Hernandez v. County of Alameda

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 HECTOR A HERNANDEZ, et al., Case No. 20-cv-02884-HSG 8 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 9 v. MOTIONS FOR SUMMARY JUDGMENT AND DENYING MOTION 10 COUNTY OF ALAMEDA, et al., FOR LEAVE TO FILE AMENDED COMPLAINT 11 Defendants. Re: Dkt. Nos. 62, 65, 66 [12] 13 Pending before the Court is Defendants’ motions for summary judgment and Plaintiffs’ 14 motion for leave to file a second amended complaint. See Dkt. Nos. 62, 65, 66. The Court held a 15 hearing on the motions. For the reasons detailed below, the Court GRANTS IN PART and 16 DENIES IN PART Defendants’ motions for summary judgment and DENIES Plaintiffs’ motion 17 to amend the complaint. 18 I. BACKGROUND 19 A. Factual Background 20 The underlying facts in this case are tragic, but largely undisputed. On June 5, 2019, Mr. 21 Hector Hernandez died at Santa Rita Jail in Alameda County where he was held as a pretrial 22 detainee. His parents and co-successors-in-interest, Plaintiffs Hector A. Hernandez and Maria 23 Ibarra, allege that Mr. Hernandez died due to the denial of proper medical care while he was in 24 custody. See, e.g., Dkt. No. 43 (“FAC”) at ¶¶ 1, 19. Because the parties dispute the nature of Mr. 25 Hernandez’s treatment and the cause of his death, the Court provides a brief overview of his care 26 while in custody. 27 Mr. Hernandez was arrested and initially booked into custody on April 1, 2019. See Dkt. 1 No. 65-1, Ex. A at 14.1 At that time, Defendant California Forensic Medical Group, Inc. 2 (“CFMG”) evaluated him. See Dkt. No. 65-1, Ex. B at 19, 23–29. According to their records, Mr. 3 Hernandez was 5’8 and weighed 150 pounds. See id. at 23. During his intake screening, Mr. 4 Hernandez told medical staff that he had a history of schizophrenia; he drank alcohol every day 5 and occasionally experienced withdrawals when he did not drink; and he had been hospitalized the 6 week before for mental health reasons. See id. at 24–26. He also reported a history of Latent 7 Tuberculosis Infection (“LTBI”). See id. at 24, 27; see also Dkt. No. 73, Ex. 3 at 46. Mr. 8 Hernandez was transferred to Santa Rita Jail on April 3. See Dkt. No. 65-1, Ex. A at 16. 9 On April 8, Mr. Hernandez met with CFMG nurse Dashmeet Kaur, complaining of pain 10 and sensitivity from a toothache. See Dkt. No. 73, Ex. 3 at 33, 55. Mr. Kaur noted that a tooth 11 was broken and decayed, and scheduled Mr. Hernandez for a dental sick call. Id. That same day, 12 Mr. Hernandez submitted a Medical Request Form, stating “I need to change my diet as soon as 13 possible. I am a vegetarian.” See id. at 31. On April 10, Mr. Hernandez again requested a 14 vegetarian diet. See id. at 55. CFMG staff told him that he had to make special dietary requests 15 through inmate services. Id. Mr. Hernandez submitted the request to inmate services the same 16 day. See id. at 35. On the form, he said: “I need to change my diet to a non-sugar, no salt and 17 vegetarian diet as soon as possible. I’m not eating right and am hungry. I am homeless.” See id. 18 On April 14, Mr. Hernandez was placed on an “Intensive Observation Log” (“IOL”) 19 because he had expressed suicidal ideations. See Dkt. No. 65-1, Ex. B at 6, 16–17. He remained 20 on this IOL until May. See Dkt. No. 65-1, Ex. A at 15–16. On April 16, CFMG physician 21 assistant Jeffrey Cooper evaluated Mr. Hernandez based on his previously diagnosed LTBI. See 22 Dkt. No. 73, Ex. 3 at 36–37, 54–55. Mr. Hernandez indicated that he took medication for six 23 months in 2004 to treat his LTBI. Id. Mr. Cooper determined that no further treatment was 24 necessary for the LTBI at that time. Id.; see also Dkt. No. 65-1, Ex. C at (Cooper Depo. at 68:10– 25 69:21, 83:8–85:20). 