Frary v. Cnty. of Marin

• Decision Date: 25 February 2015
• Docket Number: Case No. 12–cv–03928–MEJ
• Parties: Lynnette Frary, et al., Plaintiffs, v. County of Marin, et al., Defendants.
• Court: U.S. District Court — Northern District of California

81 F.Supp.3d 811

Lynnette Frary, et al., Plaintiffs

v.County of Marin, et al., Defendants.

Case No. 12–cv–03928–MEJ

United States District Court, N.D. California.

Signed February 25, 2015

David Lee Fiol, Joseph P. Brent, Richard Wesley Pratt, Brent, Fiol & Pratt LLP, San Francisco, CA, Adam Cabral Bonner, Charles A. Bonner, Law Offices of Bonner and Bonner, Sausalito, CA, for Plaintiffs.

Renee Giacomini Brewer, Steven Michael Perl, Marin County Counsel's Office, Kerry Laiw Gerchow, Office County Counsel, Sheila Shah Lichtblau, San Rafael, CA, Richard William Osman, Thomas F. Bertrand, Bertrand, Fox, Elliot, Osman & Wenzel, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; ORDER GRANTING PLAINTIFFS' MOTION TO FILE THIRD AMENDED COMPLAINT

Re: Dkt. Nos. 97, 180

MARIA-ELENA JAMES, United States Magistrate Judge

INTRODUCTION

Plaintiffs sued the County of Marin and individual jail staff (“Defendants”) for their alleged deliberate indifference to decedent Anthony Carmignani's serious medical needs while he was in Defendants' custody. See Dkt. No. 52, Second Am. Compl. Now pending before the Court is Defendants' Motion for Summary Judgment. Dkt. No. 97 (“Mot.”). Plaintiffs oppose the motion.¹ Dkt. No. 131 (“Opp'n”). The Court held a hearing on December 18, 2014. Dkt. No. 171. Having considered the parties' positions, relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion for the reasons set forth below.

BACKGROUND

The following facts are undisputed unless otherwise indicated:

A. Decedent Anthony Carmignani

Marin County Jail staff found Anthony Carmignani not breathing in his cell on July 30, 2011. Combined Statement of Facts² (“CSF”), Dkt. No. 137, ¶ 46. Jail deputies and medical personnel tried to resuscitate Carmignani, and he was transported to the hospital, where he was later pronounced dead. CSF ¶¶ 47–48. His death certificate names

his cause of death an accidental mixed drug overdose. Id. ¶ 49.

The day before, on July 29, 2011, Novato Police Officers had arrested Anthony Carmignani and transported him to the Marin County Jail. Id. ¶ 9. Carmignani's mother, Plaintiff Lynnette Frary, reported Carmignani for allegedly stealing prescription medication from her home. Id. ¶ 5. Plaintiffs allege that during transit to the Jail, Carmignani retrieved some pills from his pockets and ingested them. Id. ¶¶ 11, 12; Second Am. Compl. ¶¶ 9, 45, 47. Carmignani arrived at the Jail at around 3:30 p.m. CSF ¶ 13.

Upon arrival, Jail staff searched Carmignani and found several pills in his pockets, including one Embeda, an extended release morphine

pill. Id. ¶ 14. Carmignani was then examined by a booking nurse, Defendant Shannon Fetterly, who asked him if he had taken any drugs. Id. ¶ 16. Carmignani told her that he had taken only two “street” morphine pills before he was arrested. Id. ¶ 17. Nurse Fetterly kept Carmignani in the booking area for four hours. Id. ¶ 18. During those four hours, she took his vital signs at least two times. Id. ¶ 19.³

Nurse Fetterly testified that “[Carmignani's] vitals were fine.... [H]e told me he was feeling fine” but also noted that “he was worried about withdrawal, when he started coming off of the medication, the morphine

, that he was going to withdraw. He made that very well-known to me.” Fiol Decl., Ex. 6 (Fetterly Dep.) 170:3–7, Dkt. No. 131–2. She also testified that she wrote in his medical chart, “he just popped two morphine pills before he was arrested. Noticed change in behavior, very drowsy, pupils pinpoint. States he is going to detox bad.” Id. at 154:8–23. Nurse Fetterly documented that Carmignani's eyes “went from non-pinpoint to pinpoint in that hour and a half period” between 4:00 and 5:30 p.m. and that he became “very drowsy.” Id. at 139:3–18. She found these observations significant at the time, noting that she was aware that he was “definitely under the influence of something” and that these observations caused her to believe “he needed to be observed in booking longer. He was not ready to go upstairs.” Id. at 145:1–8.

A few hours later, around 8:00 p.m., Nurse Fetterly released Carmignani for placement into the general jail population. CSF ¶¶ 23, 29. The jail staff placed Carmignani in Administrative Segregation (“Ad Seg”)—in a cell by himself—because his prior custodial history indicated that he had gang affiliations as well as “keep away” orders from African Americans and Hispanics. Id. ¶ 29. Carmignani's cell was equipped with an intercom. Id. ¶ 30. Nurse Fetterly had advised Carmignani that he could use the intercom to get a hold of a nurse if he felt he needed medical attention. Fetterly Dep. 23:13–16, Dkt. No. 100–3, Ex. F. Carmignani said that he understood and that he just wanted to go to sleep. Id. at 23:16–17; CSF ¶ 23.

