Pallamary v. Elite Show Servs., Inc.
| Decision Date | 19 June 2018 |
| Docket Number | Case No.: 17cv2010-WQH-BGS |
| Court | U.S. District Court — Southern District of California |
| Parties | MICHAEL PALLAMARY, individual, Plaintiff, v. ELITE SHOW SERVICES, INC., a California corporation; CITY OF SAN DIEGO, a municipal corporation; OFFICER ZACHARY DIGIOIA, an individual; SERGEANT JENNIFER ATWOOD, an individual; DETECTIVE JULIE ADAMS, an individual; QUALCOMM STADIUM MEDICAL STAFF 1-3, individuals; the CHARGERS FOOTBALL COMPANY, LLC, a California limited liability company; BARBARA JOHNSON, an individual; DANIEL JOHNSON, an individual; and DOES 1 through 30, inclusive, Defendants. |
The matters before the Court are the motion to dismiss by Defendants City of San Diego ("Defendant City"), Officer Zachary Digioia, Sergeant Jennifer Atwood, and Detective Julie Adams (collectively, "the City Defendants") (ECF No. 37); the motion to strike (ECF No. 44) and motion to dismiss (ECF No. 45) filed by the Chargers Football Company, LLC ("Defendant Chargers"); and the motion to strike (ECF No. 41) and motion to dismiss (ECF No. 42) filed by Defendants Elite Show Services, Inc. ("Elite"), Barbara Johnson, and Daniel Johnson (collectively, "the Elite Defendants").
On December 22, 2017, Plaintiff filed the First Amended Complaint ("FAC"), the operative pleading in this action, against Defendants City of San Diego, Officer Zachary Digioia, Sergeant Jennifer Atwood, Detective Julie Adams, the Chargers Football Company, LLC, Barbara Johnson, Daniel Johnson, Elite Show Services, Inc., Qualcomm Medical Staff 1-31, and doe defendants. (ECF No. 32).
On January 2, 2018, the City Defendants filed a motion to dismiss. (ECF No. 37). On March 8, 2018, Plaintiff filed a response in opposition. (ECF No. 52). On March 15, 2018, the City Defendants filed a reply. (ECF No. 53).
On January 5, 2018, the Elite Defendants filed a motion to strike and a motion to dismiss. (ECF Nos. 41, 42). On March 15, 2018, Plaintiff filed responses in opposition. (ECF Nos. 54, 55). On March 22, 2018, the Elite Defendants filed replies. (ECF Nos. 58, 59).
On January 5, 2018, Defendant Chargers filed a motion to strike and motion to dismiss. (ECF Nos. 44, 45). On March 15, 2018, Plaintiff filed responses in opposition. (ECF Nos. 56, 57). On March 22, 2018, Defendant Chargers filed replies. (ECF Nos. 60, 61).
Plaintiff Michael Pallamary is a 63 year-old male with Type II diabetes and numerous other medical conditions and recent surgeries on his legs. (ECF No. 32 at ¶¶ 14-16). On November 6, 2016, Plaintiff attended a Chargers football game with his wife and another couple. Id. ¶ 18. At the time, Plaintiff was suffering various mobility impairments and was disabled. Id. ¶ 17. Plaintiff's seat during the game was located below a seating area reserved for "persons with mobility impairments." Id. ¶ 19.
"During the first half of the Game, Plaintiff experienced extraordinary pain in his left leg and uncontrollable spasms." Id. ¶ 20. Assisted by an employee of Elite, Plaintiff "proceeded to the rear wall of the seating marked for persons with mobility [impairments] where he tried to alleviate his pain and stop the spasms." Id. ¶ 21. The Elite employee "made no objections" to Plaintiff leaning against the rear wall in this area and further informed Plaintiff that Plaintiff "could sit down in the adjoining seating immediately adjacent to the location for 'persons with mobility impairments."' Id. ¶¶ 21, 22. Plaintiff sat down in one of the handicapped seats. Id. After the pain subsided, Plaintiff returned to his seat. Id. ¶ 24.
"During the second half of the Game, Plaintiff experienced another painful, bout of muscle spasms[.]" Id. ¶ 25. "Plaintiff returned to the prior location marked for 'persons with mobility impairments.'" Id. ¶ 26. Relying upon signage and the prior authorization by the Elite employee, Plaintiff returned to the area marked for "persons with mobility impairments" and attempted to stretch his leg to abate the spasms. Id. ¶¶ 26-27. Although he was unaware at the time, Plaintiff was "in the midst of a diabetic crisis" in which his blood pressure was elevated and his blood sugar had risen to 400. Id. ¶ 28. Plaintiff sat down in one of the disabled seats in an attempt to alleviate the pain in his leg and back. Id. ¶ 29. Defendant Barbara Johnson, an Elite employee, approached Plaintiff and asked if he had a ticket for the seat. Id. ¶ 30. "Plaintiff explained that his seat was 18 inches away and that he sat in the otherwise empty mobility impaired patron area to attempt to alleviate his medical issue as permitted by the sign." Id. Plaintiff explained that he was in extraordinary pain and "was diabetic in distress." Id. Defendant Barbara Johnson ordered Plaintiff out of his seat and refused to listen or look when he stated that he was disabled and offered to show her paperwork establishing his disabled status. Id.