26 On April 19, Mr. Hernandez complained of constipation, and saw CFMG nurse Kacey [27] 1 Lebon. See Dkt. No. 73, Ex. 3 at 54. At the time, Mr. Hernandez declined an additional 2 abdominal and vital signs assessment, asking to return to his cell. Id. at 38–39, 54. Ms. Lebon 3 gave him milk of magnesia. Id. On April 22, Mr. Hernandez was treated for his dental problems. 4 See id. at 41. 5 The next day, Mr. Hernandez saw a dietician. See id. at 53, 70; see Dkt. No. 65-1, Ex. B at 6 18–19. According to his chart, Mr. Hernandez requested a no sugar, no salt, vegetarian diet “due 7 to personal and spiritual reasons he did not want to disclose.” See Dkt. No. 65-1, Ex. B at 18–19. 8 He also requested an extra snack a day. Id. The dietician noted that Mr. Hernandez’s weight 9 remained within normal limits, and did not believe a high-calorie diet was necessary. See id. A 10 few weeks later, on May 15, 2019, Mr. Hernandez noted that he had “been losing noticeable 11 weight” and requested extra food. See Dkt. No. 73, Ex. 3 at 47. He again noted that he was 12 vegetarian. Id. He saw Ms. Lebon on May 23 regarding his request for a high-calorie diet. See 13 id. at 53–54; see also Dkt. No. 65-1, Ex. B at 18. Ms. Lebon noted his weight loss, but stated that 14 his BMI was still within normal limits. Id. She also reiterated that the dietician had not found any 15 nutrition-related diagnosis requiring a high-calorie diet. Id. 16 Two days later, on May 25, Mr. Hernandez placed a sick call request, again requesting a 17 high-calorie diet due to weight loss. See Dkt. No. 73, Ex. 3 at 53. He also reported having 18 hydronephrosis of his right kidney and the inability to eat sugar. See id. at 53, 70. Mr. Hernandez 19 saw Ms. Lebon again on May 29, at which point she noted that his weight was still within normal 20 limits. See id. At the time, Mr. Hernandez weighed 137 pounds. Compare Dkt. No. 65-1, Ex. B 21 at 23, with Dkt. No. 73, Ex. 3 at 53–54. Ms. Lebon requested information regarding his 22 hydronephrosis diagnosis from Highland Hospital, where Mr. Hernandez said he had been 23 diagnosed. See Dkt. No. 73, Ex. 3 at 48–49, 53–54. On May 31, Highland responded that it had 24 no records for Mr. Hernandez. See id. at 70–71. 25 On June 4, Mr. Hernandez was again placed on an IOL for expressing suicidal ideations. 26 See Dkt. No. 65-1, Ex. A at 16. At approximately 11:49 a.m. on June 5, Mr. Hernandez was 27 evaluated by an Adult Forensic Behavioral Health Clinician T. Bui. See id. at 11. When asked if 1 Id. When asked if he was feeling suicidal, he stated “I don’t want to talk right now.” Id. Mr. Bui 2 therefore decided to continue the IOL. Id. At 3:05 p.m. that day, Alameda County Deputy David 3 Han and Deputy J. Ramos checked on Mr. Hernandez. Id. at 7–8. According to them, Mr. 4 Hernandez was on his bed covered with a security blanket. Id. They stated that he was still 5 breathing and did not display any signs of distress. Id. 6 The parties agree that the IOL required deputies to observe Mr. Hernandez every 15 7 minutes. See, e.g., Dkt. No. 65 at 2; cf. Dkt. No. 65-1, Ex. A at 6. But no one checked on Mr. 8 Hernandez again until approximately 4:20 p.m. See Dkt. No. 65-1, Ex. A at 6, 13. At that time, 9 Deputy Han saw Mr. Hernandez lying on the floor on his back, and he was not responsive. Id. at 10 6–7. When Deputy Han entered the cell, Mr. Hernandez did not appear to be breathing so he 11 called for emergency medical assistance and began performing chest compressions. See id.; see 12 also Dkt. No. 65-1, Ex. F (body cam video). Other staff arrived and continued chest compressions 13 and used an Automated Electric Defibrillator until Alameda County Fire personnel arrived and 14 took over the medical treatment. Id. Mr. Hernandez was declared dead at 5:02 p.m. See id. at 5. 