The Estate of Paul Silva v. City of San Diego

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 THE ESTATE OF PAUL SILVA, et al., Case No.: 3:18-cv-2282-L-MSB 13 Plaintiffs, ORDER DENYING PLAINTIFFS’ 14 MOTION FOR RECONSIDERATION 15 v. [ECF NO. 242] 16 17 CITY OF SAN DIEGO, et al., 18 Defendants. 19 20 Pending before the Court is Plaintiffs’ Motion for Reconsideration pursuant to 21 Federal Rule of Civil Procedure 60 of Order Granting in Part and Denying in Part 22 Defendant City of San Diego’s Summary Judgment Motion. Plaintiffs seek limited 23 reconsideration as to claims based on Defendant Officer Murrow’s conduct including the 24 Bane Act claim, Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) 25 claims, and deliberate indifference to a serious medical need claim. (Mot. at 1 [ECF No. 26 242-1.]) 27 // 28 1 I. BACKGROUND 2 The Court incorporates the statement of facts as contained in the Order Granting in 3 Part and Denying in Part Defendant City of San Diego’s Summary Judgment Motion. 4 II. LEGAL STANDARD 5 A “court may correct a clerical mistake or a mistake arising from oversight or 6 omission whenever one is found in a judgment, order, or other part of the record. The 7 court may do so on motion or on its own, with or without notice.” Federal Rule of Civil 8 Procedure 60(a). 9 Rule 60(b) provides: 10 On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following 11 reasons: 12 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 13 discovered evidence that, with reasonable diligence, could not have been 14 discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 15 misconduct by an opposing party; (4) the judgment is void; (5) the judgment 16 has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer 17 equitable; or (6) any other reason that justifies relief. 18 19 Fed.R. Civ.P. 60(b). 20 “A court's power to vacate judgments under Rule 60(b) in order ‘to accomplish 21 justice’ is balanced against ‘the strong public interest in the timeliness and finality of 22 judgments.’” Martinez v. Shinn, 33 F.4th 1254, 1262 (9th Cir. 2022). 23 III. DISCUSSION 24 A. Bane Act Claim 25 “The Tom Bane Civil Rights Act, 1987 Cal. Stat. 4544, was enacted in 1987 to 26 address hate crimes.” Reese v. County of Sacramento, 888 F.3d 1030, 1040 (9th Cir. 2018). 27 Under the Bane Act, a plaintiff may be awarded damages, injunctive relief, and other 28 “appropriate equitable relief” against a person or persons who “interferes by threats, 1 intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with 2 the exercise or enjoyment by any individual or individuals of rights secured” by federal or 3 state law or the United States or California constitutions. Cal. Civ. Code. § 52.1. To plead 4 a Bane Act claim, a plaintiff must allege that the defendant interfered with his or her 5 constitutional or statutory rights and that the interference was accompanied by actual or 6 attempted threats, intimidation, or coercion. Id. “[S]section 52.1 does not require a showing 7 of ‘threats, intimidation and coercion’ separate from an underlying constitutional 8 violation.” Reese, 888 F.3d at 1042. “Any arrest without probable cause involves coercion, 9 and where accompanied by evidence of specific intent to violate the arrestee's Fourth 10 Amendment rights, such an arrest may provide the basis for a Bane Act claim.” Schmid v. 11 City and County of San Francisco, 60 Cal.App.5th 470, 483 (Cal.Ct. Ap. 4th 2021). 12 Plaintiffs contend that the Bane Act claim was improperly dismissed because this 13 Court’s determination that Officer Murrow did not have probable cause to arrest Silva is 14 sufficient to show coercion for purposes of the Bane Act. (Mot. at 1). They further contend 15 that Officer Murrow acted with deliberate indifference which satisfies the specific intent 16 requirement for a Bane Act claim. (Id. at 2). 17 In its Order denying summary adjudication as to Plaintiff’s Bane Act claim, the 18 Court held “[u]nder the totality of the circumstances known to Officer Murrow, who made 19 the arrest, a reasonable jury could find that Officer Murrow did not have probable cause to 20 arrest Silva for being under the influence of methamphetamine.” (Ord. MSJ at 12 [ECF 21 No. 240.]) In light of the Court’s finding that Officer Murrow did not have probable cause 22 for the arrest, the arrest necessarily involved coercion sufficient to provide the basis for a 23 Bane Act Claim. See Schmid, 60 Cal.App.5th at 483. However, as discussed in detail below 24 in Section III.C, Plaintiffs have not sufficiently alleged deliberate indifference, therefore 25 the necessary element of specific intent is not satisfied. See Luttrell v. Hart, 2020 WL 26 5642613, *5 (N.D. Cal. 2020)(“As to the question of the specific intent inquiry, if a plaintiff 27 adequately pleads a claim for deliberate indifference, which requires a pleading of reckless 28 1 disregard, then he has sufficiently alleged the intent required for the Bane Act claim.) 