Ad Seg has two levels, with Cells 1–7 on the lower level. CSF ¶ 145; Fiol Decl., Ex. 10 (Johnson Dep.) 58:10–17; 71:1–2, Dkt. No. 131–3. Carmignani was housed on the lower level, in Cell 1. CSF ¶ 162. The Ad Seg Deputy sat in the “tower” that was even with the upper, second level of cells. Id. ¶ 146; Johnson Dep. 62:3–6. The deputy must remain in the tower at all times. Johnson Dep. 95:12–20. There is also a movement relief deputy, or MRD, who moves in and out of Ad Seg during the graveyard shift. Id. at 95:21–96:21. Deputy Johnson was the tower deputy on July 29 and 30, 2011. Id. at 77:12–18. He placed Carmignani in Cell 1. CSF ¶ 162.

The inmate status report listed Carmignani as “high risk” and “unstable [,]” noting also “obs. opiate detox.” See Johnson Dep., Ex. 4; Fetterly Dep. 186:4–17; 187:1–11. Nurse Fetterly testified that she put in an entry “observe for opiate detox” and “[i]nformed custody about morphine

use prior to arrest.” Fetterly Dep. 154:14–15. Additionally, a “corrections entry” states: “17:43 hours: Nurse Shannon Fenley told me that while she was doing the inmates intake inmate admitted to her that he had taken two street morphine pills prior to coming to jail. He had pinpoint eyes. Inmate stated that he will ‘crash hard.’ Please monitor inmate.” Johnson Dep., Ex. 5 (spelling in original).

The Jail used an electronic log in its computer system known as the “Beat Book,” which deputies used to record “any notable event” that occurred in the Jail for each pod, including safety checks. Dkt. No. 104, Hickey Decl. ¶ 4. The Beat Book shows that the majority of the safety checks for Carmignani were “completed from the tower” or “from tower.” Hickey Decl., Ex. A. According to Deputy Johnson, a safety check completed from the tower means that he did a visual or a sound check of the inmate. Johnson Dep. 137:22–25; 89:4–12. The pod deputy could only hear sounds in the cell if he pressed a button to activate the intercom and connect the guard tower to that cell; otherwise, the deputy cold not hear what was happening in the cell through the intercom. Id. at 65:12–21; 90:5–16. Deputy Johnson testified that a visual check means peering out the window of the tower. Id. at 89:10–12. He testified that he could see possibly a quarter of Carmignani's cell-bed from the tower. Id. at 77:13–18; 79:2–8; 84:5–8. Ronald Martinelli, Plaintiffs' expert witness, visited the jail, took pictures of the cell, and stated that no portion of the bed could be viewed from the tower. Martinelli Decl. ¶ 37 ⁴ & Ex. 2, Dkt. No. 131–5.

At approximately 10:24 p.m., around seven hours after Carmignani arrived at the Jail, Novato Police Officer Stephanie Commisto met with Carmignani to serve him with papers. CSF ¶ 31. Carmignani walked to the door of his cell as Officer Commisto passed him the paperwork through his cell's food port. Id. ¶ 32. Carmignani did not face Officer Commisto as he read the papers, and she never saw his eyes. Id. ¶ 34; Giacomini Brewer Decl., Ex. H (Commisto Dep.) 120:17–22; 122:20–25; Dkt. No. 101–2. Officer Commisto did not observe anything about Carmignani that indicated he was having problems or in any medical distress. CSF ¶ 35. Officer Commisto's visit with Carmignani was not indicated in a “Beat Book” entry. See Hickey Decl., Ex. A.

The next morning, at approximately 5:30 a.m., Defendant Deputy Rachel Hammer and two volunteer inmates attempted to serve Carmignani breakfast. CSF ¶ 39. Deputy Hammer asked Carmignani if he wanted breakfast, but he did not respond. Fiol Decl., Ex. 7 (Hammer Dep.) 121:23–122:2, Dkt. No. 131–2. Deputy Hammer knocked on his cell door at least three or four times and characterized these knocks as “hard.” CSF ¶¶ 40, 218; Hammer Dep. 122:3–21. The knocks elicited no response from Carmignani other than snoring. Hammer Dep. 122:22–24. Deputy Hammer testified that she elevated her voice to get Carmignani's attention, and even when she yelled he did not respond. Id. at 145:22–146:4. Deputy Hammer also observed Carmignani's chest rising and falling. CSF ¶ 42. His eyes stayed closed and she did not otherwise observe him move. Hammer Dep. 120:25–121:20. Trustee Diaz, one of the volunteer inmates who helped Deputy Hammer serve breakfast, testified that Anthony's mouth was open and his eyes slightly open and rolled back. Fiol Decl., Ex. 4 (Diaz Dep.) 69:20–70:12, Dkt. No. 131–2.

Deputy Hammer was read a statement by Trustee Diaz, which said that Deputy Hammer had called out to Carmignani for approximately one minute and that he remembered commenting to Deputy Hammer that Carmignani “looks dead.” Hammer Dep. 134:24–135:9. Deputy Hammer did not dispute the accuracy of this statement, instead stating that she does not remember. Id. at 135:15–20. Deputy Hammer reported to Deputy Johnson over her radio that Carmignani had “refused” breakfast. Id. at 124:14–21; CSF ¶ 222. Deputy Hammer instructed the volunteer inmates to remove the food tray. Diaz Dep. 73:11–13.

At 8:40 a.m., jail staff observed Carmignani sleeping, with his chest rising and falling. CSF ¶ 45. Deputy Thomas McCloskey took over the tower deputy position from Deputy...