15 Dr. John Iocco, who performed the autopsy for the Coroner’s Bureau, listed Mr. 16 Hernandez’s cause of death as “acute respiratory failure due to acute interstitial 17 pneumonia/hemorrhage.” Dkt. No. 65-1, Ex. G at 67. Interstitial pneumonia is a condition in 18 which a patient’s lungs fill up with fluid and blood, which prevents proper oxygen exchange and 19 leads to heart failure. See Dkt. No. 65-1, Ex. H at 79–86 (Iocco Depo. at 31:22–38:1). 20 Accordingly, Dr. Iocco testified that Mr. Hernandez died very suddenly and likely within a matter 21 of minutes. See id. at 84–86 (Iocco Depo. at 36:6–38:1). Dr. Iocco also listed “aspiration of 22 oral/pharyngeal bacteria” as an additional condition. Dkt. No. 65-1, Ex. G at 67. The coroner 23 concluded “[b]ased on [its] investigation, toxicology results, lack of trauma, and the autopsy 24 protocol” that “the manner of Hernandez-lbarra’s death [was] natural.” Id. at 65. 25 B. Procedural History 26 Plaintiffs initially filed this action in April 2020. See Dkt. No. 1. They amended their 27 complaint in March 2021. See FAC. In the FAC, Plaintiffs sued Defendants County of Alameda; 1 and Jeffrey Cooper. See FAC at ¶¶ 10–15. Plaintiffs also listed several unidentified “Doe” 2 Defendants. See id. at ¶ 16. At the time, Plaintiffs alleged that Mr. Hernandez died from an 3 untreated viral infection. See, e.g., id. at ¶¶ 19, 24–27, 32, 64, 72, 77, 85–87. 4 Plaintiffs asserted (1) several causes of action under 42 U.S.C. § 1983 for deliberate 5 indifference, wrongful death, and violating Mr. Hernandez’s civil rights, in violation of the 6 Fourteenth Amendment; (2) a Monell claim against Alameda County, alleging that it has policies 7 or practices of failing to provide and permitting the delay of medical assistance; (3) a negligence 8 claim under California law; (4) a violation of California Government Code § 845.6; (5) California 9 Code of Civil Procedure §§ 377.60 and 377.61; (6) intentional infliction of emotional distress; and 10 (7) medical malpractice. See id. at ¶¶ 20–102. 11 As discussed in Section III below, Plaintiffs seek to amend their complaint yet again. See 12 Dkt. No. 62. They filed a motion for leave to file the second amended complaint approximately 13 two weeks before the deadline to file dispositive motions. See Dkt. Nos. 58, 62. The proposed 14 second amended complaint dismisses Defendants Wellpath, Inc., Corey Levin, and Jeffery 15 Cooper. It adds Deputy Han as a Defendant instead. See Dkt. No. 62-1 (“SAC”) at ¶ 11. Rather 16 than a viral infection, Plaintiffs assert that Mr. Hernandez actually died from untreated chronic 17 kidney disease and unintended weight loss, which is a symptom of myriad underlying conditions. 18 See id. at ¶¶ 18–19, 23, 34, 40. They allege that Defendants were aware Mr. Hernandez was ill, 19 but failed to provide proper care. Plaintiffs state that Mr. Hernandez exhibited serious health 20 warnings in the weeks prior to his death, including unintended weight loss of 8.7% of his body 21 weight. See id. at ¶¶ 16–19. The proposed SAC also streamlines Plaintiffs’ causes of action and 22 removes the claim for intentional infliction of emotional distress and wrongful death under 42 23 U.S.C § 1983. See id. at ¶¶ 27–60. 24 Defendants, in turn, move for summary judgment as to all Plaintiffs’ claims. See Dkt. Nos. 25 65, 66. 26 II. MOTIONS FOR SUMMARY JUDGMENT 27 A. Legal Standard 1 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 2 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 3 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence 4 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. 5 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from 6 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. 7 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 587–88 (1986), and “may not weigh the evidence 8 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), 9 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878 , 884–85 (9th Cir. 2008). If a court 10 finds that there is no genuine dispute of material fact as to only a single claim or defense or as to 11 part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a). 