Fitzpatrick v. Las Vegas Metro. Police Dep't
| Decision Date | 03 February 2020 |
| Docket Number | Case No.: 2:17-cv-01886-JAD-BNW |
| Parties | Patricia Fitzpatrick and Robert L. Ansara, as special co-administrators and special representatives of the Estate of Jeremiah Bowling, deceased; and Patricia Fitzpatrick, as heir and mother of Jeremiah Bowling, deceased, Plaintiffs v. Las Vegas Metropolitan Police Department, et al., Defendants |
| Court | U.S. District Court — District of Nevada |
Order Granting Defendant Naphcare Inc.'s Motion to Dismiss, Overruling Defendant LVMPD's Objection to the Magistrate Judge's Order Granting Plaintiffs' Motion to Compel, and Granting in Part and Denying in Part Defendants' Motion for Summary Judgment
This civil-rights action arises out of Jeremiah Bowling's death at the hands of his cellmate Franklin Sharp while they were inmates at Clark County Detention Center (CCDC). Bowling's representatives, Patricia Fitzpatrick and Robert L. Ansara,1 sue the Las Vegas Metropolitan Police Department (LVMPD); Corrections Officers Thomas Streimer, Angelo Larry, Rolando Trevino; and Naphcare Inc., the detention center's contracted medical provider, asserting constitutional and tort claims premised on the theory that Naphcare, LVMPD, and various staff members are responsible for Bowling's death because Sharp had a history of attacking his cellmates and staff.2
Naphcare moves to dismiss the claims against it, arguing that Fitzpatrick failed to attach an expert affidavit as required under Nevada law when pleading medical-negligence claims, andthat Fitzpatrick has not shown that Naphcare is liable under Monell for her constitutional claims.3 Because I find that the factual allegations against Naphcare are too thin for me to find plausible claims, I grant the motion to dismiss, but I give Fitzpatrick until February 13, 2020, to file an amended complaint.
LVMPD and each of the three officers object to Magistrate Judge Brenda Weksler's ruling granting in part and denying in part Fitzpatrick's motion to compel production of inmate-locator cards that CCDC used for Bowling and Sharp and to complete the deposition of LVMPD's Rule 30(b)(6) witness.4 Defendants' objection concerns only the timeliness of the motion to compel, which Fitzpatrick filed after the discovery and dispositive-motion deadlines. I find that the magistrate judge's order was neither clearly erroneous nor contrary to law. And because she outlined the unusual circumstances that warranted her consideration of the late motion to compel, I overrule the defendants' objection.
LVMPD and each of the three officers also move for summary judgment on Fitzpatrick's claims under 42 U.S.C. § 1983 for deprivation of Bowling's constitutional rights and a state-law wrongful-death claim, arguing that the officers were not aware that Sharp posed a significant risk of substantial harm to Bowling and therefore could not be deliberately indifferent to his safety. Alternatively, they argue that they are entitled to qualified and discretionary immunity for the federal and state claims. Defendants also argue that there is no evidence of a widespread policy showing that LVMPD was deliberately indifferent to inmate safety as required to establish Monell liability.5 Because Fitzpatrick concedes that summary judgment is appropriate forofficers Larry and Trevino, I grant summary judgment in favor of those defendants on all claims. I also grant summary judgment to LVMPD because Fitzpatrick has not shown that there was a department-wide policy that demonstrated a deliberate indifference to inmate safety. But genuine issues of material fact about whether Officer Streimer heard Sharp attack Bowling minutes before his last visual check and whether he conducted a proper visual check prevent me from granting summary judgment in favor of Officer Streimer. These same open factual questions prevent me from granting Officer Streimer summary judgment on Fitzpatrick's wrongful-death claim.