Plaintiff walked to the rear wall to perform stretches and physician-advised movements to alleviate his pain. Id. ¶ 31. Barbara Johnson approached Plaintiff again and "informed him he could not stand against the wall, located at the place reserved for persons with mobility impairments." Id. Plaintiff requested to see her supervisor and Barbara Johnson returned with Defendant Daniel Johnson, another Elite employee. Id. ¶ 31-32.
"Plaintiff explained to Defendant [Daniel Johnson] that Plaintiff was diabetic and in extraordinary pain due to a number of medical problems" and that a prior Elite employee "had previously given him consent and authorization to be in the area for persons with mobility impairments." Id. ¶ 33. Daniel Johnson was unsympathetic and informed Plaintiff that he could not stand against the back wall in the area. Id. ¶ 34. During this conversation, Barbara Johnson "verbally assault[ed]" Plaintiff which caused him great stress and worsened his diabetic-related medical problems. Id.
Defendants Officer Zachary Digioia and Detective Julie Adams, officers of the San Diego Police Department, next arrived at the scene. Plaintiff explained his condition to the Adams and Digioia. Adams asked if Plaintiff needed a paramedic and Plaintiff responded that he did not think so. Id. ¶ 35. Digioia "informed Plaintiff he could not sit or stand anywhere except his seat, located thirteen inches away." Id. ¶ 36. During this conversation, Barbara Johnson continued to interrupt the conversation "in a belligerent manner" and tried to "agitate and provoke" Plaintiff, Adams, and Digioia. Id. ¶ 37. Barbara Johnson "went to extraordinary efforts to badger, harass, and vex Plaintiff, despite his repeated pleas for her to stop." Id. ¶ 38.
The paramedics were called to the scene and spoke with Plaintiff but "did not feel Plaintiff needed immediate care[.]" Id. ¶ 40. They advise that Plaintiff should call them if he needed additional care. Id. Id. ¶ 41. Plaintiff later learned that he was experiencing hypoglycemia at the time and that his blood sugar was dangerously elevated. Id. Defendant Adams and Defendant Barbara Johnson again informed Plaintiff that he had to leave the area and that they were going to escort him out. Id. ¶ 45.
Id. ¶ 47. Id. ¶ 48. "Plaintiff's condition continued to worsen and Plaintiff explained that he needed to lay down as he was afraid he would collapse." Id. ¶ 49. Defendants Barbara Johnson, Digioia, Adams, Atwood, and the staff of Defendant Elite refused to provide Plaintiff with care or allow him to move. Defendant Sergeant Jennifer Atwood, an officer of the San Diego Police Department, told Plaintiff he could sit on the floor. Defendant Atwood informed Plaintiff's wife that he was being detained but did not respond when Plaintiff's wife asked if Plaintiff was being arrested. Id. ¶¶ 49-50. Plaintiff informed Defendants Digioia, Adams, and Atwood that his condition was worsening and that he needed immediate medical help but the defendants "refused to let him leave or lie down." Id. ¶ 51. Defendant Barbara Johnson continued "badgering" and "taunting" Plaintiff. Id. ¶ 53. Defendants Digioia, Adams, and Atwood observed this mistreatment but failed to intervene. Id. Another police officer eventually ordered Defendant Barbara Johnson to leave. Id. ¶ 54.
The paramedics arrived and "informed Plaintiff that he should be taken to the hospital right away." Id. ¶¶ 56-57.
Plaintiff consented to the proposed medical evacuation and asked for a stretcher on which he could lay down, for fear of fainting or collapsing and causing himself further injury. Instead, another individual arrived with a wheelchair and Plaintiff stated he was in exceptional pain and needed a bed or stretcher. Unheeding his requests or explanations, Plaintiff was required to ride in the rickety wheelchair and then rolled down, bouncing and jarring the whole time, half a dozen ramps, to the lower level, further aggravating his medical conditions. Rather than evacuate Plaintiff to a hospital, consistent with the recommendations of the paramedics and the scope of Plaintiff's consent, Defendants brought Plaintiff to a physician employed by the Defendants for evaluation.
Id. ¶ 57. At the Qualcomm medical office, the Qualcomm Medical Staff doctor refused Plaintiff's requests for a bed, an ambulance, and pain...
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