12 B. Discussion 13 Defendants argue that Plaintiffs have failed to offer any evidence sufficient for a trier of 14 fact to find them liable for Mr. Hernandez’s death under any cause of action. See Dkt. Nos. 65 at 15 10–24; Dkt. No. 66 at 4–7. The Court begins with Plaintiffs’ federal claims under 42 U.S.C. 16 § 1983 for deliberate indifference, violation of the family’s substantive due process right of 17 familial association under the Fourteenth Amendment, and wrongful death.2 18 i. Deliberate Indifference 19 A pretrial detainee’s claim for deliberate indifference to medical need derives from the 20 substantive due process clause of the Fourteenth Amendment. See Lolli v. Cnty. of Orange, 351 21 F.3d 410, 419 (9th Cir. 2003). “Prison officials are deliberately indifferent to a prisoner’s serious 22 medical needs when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. 23 Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (quotations omitted). But “[t]he mere lack of due care 24 by a state official does not deprive an individual of life, liberty, or property under the Fourteenth 25 Amendment.” Gordon v. Cnty. Of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (quotation [27] 2 During the hearing on the motions, Plaintiffs conceded that they did not have sufficient evidence 1 omitted). 2 To establish a claim for failure to provide medical treatment, a plaintiff must prove that: 3 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 4 (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; 5 (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the 6 circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s 7 conduct obvious; and (iv) by not taking such measures, the defendant caused the 8 plaintiff’s injuries. [10] Id. at 1125 . Such claims are “evaluated under an objective deliberate indifference standard.” Id. 11 at 1124–25; see also Sandoval v. Cnty. of San Diego, 985 F.3d 657, 669 (9th Cir. 2021) (noting 12 that “the plaintiff must show that the defendant’s actions were ‘objectively unreasonable’”). This 13 requires the plaintiff to “‘prove more than negligence but less than subjective intent—something 14 akin to reckless disregard.’” Gordon, 888 F.3d at 1125 (quoting Castro v. Cty. of Los Angeles, [15] 833 F.3d 1060, 1071 (9th Cir. 2016)). 16 Here, Plaintiffs advance distinct theories of liability as to the County Defendant and the 17 CFMG Defendants.3 First, Plaintiffs argue that Deputy Han’s failure to observe Mr. Hernandez 18 every 15 minutes—as required by the IOL—led to his death because he delayed Mr. Hernandez’s 19 access to emergency medical care. See Dkt. No. 68 at 8, 12–13, 19, 21. Second, Plaintiffs argue 20 that CFMG should have referred Mr. Hernandez to a doctor or physician assistant for an 21 assessment of his weight loss. See id. at 2–4, 10; see also Dkt. No. 70 at 11–13, 15, 17. Had they 22 done so, Plaintiffs suggest, Mr. Hernandez would have been diagnosed and treated, and would not 23 have died. Id. 24 Defendants respond that Plaintiffs have failed to demonstrate a genuine dispute of material [25] 3 The Court understands that Plaintiffs believe the County is also liable for CFMG’s conduct since [26] it contracted with CFMG to provide inmates with care. See Dkt. No. 70 at 3–5, 11, 16. The County appears to dispute this. See Dkt. No. 65 at 20–21. However, the Court need not decide [27] this issue since it finds that there is not sufficient evidence supporting Plaintiffs’ theories of 1 fact as to the third and fourth elements of this claim—namely, that Defendants acted unreasonably 2 in the face of Mr. Hernandez’s serious medical need or that their conduct led to Mr. Hernandez’s 3 death. Critically, Defendants