Lopez v. The State of Nevada ex rel. Nevada Department of Corrections

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 BONNIE LOPEZ, individually as sister Case No. 2:21-cv-01161-ART-NJK 5 and Special Administrator for the Estate of MELODY MORGAN, 6 deceased; COLLEEN LACKEY, ORDER individually as mother of MELODY 7 MORGAN, deceased, Plaintiffs, 8 v. 9 THE STATE OF NEVADA ex rel. NEVADA DEPARTMENT OF 10 CORRECTIONS, WARDEN DWIGHT NEVEN, individually; GARY 11 PICCININI, ASSISTANT WARDEN, individually; BRYAN SHIELDS, 12 individually; OFFICER JOEL TYNNING, individually; OFFICER 13 KARISSA CURRIER; OFFICER JAZMINA FLANIGAN; NURSE JANE 14 BALAO; NURSE BRIGIDO BAYAWA; NURSE LEILANI FLORES; NURSE 15 ROSEMARY MCCRARY; NURSE MA LITA SASTRILLO; NURSE CHRIS 16 SHIELDS; DOES I through X; and ROE ENTITIES I through X, inclusive, 17 Defendants. 18 19 This case arises out of the tragic death of Melody Morgan (“Morgan”), who 20 died by suicide on April 28, 2018, after hanging herself at Florence McClure 21 Women’s Correctional Center (“Florence McClure”). Plaintiff Bonnie Lopez 22 (“Lopez”) is the special administrator for Morgan’s estate and is also Morgan’s 23 sister. Plaintiff Colleen Lackey (“Lackey”) is Morgan and Lopez’s mother. She 24 brings this action in her own capacity as the mother and as an heir to the 25 decedent. Plaintiffs’ First Amended Complaint (“FAC”) alleges the following causes 26 of action: (1) 42 U.S.C. § 1983 (Eighth Amendment – Deliberate Indifference to 27 Serious Medical Need); (2) 42 U.S.C. § 1983 (Fourteenth Amendment – Loss of 28 Familial Association); (3) Negligence; (4) Wrongful Death; (5) Gross Negligence; (6) 1 Neglect of Vulnerable Person; (7) Negligent Hiring, Training and Supervision; and 2 (8) Professional Negligence. (ECF No. 1-2.) 3 Before the Court is Defendant Lieutenant Karissa Currier’s Motion for 4 Summary Judgment (ECF No. 80.) Also before the Court is Defendant Officer 5 Jazmina Flanigan’s Motion for Summary Judgment. (ECF No. 69.) 6 I. BACKGROUND 7 Plaintiffs allege the following. Decedent Melody Morgan was diagnosed with 8 bipolar disorder, schizophrenia, and multiple personality disorder, and she had 9 approximately three psychiatric hospitalizations. (ECF No. 1-2 at ¶ 31.) Morgan 10 also “had a history of suicidal ideations” and had attempted suicide multiple 11 times since age fourteen. (Id. at ¶ 32.) In December 2012, Morgan was arrested 12 and detained for various criminal charges. While detained, she was placed on 13 suicide watch for suicidal ideation. On December 21, 2012, she attempted suicide 14 and was again placed on suicide watch. (Id. at ¶¶ 33-34.) 15 In 2013, Morgan pled guilty to a felony and was incarcerated at Florence 16 McClure in Las Vegas, Nevada. (Id. at ¶ 36.) Upon admittance at Florence 17 McClure, Morgan’s Presentence Investigation Report, Nevada Department of 18 Corrections Transport Form, and other intake forms identified her mental health 19 issues and suicidal ideations. (ECF No. 117-1 at 2; ECF No. 117-2 at 2-4.) 20 Subsequent evaluations at Florence McClure further documented these mental 21 disorders and suicidal tendencies. (ECF No. 117-3 at 70:23-71:01.) Morgan was 22 later transferred to the Jean Conservation Camp, a minimum-custody camp in 23 Nevada for female offenders. (ECF No. 1-2 at ¶ 38.) On April 19, 2018, Morgan 24 and another incarcerated individual escaped from the Jean Conservation Camp. 25 (Id. at ¶ 39.) Law enforcement apprehended Morgan on April 26, 2018, after her 26 mother, Lackey, reported her location. (Id. at ¶¶ 44–45.) Before law enforcement 27 apprehended Morgan, Lackey told Defendant Officer Bryan Shields that Morgan 28 had a history of mental illness and suicide attempts and requested officials put 1 Morgan on suicide watch because of the risk she would hurt herself if re- 2 captured, especially if she discovered her mother’s role in her reincarceration. (Id. 3 at ¶¶ 40–42.; ECF No. 118-6 at 37:18-38:15; ECF No. 118-3 at 144:19-145:18.) 4 Officer Shields relayed Lackey’s concern to Defendant Lieutenant Karissa Currier 5 at Florence McClure. (ECF No. 1-2 at ¶ 13; ¶ 48.) 6 Lieutenant Currier and Officer Flanigan dispute what happened after this 7 phone call. According to Lieutenant Currier, on April 26, 2018, she called Officer 8 Flanigan to convey Lackey’s concerns to medical staff and have Morgan placed 9 on suicide watch. (ECF No. 118-8 at 37:20-39:10.) Lieutenant Currier claims that 10 she ordered Officer Flanigan to inform the medical staff at Florence McClure of 11 Lackey’s concern, but Officer Flanigan denies that Lieutenant Currier gave her 12 that command. (ECF No. 1-2 at ¶ 14; ¶¶ 49–50.) Officer Flanigan testified that if 13 she had received such a call, she would have written it down in her notes, added 14 the information to a shift log entry on her computer, asked follow up questions, 15 and notified medical staff. (ECF No. 118-9 at 38:13-39:25.) Officer Flanigan 16 stated that she checked her personal notes and shift log and neither documented 17 the April 26 call; however, she did not keep her personal notes. (ECF No. 115-9 18 at 43:01-43:25.) Lieutenant Currier did not document the call in a shift log either, 19 although she stated in her deposition that shift command officers do not complete 20 shift logs. (ECF No. 115-8 at 47:12-47:15.) 