On August 6, 2016, Jeremiah Bowling was arrested and transported to CCDC for grand larceny auto.6 Bowling pleaded guilty to the charge and remained at CCDC while awaiting formal sentencing.7 Bowling did not have a prior criminal history, violent or otherwise.8
Based on Naphcare's medical and mental-health assessment of Bowling, LVMPD initially assigned him to minimum-security custody.9 LVMPD later reassigned Bowling to close-security custody after two behavioral violations—interrupting a razor pass by walking to the restroom and failing to follow orders not to talk—and after a brief stay on suicide watch.10 Bowling was assigned to a double cell with Franklin Sharp in Module 3B, Cell 21 on September26, 2016.11 Unlike Bowling, Sharp had a criminal history of violence in and out of jail, including post-incarceration charges for attempted murder, battery by prisoner, and battery by strangulation for attacking his previous cellmate, Joseph Barrese, at CCDC earlier that month.12
On October 8, 2016, Corrections Officers Thomas Streimer, Angelo Larry, and Rolando Trevino began a new rotation on Module 3 at CCDC.13 Officer Streimer had the day shift on Module 3B and was relieved by Officer Larry around 5:00 p.m.14 Officer Trevino was finishing his day shift in Module 3A nearby.15 Neither of them had supervised Bowling or Sharp in Module 3B before.16
Three inmate workers had been cleaning the unit after dinner while other inmates were on lockdown, and they heard Sharp attack Bowling.17 Some approached Cell 21 and told Sharp to stop. Another inmate who was on the phone with his girlfriend from a phone bank a few feet away described the thrashing in Cell 21.18 The call's transcript shows him telling another inmate to grab a mop to clean up the blood that was coming out from under the Cell 21. Surveillance video shows the inmates approaching Cell 21 and Officer Streimer conducting his final visualcheck of his shift less than five minutes later.19 Prior to that, Officer Streimer was either at the desk at the unit's entrance or not visible in the unit.
As required by CCDC's policies, Officer Larry began his bi-hourly visual checks of the cells around 5:30 p.m.20 When he got to Cell 21, Sharp was standing in front of the window, washing his face and hair in the water basin inside the cell.21 Officer Larry ordered Sharp to step away so that he could see Bowling.22 Officer Larry saw Bowling lying face down on the ground with blood around his waist and "called a code 99" for immediate medical attention.23 Officer Trevino responded within seconds and upgraded the code to get more backup for Bowling.24
Officer Trevino entered the cell while Officer Larry arrested Sharp.25 There wasn't blood coming from under the door, but there was a trail of blood going from the door to a dried-up pool near Bowling.26 Bowling was unresponsive.27 Officer Trevino pulled Bowling out of the cell to allow the medical staff more room to work.28 Despite life-saving efforts at CCDC and the University Medical Center Trauma Center, Bowling was pronounced dead.29 His cause of death was a combination of cardiac arrest from asphyxiation and facial trauma.30
Fitzpatrick alleges causes of action under 42 U.S.C. § 1983 for violations of Bowling's rights under the Eighth and Fourteenth Amendments against LVMPD, Naphcare, several doe corrections officers, classification officers, and health care providers; a municipal-liability claim under §1983 against LVMPD, Naphcare, and doe health care providers; a wrongful-death claim under Nevada Revised Statute § 41.085 against all defendants; and a negligence claim against Naphcare and doe health care providers.31
In March 2018, Fitzpatrick requested the production of the inmate files for both Bowling and Sharp, including locator cards for each.32 Fitzpatrick believed that the locator card for Sharp, which Officer Streimer would have had to review the day of Bowling's death, showed that Sharp had attempted to kill a different cellmate one month earlier, and this information would have alerted Officer Streimer that Sharp was a risk to Bowling.33 Defendants did not produce the locator cards with their initial responses in June 2018,34 and their supplemental disclosures omitted Sharp's locator card as it existed before the attack.35 Fitzpatrick followed upon the production request by attempting to meet and confer with defendants through their counsel and, later, through a mediator, but was unsuccessful.36
In November 2018, Fitzpatrick also noticed the deposition of LVMPD's Rule 30(b)(6) designees.37 The parties scheduled the deposition of Sergeant Albright, the first of defendants' Rule 30(b)(6) designees, for December 12, 2018.38 During the deposition, however, the parties decided to mediate the case and scheduled the mediation for March 21, 2019, before a retired Nevada Supreme Court Justice.39 With the December 17 discovery cut-off deadline five days away, the parties stipulated to stay discovery pending mediation.40 But the court denied the stipulation the following January.41 It allowed the parties until April 2, 2019, to complete the Rule 30(b)(6) deposition for LVMPD if the mediation failed, and it extended the dispositive-motion deadline to April 18, 2019.
The mediation was interrupted, however, when counsel for LVMPD left for a family medical emergency,42 and the parties did not reschedule it. Fitzpatrick declares that she repeatedly contacted defendants' counsel after the truncated mediation and before April 2, but defendants' counsel did not respond.43 Instead, defendants moved for summary judgment,44 but Fitzpatrick insisted that defendants schedule the remainder of the deposition before April 17 (15days after the close of discovery).45 Fitzpatrick also opposed the motion for summary judgment, "detail[ing] the crucial nature of the missing [l]ocator [c]ards," and asked the court to defer its consideration of the motion until she obtained the outstanding discovery.46
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