2 Accordingly, the Court denies Plaintiffs motion for reconsideration on this claim. 3 B. Americans with Disabilities Act and Rehabilitation Act Claim 4 Title II of the ADA provides that “no qualified individual with a disability shall, by 5 reason of such disability, be excluded from participation in or be denied the benefits of the 6 services, programs, or activities of a public entity, or be subjected to discrimination by any 7 such entity.” 42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act provides that 8 “[n]o otherwise qualified individual with a disability shall, solely by reason of her or his 9 disability, be excluded from the participation in, be denied the benefits of, or be subjected 10 to discrimination under any program or activity receiving Federal financial assistance.” 29 11 U.S.C. § 794(a). Under both Title II of the ADA and the RA, discrimination on the basis 12 of disability by state or local governments or their instrumentalities is prohibited but the 13 RA applies specifically to programs receiving federal funding. See 42 U.S.C. § 14 12131(1)(B); 29 U.S.C. § 794(b). Public entities are vicariously liable for the acts of their 15 employees under both acts. See Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th 16 Cir.2001). “There is no significant difference in analysis of the rights and obligations 17 created by the ADA and the Rehabilitation Act.” Zukle v. Regents of Univ. of Cal., 166 18 F.3d 1041, 1045 n. 11 (9th Cir.1999). As a result, courts apply the same analysis to claims 19 under both statutes. 20 Two types of ADA claims are applicable to arrests: 21 (1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; 22 and (2) reasonable accommodation, where, although police properly 23 investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to reasonably accommodate the person's disability in the 24 course of investigation or arrest, causing the person to suffer greater injury 25 or indignity in that process than other arrestees.

26 Sheehan v. City and County of San Francsico, 743 F.3d 1211, 1232 (9th Cir. 2014) 27 (rev’d on other grounds City and County of San Francisco v. Sheehan, 575 U.S. 600 (2015). 28 1 Plaintiffs argue that the Court omitted any discussion of Plaintiffs’ wrongful arrest 2 claim under the ADA despite finding all the necessary elements pursuant to Orr v. 3 California Highway Patrol, 2015 WL 848553, at *17 (E.D.Cal. Feb 26, 2015). (Mot. at 5). 4 Plaintiffs further contend that Defendants did not meet their burden under the ADA to show 5 that accommodation was not feasible. (Id. at 6). In addition, Plaintiffs claim that Officer 6 Murrow acted with deliberate indifference by choosing not to transport Silva to a hospital. 7 (Id.) 8 1. Wrongful Arrest 9 In the Complaint, Plaintiffs do not specifically assert that Silva was wrongfully 10 arrested under the ADA but instead argue that SDPD “assumed Paul’s symptoms of 11 schizophrenia were symptoms of drug use” and administered field sobriety tests which a 12 schizophrenic patient cannot pass despite being aware that the call was for “5150” 13 indicating a mental health crisis. (FAC at ¶ 384). In addition, Plaintiffs argue that 14 Defendants were deliberately indifferent to Silva’s serious medical condition and failed to 15 communicate his condition. (Id. at ¶ 388). As a result of these actions, Plaintiffs claim that 16 Defendants failed to provide a reasonable accommodation. In their Opposition to City 17 Defendants summary judgment motion, Plaintiffs more fully address this claim and assert 18 that Silva was wrongfully arrested under the ADA because: 19 Defendants knew from their training that psychiatric conditions may mimic drug use or impairment. Officers are trained to “determine whether the 20 impairment is drug or medically related.” People with psychiatric disabilities 21 “may be acting in a ‘bizarre’ manner simply because they are not taking their medication. The DRE training manual itself informs officers that the 22 DRE exam protocol is not very accurate in determining stimulant 23 intoxication, effective only in 33 percent of the time. Paul was arrested because he spoke rapidly; had disorganized thought; was sweating as a result 24 of wearing layers of winter clothes in hot weather; and because he had bad 25 hygiene having been out all night on the streets getting into neighbors’ garbage. These are all symptoms and indicators of mental illness as 26 illustrated by the previous incident in which the PERT officers took Paul in 27 for evaluations under 5150 for exhibiting these same symptoms.