21 Following Morgan’s apprehension, law enforcement took Morgan to 22 Florence McClure on April 26, 2018. (ECF No. 1-2 at ¶ 51.) Morgan was informed 23 that her mother had assisted in locating her. (Id. at ¶ 46.) The Florence McClure 24 medical staff neither received any messages regarding Lackey’s concerns nor 25 conducted a psychological or psychiatric evaluation of Morgan. (Id. at ¶ 56.) 26 Nurse Bayawa claims that if medical staff had received information concerning 27 Morgan’s high suicide risk, then Morgan may have been placed in a suicide room, 28 which is a stripped cell with a camera, suicide blanket, and check ins every 15 1 minutes. (ECF No. 115-11 at 60:23-62:22.) Two days later, on April 28, 2018, 2 Morgan hanged herself in her cell at Florence McClure. (ECF No. 1-2 at ¶ 56; 58.) 3 On May 7, 2018, Lieutenant Currier wrote an incident report. In the report, 4 she stated that she had immediately called the infirmary after receiving Lackey’s 5 concerns from Officer Shields. Later, she was asked who she talked to, but she 6 could not recall at the time. She later remembered that she had spoken to Officer 7 Flanigan. When she called Officer Flanigan to discuss the call, Officer Flanigan 8 said that she did not recall having the conversation. (ECF No. 115-10 at 2.) 9 III. LEGAL STANDARD 10 The Federal Rules of Civil Procedure provide for summary adjudication 11 when the pleadings, depositions, answers to interrogatories, and admissions on 12 file, together with the affidavits, if any, show that “there is no genuine dispute as 13 to any material fact and the movant is entitled to judgment as a matter of law.” 14 Fed. R. Civ. P. 56(a). A party asserting or disputing a fact “must support the 15 assertion by … citing to particular parts of materials in the record, including 16 depositions, documents, electronically stored information, affidavits or 17 declarations, stipulations (including those made for purposes of the motion only), 18 admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). 19 Material facts are those that may affect the outcome of the case. See Anderson v. 20 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 21 genuine if there is a sufficient evidentiary basis on which a reasonable fact-finder 22 could rely to find for the nonmoving party. Id. 23 In determining summary judgment, courts apply a burden-shifting 24 analysis. A party seeking summary judgment bears the initial burden of 25 demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. 26 Catrett, 477 U.S. 317, 323 (1986). When the nonmovant bears the burden at trial, 27 as is the case here, the movant can meet its burden by either (1) presenting 28 evidence to negate an essential element of the nonparty’s case; or (2) by 1 demonstrating that the non-moving party failed to make a showing sufficient to 2 establish an element essential to that party’s case. See id. at 323-24. After the 3 movant has met its burden, the burden shifts to the nonmovant to come forward 4 with specific facts showing a genuine issue of material fact remains for trial. 5 Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). 6 Although “[o]n summary judgment the inferences to be drawn from the 7 underlying facts…must be viewed in the light most favorable to the party 8 opposing the motion,” id. (quoting United States v. Diebold, Inc., 369 U.S. 654, 9 655 (1962)), the non-movant “must do more than simply show that there is some 10 metaphysical doubt as to the material facts.” Id. at 586-87 (internal citations 11 omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s 12 position will be insufficient.” Anderson, 477 U.S. at 252. In other words, the non- 13 moving party cannot avoid summary judgment by “relying solely on conclusory 14 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th 15 Cir. 1989) (citing Angel v. Seattle-First Nat. Bank, 653 F.2d 1293, 1299 (9th Cir. 16 1981)). Instead, to survive summary judgment, the opposition must go beyond 17 the assertions and allegations of the pleadings and set forth specific facts by 18 producing admissible evidence that shows a genuine issue for trial. See Celotex 19 Corp., 477 U.S. at 324. 20 If the moving party presents evidence that would call for judgment as a 21 matter of law at trial if left uncontroverted, then the respondent must show by 22 specific facts the existence of a genuine issue for trial. Anderson, 477 U.S. at 250. 23 “If, as to any given material fact, evidence produced by the moving party. . . 