Greer v. Cnty. of San Diego

Decision Date07 October 2022
Docket Number19-cv-378-JO-DEB
PartiesFRANKIE GREER, Plaintiff, v. COUNTY OF SAN DIEGO, et al., Defendants.
CourtU.S. District Court — Southern District of California


Honorable Daniel E. Butcher United States Magistrate Judge


Before the Court is Plaintiff Frankie Greer's (Plaintiff) Motion to Compel further responses to Plaintiff's Requests for Production (“RFP”) 52-54 for twelve Sheriff's Department's Critical Incident Review Board reports and related documents. Dkt. No. 148. Plaintiff's Motion challenges Defendant the County of San Diego's (“the County”) assertion of attorney-client privilege, work product protection, and other privileges for these documents. Id. The County opposes the Motion and Plaintiff has filed a Reply. Dkt. Nos. 152, 153.

Because the County's privilege log lacked sufficient detail to determine the applicability of attorney-client privilege and work product protection, the Court ordered supplemental briefing and for the County to file an amended privilege log. Dkt. No. 166. The County then filed its supplemental brief and amended privilege log and Plaintiff filed a sur-reply. Dkt. Nos. 168, 169.

For the reasons discussed below, the Court GRANTS Plaintiff's Motion.

A. Plaintiff's Claims

Plaintiff's Second Amended Complaint (“SAC”) alleges when Plaintiff was booked into the San Diego Central Jail, he gave medical staff his prescribed seizure disorder medication and informed them he would suffer chronic seizures without it. Dkt. No. 59 ¶¶ 29-31. Medical staff did not administer Plaintiff's medication, enter a seizure disorder alert, enter lower bunk assignment order in the Jail Information Management System (“JIMS”), or otherwise communicate Plaintiff's medical condition and needs to jail staff. Id. ¶¶ 36, 38, 41, 43.

Despite Plaintiff missing two doses of seizure medication and requesting a bottom bunk due to his medical condition, jail staff assigned him to a top bunk. Id. ¶¶ 42, 44, 4553. Shortly thereafter, Plaintiff had a seizure and fell from his top bunk onto the concrete cell floor, which rendered him unconscious. Id. ¶¶ 55-57. Jail staff did not respond to Plaintiff's cellmates' intercom calls and shouts for help, which delayed medical treatment. Id. ¶¶ 57-66, 69-71, 73. Plaintiff suffered “numerous clinical seizures” without receiving immediate emergency medical care, which exacerbated his injuries. Id. ¶¶ 72-73. Plaintiff sustained facial fractures, a brain bleed, and respiratory failure. Id. ¶ 74. Plaintiff remained unconscious for weeks and has a significant brain injury, which continues to impair his cognitive functioning, memory, and speech. Id. ¶¶ 78-79, 81.

Plaintiff alleges the County and supervisory officials are liable for his injuries because they failed to train, monitor, supervise, and discipline Sheriff's Department personnel despite a known history of failures to: (1) communicate, share critical medical information, and coordinate the care of seriously ill inmates; (2) provide seriously ill inmates emergency medical care; and (3) properly monitor seriously ill inmates. Id. ¶¶ 119, 120, 129-32, 264-68, 278-85.[1] Plaintiff also asserts individual claims against the supervisory officials, alleging they failed to adequately train and supervise jail staff to properly: (1) administer medication; (2) input medical information in JIMS; (3) communicate serious medical needs to other jail personnel; and (4) monitor seriously ill inmates, including timely responding to emergency calls for aid. Id. ¶¶ 218-44.

B. The Critical Incident Review Board

The Critical Incident Review Board (“CIRB”) consists of three “voting” members (one commander each from Law Enforcement, Court Services, and Detention Services divisions), and two “non-voting” members (the Chief Legal Advisor and Human Resources division commander). Dkt. No. 148-4 at 6.[2] In addition to CIRB members, meeting attendees include the assigned investigator and representatives from the subject employee's chain of command, the Division of Inspectional Services (“DIS”), Internal Affairs, and Training. Id. The CIRB can request additional personnel attend the meeting. Id.