28 1 (Oppo. at 31-32 [ECF No. 225].)

2 In light of these facts, Plaintiffs argue that “a reasonable juror could determine that 3 the officers should have known that Paul was disabled, and that they arrested him for legal 4 conduct related to his disability.” (Id. at 31). 5 Plaintiffs have not cited binding authority to support their argument. While district 6 courts within the Ninth Circuit have concluded that, “[t]o prevail on a theory of wrongful 7 arrest under the ADA, [a plaintiff] must prove that (1) he was disabled; (2) the officers 8 knew or should have known he was disabled; and (3) the officers arrested him because of 9 legal conduct related to his disability,” there is no controlling precedent which adopts this 10 rule. See generally Lawman v. City & County of San Francisco, 159 F. Supp. 3d 1130, 11 1147 (N.D. Cal. Feb. 5, 2016); Orr, 2015 WL 848553, at *17. “A decision of a federal 12 district court judge is not binding precedent in either a different judicial district, the same 13 judicial district, or even upon the same judge in a different case.” Camreta v. Green, 563 14 U.S. 692, 709 n.7 (2011). Accordingly, the Court declines to analyze the claim under this 15 standard. 16 Moreover, the Ninth Circuit has stated that a plaintiff seeking to recover on a 17 wrongful arrest under the ADA claim needs to “prove intentional discrimination on the part 18 of the defendant.” Duvall, 260 F.3d at 1138. “This standard is met through a showing of 19 ‘deliberate indifference,’ which ‘requires both knowledge that a harm to a federally 20 protected right is substantially likely, and a failure to act upon that ... likelihood.’” O’Doan 21 v. Sanford, 991 F.3d 1027, 1045 n.3 (9th Cir. 2021). As discussed below, Plaintiffs have 22 failed to raise a genuine issue of material fact regarding deliberate indifference, therefore, 23 the Court denies Plaintiffs’ motion for reconsideration on this ground. 24 2. Reasonable Accommodation 25 Plaintiffs contend that Officer Murrow did not provide a reasonable accommodation 26 because Murrow did not take Silva to the County Jail “to receive psychiatric or medical 27 services,” but instead it was to punish Silva for being under the influence of narcotics. 28 1 (Mot. at 6). Plaintiffs note that SDPD had transported Silva to a mental hospital in the past, 2 and Silva’s mother requested he be transported to a mental hospital, which showed that 3 there was an accommodation available, yet Defendants did not meet their burden to show 4 that the requested accommodation was not feasible or would fundamentally alter the nature 5 of the service, program, or activity, citing 28 C.F.R. § 35.130(b)(7) and Wong v. Regents 6 of University of California, 192 F.3d 807 (9th Cir. 1999). (Id.) Plaintiffs contend that they 7 do not need to show that Officer Murrow intended to harm Silva, but instead can show that 8 Defendants are liable under the ADA because they were deliberately indifferent when they 9 failed to provide a reasonable accommodation to Silva. (Id. at 7). 10 The Court held: 11 Plaintiffs argue that “a reasonable accommodation under the ADA was for Defendant to take Paul in for mental health treatment as the police had done 12 before”, but Officer Murrow transported him to the County Jail where both 13 medical and psychiatric services were ostensibly provided. Though he did not take Silva to a psychiatric hospital, the ADA “prohibits discrimination 14 because of disability, not inadequate treatment for disability.” Simmons, 609 15 F.3d 1022.