24 conflicts with evidence produced by the nonmoving party . . . we must assume 25 the truth of the evidence set forth by the nonmoving party with respect to that 26 material fact.” Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). If 27 reasonable minds could differ on material facts, summary judgment is 28 inappropriate because summary judgment’s purpose is to avoid unnecessary 1 trials only when the material facts are undisputed; if not, the case must proceed 2 to the trier of fact. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995) 3 (citing Lindahl v. Air France, 930 F.2d 1434, 1436 (9th Cir. 1991)). 4 IV. ANALYSIS 5 A. EIGHTH AMENDMENT CLAIMS 6 The Court must determine whether Defendants Currier and Flanigan 7 potentially violated the Eighth Amendment. Prison officials violate the Eighth 8 Amendment's cruel and unusual punishments clause when they are “deliberately 9 indifferent” to a prisoner's “serious medical needs.” Estelle v. Gamble, 429 U.S. 10 97, 102–05 (1976). Such a violation “may appear when prison officials deny, delay 11 or intentionally interfere with medical treatment, or it may be shown by the way 12 in which prison officials provide medical care.” Hutchinson v. United States, 838 13 F.2d 390, 394 (9th Cir. 1988) (citing Estelle, 429 U.S. at 105); see also Stewart v. 14 Aranas, 32 F.4th 1192, 1195 (9th Cir. 2022) (requiring a prisoner to demonstrate 15 that any alleged delay in medical care led to further injury). 16 A claim for deliberate indifference to serious medical need can be asserted 17 by a pretrial detainee or a prisoner. Horton by Horton v. City of Santa Maria, 915 18 F.3d 592, 599 (9th Cir. 2019) (discussing standards for deliberate indifference). 19 A pretrial detainee’s claim of deliberate indifference is brought as a Due Process 20 violation under the Fourteenth Amendment, while a prisoner’s similar claim is a 21 violation of the Eighth Amendment. Id. As explained in Horton, while the elements 22 of both claims are the same, they differ in the required showing of deliberate 23 indifference. Id. at 602. To demonstrate deliberate indifference, the plaintiff must 24 show two things: (1) “a serious medical need by demonstrating that failure to 25 treat a prisoner’s condition could result in further significant injury or the 26 unnecessary and wanton infliction of pain”; and (2) “the defendant’s response to 27 the need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th 28 Cir. 2006) (internal citations and quotations omitted). 1 The Ninth Circuit differentiated these claims in Gordon in 2018 when it 2 held that a pretrial detainee’s Fourteenth Amendment claim for deliberate 3 indifference is analyzed under a “purely objective standard.” Horton, 915 F.3d at 4 602 (citing Gordon v. County of Orange, 888 F.3d 1118, 1125-26 (9th Cir. 2018)). 5 Under Gordon, to prove deliberate indifference a pretrial detainee must show that 6 there was “a substantial risk of serious harm to the plaintiff that could have been 7 eliminated through reasonable and available measures that the officer did not 8 take, thus causing injury that the plaintiff suffered.” Id. (quoting standard from 9 Castro, 833 F.3d at 1068-71, that was adopted in Gordon, 888 F.3d at 1125-26). 10 In contrast, a prisoner’s claim for deliberate indifference under the Eighth 11 Amendment is analyzed under a partially subjective standard that requires a 12 plaintiff to show “an objective risk of harm and a subjective awareness of that 13 harm.” Id. at 600, citing Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), 14 vacated, 563 U.S. 915 (2011), opinion reinstated in relevant part, 658 F.3d 897 15 (9th Cir. 2011) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 16 Because the serious medical need here involved risk of suicide, the Ninth 17 Circuit’s holdings in Conn and Clouthier v. County of Contra Costa, 591 F.3d 1232, 18 1241-43 (9th Cir. 2010) are particularly relevant. See Conn, 591 F.3d at 1105 19 (reversing summary judgment in favor of officers who failed to report risk of 20 detainee’s suicide attempt and threats); Clouthier, 591 F.3d at 1254 (reversing 21 summary judgment in favor of mental health worker who removed suicide 22 prevention measures). Although Conn and Clouthier each concerned pretrial 23 detainees, both cases were decided before Gordon, so the court analyzed the 24 claims under the then-current, Eighth Amendment test. Horton, 915 F.3d 592 25 (citing Conn, 591 F.3d at 1095)). To show deliberate indifference in Conn, the 26 plaintiff was required to show “an objective risk of harm and a subjective 27 awareness of that harm.” Horton, 915 F.3d 592 (citing Conn, 591 F.3d at 1095)). 28 Because Morgan was a prisoner, the claims here are governed by the Eighth 1 Amendment standard, which is the same standard applied in Conn and Clouthier. 