on the merits.

4 Additionally, in several instances, Plaintiffs failed to identify a single named

5 || plaintiff who suffered an injury-in-fact from Defendants’ conduct or to plead an injury

6 ||altogether. For example, Plaintiffs seek preliminary injunction based on Defendants’

7 ||alleged failure to conduct adequate and timely safety checks. (Doc. No. 119 at 32.)

8 || However, Plaintiffs’ FAC fails to name any Plaintiff who was injured as a result of

9 || Defendants’ alleged conduct. As such, Plaintiffs lack standing on many of their claims.

10 Lastly, the requested relief is far reaching and overly broad, and Plaintiffs lack

11 || specificity in the relief requested. No clear plan is advanced for the Court to make specific

12 ||recommendations for provisional relief. Discovery will no doubt edify the merits of

13 || Plaintiffs’ claims beyond what currently exists and will assist the Court in understanding

14 || the true depths of the problems alleged as well as the remedies available. Thus, Plaintiffs

15 || have failed to meet their burden to show a likelihood of success on the merits. As such, the

16 || Court need not analyze the remaining Winter factors.

17 Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ motion for

18 || preliminary injunction.

19 ||IV. CONCLUSION

20 For the foregoing reasons, the Court DENIES Plaintiffs’ motion for preliminary

21 |/injunction and DENIES AS MOOT Plaintiffs’ motion for provisional class certification

22 || of an injunctive class.

23 IT IS SO ORDERED.

24 Dated: August 15, 2022 © ¢

25 Hon. Anthony J.Battaglia

26 United States District Judge

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