16 (Ord. MSJ at 31-32). 17 18 Whether Officer Murrow recognized Silva’s symptoms as indicative of a psychiatric 19 break, or indicative of controlled substance use, a reasonable juror could conclude that 20 Officer Murrow provided a reasonable accommodation by taking Silva to the County Jail 21 because both psychiatric and medical services were available. Moreover, Defendants were 22 not required to rebut Plaintiff’s assertion that the requested accommodation, taking Silva 23 to a hospital, was not feasible. Plaintiffs cite Wong in support of their argument. In Wong, 24 a medical student was dismissed from the academic program despite a diagnosed learning 25 disability. 192 F.3d at 813. The Court found that Wong was required to establish a prima 26 facie case of discrimination based on his disability by producing “evidence that: (1) he is 27 ‘disabled’ as the Acts define that term; (2) he is qualified to remain a student at the School 28 of Medicine, meaning that he can meet the essential eligibility requirements of the school 1 with or without reasonable accommodation; (3) he ‘was dismissed solely because of [his] 2 disability;’ and (4) the school ‘receives federal financial assistance (for the Rehabilitation 3 Act claim) or is a public entity (for the ADA claim).’” Id. at 816. When analyzing the 4 second element, the Court stated that “Wong bears the ‘initial burden of producing 5 evidence’ both that a reasonable accommodation exists and that this accommodation 6 ‘would enable [him] to meet the educational institution's essential eligibility 7 requirements.’” Id. at 816-17(emphasis added). Once that evidence is produced, the burden 8 shifts “to the University to produce rebuttal evidence that either (1) the suggested 9 accommodation is not reasonable (because it would substantially alter the academic 10 program), or (2) that the student is not qualified (because even with the accommodation, 11 the student could not meet the institution's academic standards).” Id. at 817. 12 Here, Plaintiffs claim that they have met their burden to show that a reasonable 13 accommodation existed because they showed that Silva had been transported to the hospital 14 multiple times in the past and Silva’s mother asked that police take him to the hospital 15 therefore the burden shifted to Defendants to rebut this conclusion. Assuming arguendo 16 that Plaintiffs’ have shown that taking Silva to the hospital was a reasonable 17 accommodation, Plaintiffs have not satisfied the second prong to show that “this 18 accommodation ‘would enable [him] to meet the educational institution's essential 19 eligibility requirements,’” or some equivalent to Silva’s situation. Wong, 182 F.3d at 816- 20 17. Plaintiffs omitted discussion of this prong and have not shown an equivalent in the 21 present case, therefore, the burden did not shift to Defendant to produce rebuttal evidence. 22 Accordingly, Plaintiffs’ motion for reconsideration is denied as to this ground. 23 3. Animus or malice 24 Plaintiffs further contend that there is no need to prove that Officer Murrow intended 25 to harm Silva in order to show that Defendants are liable for damages under Title II of the 26 ADA because Plaintiffs can show that Defendants acted with deliberate indifference by 27 failing to provide reasonable accommodation to a disabled person. (Mot. at 7). Because the 28 Court found that Officer Murrow provided a reasonable accommodation to Silva by taking 1 him to a facility where both psychiatric and medical services were provided, Plaintiffs have 2 failed to show that he acted with deliberate indifference under Title II of the ADA. 3 Plaintiffs’ motion for reconsideration is denied on this ground. 4 C. Deliberate Indifference to Serious Medical Needs 5 “[C]laims for violations of the right to adequate medical care ‘brought by pretrial 6 detainees against individual defendants under the Fourteenth Amendment’ must be 7 evaluated under an objective deliberate indifference standard.” Gordon v. County of 8 Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). “[T]he plaintiff must prove more than 9 negligence but less than subjective intent—something akin to reckless disregard.” Id. at 10 1125. “The requisite causal connection can be established not only by some kind of direct 11 personal participation in the deprivation, but also by setting in motion a series of acts by 12 others which the actor knows or reasonably should know would cause others to inflict the 13 constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743-744 (9th Cir. 1978). “An 14 unforeseen and abnormal intervention ... breaks the chain of causality, thus shielding the 15 defendant from [section 1983] liability.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 16 (9th Cir. 1996). 