2 1. Serious Medical Need 3 Plaintiffs have demonstrated “a serious medical need.” The Ninth Circuit 4 has held that “[a] heightened suicide risk or an attempted suicide is a serious 5 medical need.” Conn, 591 F.3d at 1095 (citing, inter alia, Doty v. County of Lassen, 6 37 F.3d 540, 546 (9th Cir. 1994)). “The requirements for mental health care are 7 the same as those for physical health care needs.” Doty 37 F.3d at 546. While 8 Conn involved Fourteenth Amendment Due Process claims brought on behalf of 9 a pretrial detainee, the “serious medical need” analysis is the same for prisoner 10 Eighth Amendment claims. Id. Here, Lackey informed Officer Shields that Morgan 11 had hurt herself and attempted suicide in the past and would do so again if she 12 was re-incarcerated, especially given her mother’s role in locating her. (ECF No. 13 1-2 at ¶¶ 40-42, 47.) Thus, the Court finds Plaintiffs’ circumstances “satisf[y] the 14 objective component of a serious medical need.” Kamakeeaina v. City & Cty. of 15 Honolulu, No. CIV. 11-00770 JMS, 2014 WL 1691611, at *7 (D. Haw. Apr. 29, 16 2014), aff'd sub nom. Kamakeeaina v. Maalo, 680 F. App'x 631 (9th Cir. 2017) 17 (finding statements made by plaintiff to the defendants that plaintiff was “ready 18 to commit suicide” were sufficient to show a serious medical need). 19 2. Indifference to that Need 20 To prove deliberate indifference under the Eighth Amendment, Plaintiffs 21 must meet a “‘subjective deliberate indifference’ standard.” Sandoval v. County of 22 San Diego, 985 F.3d 657, 667 (9th Cir. 2021) (internal citations omitted). This 23 requires Plaintiffs to show that defendants were “(a) subjectively aware of the 24 serious medical need and (b) failed to adequately respond.” Conn, 591 F.3d 1081 25 at 1096 (internal citations omitted) (emphasis in original). In Conn, the court 26 reversed summary judgment in favor of officer defendants who failed to make any 27 report of a detainee’s concerning behavior because a genuine issue of fact existed 28 as to whether defendants were subjectively aware of a detainee’s suicidal 1 ideations and self-harm when she tried to choke herself and screamed “kill me or 2 I’ll kill myself”. 591 F.3d at 1097-98. In Clouthier, the court reversed summary 3 judgment in favor of a mental health specialist because a genuine issue of 4 material fact existed as to whether they were deliberately indifferent to pretrial 5 detainee’s substantial risk of suicide when they removed suicide prevention 6 measures and neglected to determine if the detainee needed additional care 7 despite evidence they were on notice of the detainee’s substantial risk of suicide. 8 591 F.3d at 1244-45. 9 Turning to Lieutenant Currier and Officer Flanigan, the question is whether 10 they were subjectively aware of Morgan’s risk of suicide and failed to adequately 11 respond. See Conn, 591 F.3d 1081 at 1096. “Officer Shields notified Defendant 12 Currier of Plaintiff Lackey’s concern about the high risk of Morgan committing 13 suicide.” (ECF No. 1-2 at ¶ 48.) Thus, Lieutenant Currier had personal knowledge 14 of Morgan’s heightened suicide risk. While Lieutenant Currier disputes that she 15 “knew Morgan was in substantial danger of imminent suicide or that Currier’s 16 purported actions would be likely to increase that danger,” (ECF No. 80 at 15) 17 (emphasis in original) a reasonable factfinder could find Officer Shield’s message 18 clearly conveyed the high risk of Morgan committing suicide. The Court finds 19 Plaintiffs’ allegations sufficient to raise a genuine issue of material fact as to 20 whether Lieutenant Currier (or Officer Flanigan if Lieutenant Currier conveyed to 21 her lackey’s concerns) failed to adequately respond to Morgan’s known suicide 22 risk. 23 Defendants Lieutenant Currier and Officer Flanigan dispute whether 24 Lieutenant Currier informed Officer Flanigan of Lackey’s concerns. (ECF No. 1-2 25 at ¶¶ 49-50.) Failure to report a prisoner's suicidal ideations is not an adequate 26 response to such a serious medical need. See Conn, 591 F.3d at 1098. Although 27 both defendants cite to Spears v. Ruth, 589 F.3d 249, 255 (6th Cir. 2009) for the 28 proposition that failing to inform medical staff “was at worst negligent and does 1 not rise to the level of a constitutional violation” (ECF Nos. 69 at 20; 80 at 17- 2 18), that Sixth Circuit case is not binding and concerned a very different factual 3 scenario. While the officer in Spears allegedly failed to report certain information 4 about the decedent to EMTs, he knew EMTs conducted a medical assessment 5 and determined the decedent did not need to be transported to the hospital. 589 6 F.3d 249, 255-56 (6th Cir. 2009). By contrast, there is nothing in this record 7 indicating that Lieutenant Currier or Officer Flanigan knew for certain that 8 medical staff would perform a mental health assessment, and in fact medical staff 9 never did so. In Conn, the defendants did not even attempt to argue failing to 10 report a serious risk of suicide was an appropriate response. 591 F.3d at 1098. 