[A] CIRB meeting occurs in three stages. First, Department personnel present factual information regarding the underlying incident, including, in some instances, PowerPoints, to the CIRB members, including the Department's legal counsel. Department employees whose attendance was requested because of their relevant subject-matter expertise (e.g., weapons training unit, in-service training, K-9 unit, etc.) also attend. Next, the Department employees who present the factual information are dismissed from the room and CIRB members, including legal counsel, discuss and address issues with the Department's subject-matter experts. Lastly, the subject-matter experts are dismissed from the room and the CIRB members, including legal counsel, engage in further discussions. The DIS Lieutenant is also present to facilitate these communications and to document key issues, comments, and matters for inclusion in the CIRB confidential report.

Dkt. No. 152-1 ¶ 8.

At the conclusion of the CIRB's review, the voting members determine whether a policy violation may exist. Dkt. No. 148-4 at 7. If so, the matter is forwarded to Internal Affairs for further investigation. Id. The CIRB is also authorized to recommend policy changes and training. Id. at 8.

Following the CIRB meeting, the DIS Lieutenant writes a report that must “contain specific findings with regard to whether the review board found any policy violations, and training or policy issues, as well as what actions were taken by the department.” Id. The employee under review is “debriefed” regarding the CIRB's findings. Id.

The Sheriff's Department requires the CIRB to review all “critical incidents.” Id. at 6.[3] The CIRB is the only mandatory internal review of deputy conduct related to in-custody deaths to determine, for example, whether the deputy's tactics were proper and consistent with training. Id. at 46-47.

The Sheriff's Department Policy and Procedures Manual describes the CIRB's multiple purposes: (1) “assess the department's civil exposure as a result of a given incident” (described as the “focus of the CIRB”); (2) “determine as to whether or not a policy violation may exist”; (3) make “recommendations for training based upon the analysis of critical incidents”; (4) identify any “policy issues of concern”; and (5) “debrief [the employee] as to the results of the CIRB.” Id. at 6-8.

Consistent with the CIRB's multiple purposes unrelated to obtaining legal advice, the Sheriff's Department holds the CIRB out to the public as an internal body dedicated to police accountability and oversight. Id. at 9. For example, the Sheriff's Department describes the CIRB as an internal oversight board that supports the Sheriff's Department's “dedicat[ion] to building a culture of trust with our communities ....; [efforts to be] proactive in the identification of possible opportunities for change in our policies, procedure, and training to affect consistent positive outcomes . . .; [and] commit[ment] to [the] impartial and compassionate enforcement of the law.” Id. And on June 9, 2020, shortly after the eruption of nationwide protests in response to the death of George Floyd, the Sheriff's Department identified the CIRB as an internal oversight board that represents the Department's “commit[ment] to impartial and compassionate enforcement of the law” and efforts to be “proactive in the identification of possible opportunities for change in our policies, procedure, and training to affect consistent positive outcomes.” Id. at 11. The Sheriff's Department also said that, to honor this commitment, its “leadership team reviews all critical incidents to ensure proper and just responses were administered .... [and its] CIRB carefully reviews the incidents from multiple perspectives - including training, tactics, policies, and procedures - with the goal of identifying problem areas and recommending remedial actions.” Id. at 11, 12.

In June 2011, Robert Faigin, the Sheriff's Department Chief Legal Adviser and “primary architect of the CIRB policy and procedure” (Dkt. No. 148-3 at 49) authored an article entitled, Critical Incident Review Board: Creation and Refinement” (Dkt. No. 1484 at 14-20). He described the CIRB as a means by which “a law enforcement agency can meet the public's expectation of effective self-policing ....” Dkt. No. 148-4 at 15. Mr. Faigin recommended including legal counsel as a CIRB member because it “potentially provides the ability to protect the confidentiality of the discussion under the cloak of the attorney-client privilege.” Id. at 16.

C. Plaintiff's Requests For Production of Critical Incident Review Board Reports and Related Information

Plaintiff's RFPs 52-54 seek CIRB “reports or memoranda,” CIRB meeting attendees, and “records, materials, and tangible things” provided to the CIRB during its investigation of twelve County jail deaths that preceded Plaintiff's seizure and fall. Dkt. No. 148-3 at 20-25. Plaintiff seeks these documents in connection with his Monell claim (i.e., the County had notice of a pattern of jail personnel failing to properly address inmates' serious medical needs and failed to take remedial action). Dkt. No. 113 at 14-23. The Court previously ruled these document requests are relevant and proportionate to Plaintiff's Monell claim. Dkt. No. 117. On July 27, 2022, District Judge Jinsook Ohta overruled the County's objections to that Order. Dkt. No. 173.

The County refused to...

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