17 Plaintiffs seek reconsideration of this Court’s determination that the actions of the 18 County Jail broke the chain of causation on Plaintiffs deliberate indifference claim 19 regarding Officer Murrow’s actions for the following reasons: (1) the Court applied a 20 subjective standard instead of an objective standard with regard to Officer’s Murrow’s 21 belief that Silva would receive medical and psychiatric care in the County Jail; (2) there is 22 a material fact for the jury’s determination regarding whether Murrow’s failure to 23 communicate Silva’s schizophrenia to the Jail constituted deliberate indifference; and (3) 24 under the “eggshell skull” doctrine, Silva was a particularly vulnerable person and the 25 foreseeability requirement does not apply. (Mot. at 8-9). Plaintiffs contend there are 26 material issues of fact which only a jury should determine regarding whether the actions of 27 County staff were foreseeable. (Mot. at 8). 28 1 The Court analyzed Plaintiffs argument under the deliberate indifference standard 2 set forth in Gordon, finding: “[t]he first and second elements of deliberate indifference are 3 met here because the evidence shows that Officer Murrow made an intentional decision to 4 arrest Silva for being under the influence of methamphetamine, rather than as a mental 5 health hold, and this decision put Silva at substantial risk of not receiving the appropriate 6 medical care for his schizophrenia.” (Order MSJ at 19). However, the Court determined 7 that “Plaintiff has produced no evidence to support the conclusion that Officer Murrow 8 knew or should have known that failing to inform the intake nurse that Silva was an 9 untreated schizophrenic would result in the County neglecting him and performing a 10 forcible extraction that cause Silva’s death.” (Id. at 18-19). The Court found that although 11 Officer Murrow failed to report any information about Silva’s untreated schizophrenia to 12 the Jail, the actions of the County in failing to treat Silva and resorting to a forcible cell 13 extraction were determined to be an unforeseen and abnormal intervention that broke the 14 chain of causality. (Id. at 20). 15 As a primary matter, it was objectively reasonable for an officer to believe that 16 Silva would receive medical and psychiatric treatment, if needed, at the Jail. The Jail 17 handles “those with serious medical challenges, those under psychiatric care” and 18 “provides a wide range of medical and psychiatric services, including on-site dialysis, 19 infectious disease control, and dental care. Services are provided by physicians, 20 psychiatrists, dentists, nurses, and clinical social workers. SDCJ’s Psychiatric 21 Stabilization Unit is the largest acute psychiatric treatment facility in San Diego County.” 22 San Diego Sheriff’s Department, San Diego Central Jail, 23 https://www.sdsheriff.gov/Home/Components/FacilityDirectory/FacilityDirectory/58/. 24 Next, Plaintiffs argue that the events leading up to Silva’s decompensation and 25 eventual death were “created by Murrow’s reporting to the Jail that Paul was under the 26 influence of narcotics” claiming without support that whether something is a foreseeable 27 or unpredictable event is a question of fact for a jury to decide. However, a court may 28 determine whether actions are foreseeable based on the facts at bar, and here, the Jail was 1 || aware of Silva’s schizophrenia diagnosis through independent means. See Van Ort, 92 F.3d 2 837. The intake nurse, Anthony Adraneda, was informed by Silva that he had 3 ||schizophrenia and had been previously treated in a psychiatric hospital, and Adraneda 4 || conducted a review of Silva’s records which confirmed Silva’s self-reported schizophrenia. 5 || Adraneda told Silva he would refer him to a psychiatric doctor. Silva was not treated as a 6 || detainee under the influence who would be placed in a “sobering cell” but instead Silva 7 moved from one temporary holding cell to another for over 36 hours with no toilet 8 || paper, weather appropriate clothing, bedding or food. Under this set of facts, a reasonable 9 ||juror could find that the causal chain was broken. Accordingly, Plaintiffs motion for 10 reconsideration is denied on this ground. 11 Finally, Plaintiffs “eggshell skull” argument is not supported by sufficient facts to 12 ||}show that Defendant inflicted harm upon Silva which resulted in liability for further 13 || physical injury, therefore the Court does not address Plaintiffs’ foreseeability argument and 14 || the motion for reconsideration is denied on this ground. Gibson v. County of Washoe, 290 15 || F.3d 1175, 1192-93 (9" Cir. 2002)(overruled on other grounds in Castro v. County of Los 16 || Angeles, 833 F.3d 1060 (9" Cir. 2016). 17 IV. CONCLUSION 18 For the reasons stated above, the Court DENIES Plaintiffs’ Motion for 19 || Reconsideration. 20 IT IS SO ORDERED. 21 ||Dated: May 22, 2023 cpa fp 23 H . James Lorenz United States District Judge 24 25 26 27 28