11 Plaintiff has provided sufficient evidence for a reasonable jury to find that 12 Lieutenant Currier and Officer Flanigan were deliberately indifferent by failing to 13 report Morgan’s high risk of suicide based on Inspector Shields’ statement that 14 he relayed Lackey’s concerns about Morgan’s suicide to Lieutenant Currier, who 15 claims that she called Officer Flanigan to relay these concerns, and Nurse 16 Bayawa’s testimony that the nurses never received this information. (ECF Nos. 17 1-2 at ¶ 13, ¶ 48; 115-11 at 60:23-61:06;118-8 at 37:20-38:19.) 18 3. Causation 19 Finally, the Court must determine whether the alleged deliberate 20 indifference was both an actual and a proximate cause of Plaintiffs’ harm. Castro, 21 797 F.3d at 667 (citing Lemire v. Cal. Dep’t of Corr. & Rehab, 726 F.3d 1062, 1074 22 (9th Cir. 2013)). This causation analysis applies to both Eighth and Fourteenth 23 Amendment claims. See Gordon, 888 F.3d at 1125 (describing the requirements 24 for a pretrial detainee’s Fourteenth Amendment medical care claim, including a 25 causation requirement); Lemire, 726 F.3d at 1074 (citing Conn, 591 F.3d at 1098- 26 01) (explaining that Eighth Amendment deliberate indifference claims require a 27 showing of both actual and proximate cause). Answering the question of whether 28 Morgan suffered sufficient harm, is straightforward. Morgan ended her life, which 1 constitutes harm sufficient to defeat summary judgment. 2 The second question calls for a deeper analysis. Conduct is an actual cause 3 of injury “only if the injury would not have occurred ‘but for’ that conduct.” White 4 v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990) (internal citations omitted). Actual 5 or “but-for” causation is “purely a question of fact.” Robinson v. York, 566 F.3d 6 817, 825 (9th Cir. 2009). “Once it is established that the defendant's conduct has 7 in fact been one of the causes of the plaintiff's injury, there remains the question 8 whether the defendant should be legally responsible for the injury”—in other 9 words, whether the defendant's actions were a proximate cause. White, 901 F.2d 10 at 1506. While a defendant “‘is not the proximate cause of [the plaintiff]’s alleged 11 injuries if another cause intervenes and supersedes their liability for the 12 subsequent events[,] . . . foreseeable intervening causes . . . will not supersede 13 the defendant's responsibility.’” Conn, 591 F.3d at 1101 (quoting White, 901 F.2d 14 at 1506). “‘If reasonable persons could differ’ on the question of causation then 15 ‘summary judgment is inappropriate and the question should be left to a jury.’” 16 Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1080 (9th Cir. 2013) 17 (quoting White, 901 F.2d at 1506). 18 At issue is whether Lieutenant Currier and Officer Flanigan's alleged failure 19 to notify Florence McClure’s medical staff about Morgan’s being a suicide risk is 20 causally linked to her death. Lieutenant Currier and Officer Flanigan both 21 contend that Plaintiffs’ own theory of the case is that the medical staff should 22 have conducted a mental health assessment, detected any suicide risk, and put 23 Morgan on suicide watch even without knowing about Lackey’s concerns. Thus, 24 they argue Plaintiffs do not even present a theory causally linking defendants’ 25 failure to relay Lackey’s concern to the medical staff and the lack of a mental 26 health assessment. Both defendants claim this lack of causation entitles them to 27 summary judgment on all claims against them. (ECF No. 69 at 9; ECF No. 80 at 28 8.) Plaintiffs counter that medical staff’s failure to do an intake of Morgan does 1 not relieve Lieutenant Currier or Officer Flanigan of their duties and that their 2 failure to pass along Lackey’s suicide concerns arguably led to Morgan taking her 3 own life. (ECF No. 118 at 24.) 4 Nurse Bayawa’s testimony demonstrates that medical staff may have 5 treated Morgan differently if they had been alerted by Lieutenant Currier or 6 Officer Flanigan that she was a suicide risk. Specifically, Nurse Bayawa testified 7 that medical staff treat “a report from an officer, a caseworker, anybody in NDOC” 8 as “100 percent acute” and medical staff would have placed Morgan in a suicide 9 room and called a psychologist from the mental health department to conduct a 10 screening. (ECF No. 118-5 (Deposition transcript of Bayawa) at 60:23-62:14.) She 11 further explained that Morgan may not have been housed differently based on a 12 general, less specific concern for her mental health because “[t]he standing 13 classification of [Morgan], even for years, was 1-1 in mental” meaning “[t]hat she’s 14 very stable.” (Id. at 56:01-56:13.) This evidence indicates that a reasonable jury 15 could find that Lieutenant Currier or Officer Flanigan’s failure to report that 16 Morgan was a suicide risk is causally linked to her death because if they had 17 reported the information, medical staff would have responded differently, and 18 Morgan may have received treatment that prevented her suicide. (Id. at 62:04- 19 62:22.) 20 Based on these facts, the Court is satisfied that Plaintiffs presented 21 sufficient evidence of actual and proximate causation to defeat summary 22 judgment and give rise to a jury question whether Lieutenant Currier’s and 23 Officer Flanigan’s alleged inactions caused Morgan’s eventual suicide. Conn, 591 24 F.3d at 1098. Regarding actual cause, construing all the evidence in the light 25 most favorable to Plaintiffs, the Court finds that a reasonable jury could conclude 26 that Lieutenant Currier or Officer Flanigan failed to pass along Lackey’s concern 27 to the Florence McClure medical staff, and that was a but-for cause of Morgan’s 28 suicide. 1 As for proximate cause, the Court finds that Plaintiff has “presented 2 sufficient evidence of foreseeability that the question of proximate cause must be 3 decided by a jury.” Id. at 1102. The Ninth Circuit's decision in Conn is instructive. 4 There, a pretrial detainee, Brenda Clustka, committed suicide while housed in 5 the Washoe County Jail in Reno, Nevada. Id. at 1091. Two days before Clustka's 6 suicide, the defendant police officers picked Clustka up in a paddy wagon after 7 they found her intoxicated on the sidewalk. Id. at 1092. On the way to the jail, 8 Clustka attempted suicide by wrapping her seatbelt around her neck; when the 9 defendants stopped to intervene and restrain her, “[s]he yelled something to the 10 effect of, ‘You lied to me. Just kill me. I'll kill myself then.’” Id. When they arrived 11 at the jail, the defendants did not “notif[y] jail personnel that Clustka had tried 12 to choke herself or that she had threatened to commit suicide[, and] . . . did not 13 write a report nor inform their supervising sergeant about the incident that day.” 14 Id. After being released from jail, Clustka was taken to an emergency room where 15 she was admitted for observation and, shortly after being released from the 16 hospital, she was arrested and taken back to the Washoe County Jail. Id. at 1093. 17 At the emergency room and during the jail intake process, medical officials—none 18 of whom knew about Clustka's previous suicide attempt—screened Clustka and 19 determined that they did not need to put Cluska on suicide watch. Id. The 20 morning after she was booked in jail, Clustka committed suicide. Id. 21 Based on these facts, the Ninth Circuit found that the plaintiffs “presented 22 sufficient evidence of actual and proximate causation to defeat summary 23 judgment and give rise to a jury question whether the officers’ omissions caused 24 Clustka's eventual suicide.” Id. at 1098. The Ninth Circuit rejected the 25 defendants’ argument that the medical screenings that occurred after they failed 26 to report the attempted suicide were an intervening cause, noting that, “[w]hen 27 medical examiners have insufficient information about the patient they are 28 diagnosing, they are likely to give an inaccurate diagnosis.” Id. at 1101. By failing 1 to report Clustka's choking and threat of suicide, the officers deprived medical 2 staff of critical information for their evaluation. More important, by doing so, they 3 foreseeably undermined the detainee’s access to effective medical evaluations and 4 adequate mental health care. Id. 5 If Lieutenant Currier or Officer Flanigan had informed any medical staff 6 about Morgan’s suicidal state, then the message might have prompted and 7 informed examinations, potentially leading to accurate diagnoses and an 8 acceptable response. Thus, Plaintiff has pointed to sufficient evidence tending to 9 prove that Morgan’s suicide was a foreseeable consequence of Lieutenant Currier 10 or Officer Flanigan failing to communicate Lackey’s concerns. A jury could 11 reasonably conclude that their alleged inaction was a moving force and proximate 12 cause of Morgan’s suicide. 13 In sum, the Court finds Plaintiffs’ allegations sufficient to show genuine 14 issues of material facts as to whether Lieutenant Currier and Officer Flanigan 15 were deliberately indifferent to Morgan’s heightened risk of suicide in violation of 16 the Eighth Amendment. 17 B. FOURTEENTH AMENDMENT CLAIMS 18 Next, the Court turns to Plaintiffs’ Fourteenth Amendment claims for 19 impermissible interference with familial association against Lieutenant Currier 20 and Officer Flanigan. Officers violate the Fourteenth Amendment’s substantive 21 due process protections when their “conduct ‘shocks the conscience.’” Nicholson 22 v. City of Los Angeles, 935 F.3d 685, 692-93 (9th Cir. 2019) (quoting Wilkinson v. 23 Torres, 610 F.3d 546, 554 (9th Cir. 2010)). The proper analysis turns on whether 24 the officer had time to deliberate prior to the conduct at issue. “Where actual 25 deliberation is practical, then an officer’s deliberate indifference may suffice to 26 shock the conscience.” Tatum v. Moody, 768 F.3d 806, 821 (quoting Wilkinson, 27 610 F.3d at 554). In contrast, if “a law enforcement officer makes a snap judgment 28 because of an escalating situation, his conduct may only be found to shock the 1 conscience if he acts with a purpose to harm unrelated to legitimate law 2 enforcement objectives.” Id. 3 Here, Parties agree that deliberate indifference is the proper standard. (ECF 4 Nos. 69 at 17-21; 80 at 15-18; 115 at 15-16.) Lieutenant Currier and Officer 5 Flanigan clearly had time to deliberate whether to inform medical staff of Lackey’s 6 concerns. Lieutenant Currier spoke to Officer Shields the morning of April 26, 7 2018 and allegedly called Officer Flannigan immediately after to relay the 8 information. (ECF No. 115-10 at 2.) Morgan committed suicide on April 28, 9 meaning defendants had two days to inform medical staff of Morgan’s high risk 10 of suicide. (Id.) As discussed in the Eighth Amendment section, since this Court 11 finds Plaintiffs’ allegations sufficient to raise a genuine issue of material fact 12 concerning whether Currier and Flanigan acted with deliberate indifference, the 13 Court denies their motions for summary judgment. See Lemire, 726 F.3d at 1075 14 (citing County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998) (“Just as the 15 deliberate indifference of prison officials to the medical needs of prisoners may 16 support Eighth Amendment liability, such indifference may also ‘rise to the 17 conscience-shocking level’ required for a substantive due process violation.”) 18 C. STATE LAW CLAIMS 19 Because this Court finds that a jury must resolve the question of actual 20 and proximate cause, it would be inappropriate to grant Lieutenant Currier’s and 21 Officer Flanigan’s requests for summary judgment on the state law claims. In 22 their motions for summary judgment, Lieutenant Currier and Officer Flanigan 23 argue “[t]he lack of causation also warrants summary judgment on the state law 24 claims, which require actual and proximate cause.” (ECF No. 69 at 17; ECF No. 25 80 at 14-15.) However, as discussed above, a jury could reasonably conclude 26 Lieutenant Currier’s and Officer Flanigan’s purported inaction was both an actual 27 and proximate cause of Morgan’s death. 28 /// 1 D. QUALIFIED IMMUNITY 2 Having found Plaintiffs raised a genuine issue of material fact as to whether 3 Lieutenant Currier and Officer Flanigan violated state law and the Eighth and 4 Fourteenth Amendments, the Court must now determine whether qualified 5 immunity applies. Qualified immunity shields certain government officials from 6 liability unless their conduct violates “clearly established statutory or 7 constitutional rights of which a reasonable person would have known.” Hope v. 8 Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 9 (1982)). The point of shielding officials from liability except when they violate 10 “clearly established” rights is to “ensure that before they are subjected to suit, 11 officers are on notice their conduct is unlawful.” Id. (quoting Saucier v. Katz, 533 12 U.S. 194, 206 (2001)). Nonetheless, officials who violate statutory or 13 constitutional rights knowingly or through plain incompetence are not shielded 14 from liability. Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft v. 15 al-Kidd, 563 U.S. 731, 743 (2011)). Thus, if “every ‘reasonable official would have 16 understood that what he is doing violates that right,’” then the right is clearly 17 established, and qualified immunity does not provide a defense. See al-Kidd, 563 18 U.S. at 741. For a constitutional or statutory right to be clearly established, there 19 does not need to be a factually indistinguishable case spelling out liability, but 20 existing precedent “must have placed the statutory or constitutional question 21 beyond debate.” Id. 22 The Ninth Circuit has held that “[i]t is clearly established that the Eighth 23 Amendment protects against deliberate indifference to a detainee's serious risk 24 of suicide.” Conn, 591 F.3d at 1102 (citing Cabrales v. Cty. of Los Angeles, 864 25 F.2d 1454 (9th Cir. 1988), cert. granted and judgment vacated, 490 U.S. 1087 26 (1989); Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003); Colburn v. Upper 27 Darby Tp., 946 F.2d 1017, 1023 (3d Cir. 1991)). “When a [prisoner] attempts or 28 threatens suicide . . ., it is obvious that the [official] must report the incident to 1 those who will next be responsible for her custody and safety.” Conn, 591 F.3d at 2 1102 (citing Cabrales v. Cty. of Los Angeles, 864 F.2d 1454 (9th Cir. 1988), cert. 3 granted and judgment vacated, 490 U.S. 1087 (1989). 4 Contrary to Defendants argument, the Ninth Circuit’s decision in Horton 5 fails to support their claim of qualified immunity. In Horton, the Ninth Circuit 6 confirmed that Conn and Clouthier supplied clearly established law on deliberate 7 indifference to risk of suicide. Horton, 915 F.3d at 600-601 (discussing Conn and 8 Clouthier). The court distinguished Horton because it involved very different facts, 9 explaining that at the time of the incident in Horton the court “had held that 10 officers who failed to provide medical assistance to a detainee should have known 11 that their conduct was unconstitutional in two instances, neither of which 12 resemble the facts of this case.” Id. In Conn, the court rejected qualified immunity 13 because “when a detainee attempts or threatens suicide on en route to the jail, it 14 is obvious that the transporting officers must report the incident to those who 15 will next be responsible for her custody and safety.” Horton, 915 F.3d at 601 16 (citing Conn, 591 F.3d at 1102). In Clouthier, the court rejected qualified 17 immunity because “a reasonable mental health professional could not have 18 thought that it was lawful to remove key suicide prevention measures put in place 19 by a prior Mental Health staff member.” Horton, 915 F.3d at 600 (citing Clouthier, 20 591 F.3d at 1244-45). 21 Horton involved very different facts than Conn and Clouthier because the 22 risk of suicide was not clear and the timeline was much shorter. In Conn and 23 Clouthier it was clear that the detainees were suicidal (or on suicide watch in 24 Clouthier) within days of their suicides. Horton, 915 F.3d at 601. In Horton the 25 risk of suicide was not clear because there was evidence casting doubt on the 26 likelihood of suicide, including Horton’s cooperative behavior, his girlfriend’s 27 statements, and the fact that medical professionals had concluded he was not 28 suicidal two weeks earlier. Horton, 915 F.3d at 601. Also, Horton had been left 1 alone less than thirty minutes before attempting to commit suicide, so the 2 window of knowledge and opportunity to respond was much shorter than in Conn 3 and Clouthier. See Conn, 591 F.3d at 1091 (detainee committed suicide some 48 4 hours after suicidal threats); Clouthier, 591 F.3d at 1237-40 (detainee jailed for 5 several days before suicide prevention measures were removed). Based on these 6 factual differences, the court held in Horton that qualified immunity applied 7 because a reasonable officer would not have known that failing to attend to 8 Horton immediately would be unlawful under the law at the time of the incident. 9 Horton, 915 F.3d at 601. 10 This case is governed by Conn because the risk of suicide was clear and 11 two days passed between Morgan’s apprehension and her suicide, so Currier or 12 Flanigan knew of and failed to report Morgan’s suicide risk. Id. at 601; (ECF No. 13 1-2 at ¶ 56; 58). This case aligns with the Ninth Circuit’s approach in NeSmith v. 14 Olsen, 808 Fed. Appx. 442, 444-45 (9th Cir. 2020), which relied on Conn and 15 Clouthier and distinguished Horton. In NeSmith, the Ninth Circuit held that 16 NeSmith’s rights were clearly established when prison officials observed a rope 17 hanging from NeSmith’s light the night before his suicide yet failed to take any 18 preventative measures, primarily relying on the Ninth Circuit’s prior decisions in 19 Conn and Clouthier. Although the defendants tried to rely on Horton, the Ninth 20 Circuit distinguished that case because “Horton had made no clear threat of 21 suicide or suicide attempt.” NeSmith, 808 Fed. Appx. at 445 (citing Horton, 915 22 F.3d at 601). Here as in NeSmith, the risk of suicide was known, and the timeline 23 would have allowed Currier or Flanigan to report or respond to that risk. 24 A reasonable jury could conclude that Morgan posed an objectively serious risk 25 of suicide, that Lieutenant Currier or Officer Flanigan was subjectively aware of 26 that risk yet failed to respond, and that Plaintiff suffered harm as a result. On 27 the current disputed record, “a grant of summary judgment ... with regard to 28 qualified immunity would be inappropriate.” Id. (denying qualified immunity in 1 || Fourteenth Amendment detainee suicide case applying Eighth Amendment 2 || framework because “it is obvious” officers must report suicide attempts or threats 3 || to “those who will next be responsible for her custody and safety”); see also Ortega 4 || v. O'Connor, 146 F.3d 1149, 1154 (9th Cir. 1998) (“Courts should decide issues 5 || of qualified immunity as early in the proceedings as possible, but when the 6 || answer depends on genuinely disputed issues of material fact, the court must 7 || submit the fact-related issues to the jury.”) (citing Liston v. Cty. of Riverside, 120 8 || F.3d 965, 975 (9th Cir. 1997); Act Up!/ Portland v. Bagley, 988 F.2d 868, 873 (9th 9 || Cir. 1993)) (“If a genuine issue of fact exists preventing a determination of 10 || qualified immunity at summary judgment, the case must proceed to trial.”) 11 || IV. CONCLUSION 12 It is therefore ordered that Defendant Lieutenant Currier’s Motion for 13 || Summary Judgment (ECF No. 80) and Defendant Officer Flanigan’s Motion for 14 || Summary Judgment (ECF No. 69) are denied. 15 16 DATED THIS 29t) day of September 2023. 17 18 an Apes Vawtact 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28