contend that Plaintiffs have not identified how Mr. Hernandez died, 4 and therefore have no evidence that Defendants’ actions—or inaction—caused Mr. Hernandez’s 5 death. Dkt. No. 65 at 1–2, 5–6, 10–14. To the contrary, they urge that Mr. Hernandez died 6 suddenly and unexpectedly, such that they could not have prevented his death. Id. 7 a. County Defendant 8 In the FAC, Plaintiffs initially argued that the County was responsible for Mr. Hernandez’s 9 death at a policy level due to inadequate staffing, training, and medical care. See FAC at ¶¶ 19, 10 24–27, 45–52. And as noted in footnote 2 above, Plaintiffs have conceded that they do not have 11 evidence to support their Monell claim. Now in opposition and as proposed in the SAC, Plaintiffs 12 argue instead that Deputy Han contributed directly to Mr. Hernandez’s death. Plaintiffs contend 13 that had Deputy Han followed the IOL protocol, he would have seen Mr. Hernandez when he first 14 showed signs of medical distress; he could have sent for medical assistance faster; and he 15 therefore could have saved Mr. Hernandez’s life. See Dkt. No. 68 at 8, 12–13, 19, 21. But even 16 viewing the evidence in the light most favorable to Plaintiffs, the Court finds that the record does 17 not support this theory. Plaintiffs have not identified any evidence to support their theory that 18 Deputy Han acted unreasonably given the information available to him at the time, or that his 19 conduct caused Mr. Hernandez’s death. See Gordon, 888 F.3d at 1125 (third and fourth elements 20 of deliberate indifference claim). 21 There is no dispute that when Deputy Han and Deputy Ramos first checked on Mr. 22 Hernandez on June 5 he was sitting on his bed. See Dkt. No. 65-1, Ex. A at 7–8. According to the 23 deputies, Mr. Hernandez was breathing normally and was not displaying any signs of distress. Id. 24 Plaintiffs do not offer any evidence to the contrary. Deputy Han then checked on Mr. Hernandez 25 approximately an hour and fifteen minutes later (an hour later than IOL protocol dictates), at 26 which point he was unresponsive. Id. at 13. Plaintiffs do not suggest that Deputy Han failed to 27 act appropriately once he found Mr. Hernandez unresponsive. Deputy Han entered the cell, called 1 compressions. Id. 2 Even assuming Mr. Hernandez died from an underlying and untreated medical condition, 3 Plaintiffs have not identified any evidence that a reasonable official in Deputy Han’s position 4 should have known of this condition or that Mr. Hernandez’s death was otherwise foreseeable. 5 Although the deputies were required to monitor Mr. Hernandez every fifteen minutes under the 6 IOL, this was initiated because he expressed suicidal ideation, not because of some underlying 7 health condition.4 See Dkt. No. 65-1, Ex. A at 16. Plaintiffs still suggest at several points in their 8 opposition that “any layperson could have observed” that Mr. Hernandez “was suffering from a 9 serious medical need.” See Dkt. No. 70 at 12, 14. Yet they do not cite any evidence that Mr. 10 Hernandez exhibited any visible signs of distress or other symptoms before his death. Nor is there 11 any evidence that Mr. Hernandez requested any assistance via the emergency call button in the cell 12 in the time between Deputy Han’s observations, although it was functional. See Dkt. No. 65-1, 13 Ex. A at 9. 14 Plaintiffs nevertheless urge that if Deputy Han had checked on Mr. Hernandez earlier— 15 between 3:20 p.m. and 4:20 p.m.—Mr. Hernandez would have survived. Here too, Plaintiffs’ 16 evidence falls short. The Court recognizes that generally “[c]ausation is an intensely factual 17 question that should typically be resolved by a jury.” Pac. Shores Properties, LLC v. City of 18 Newport Beach, 730 F.3d 1142, 1168 (9th Cir. 2013). But Plaintiffs do not cite any evidence to 19 support their conclusory assertion that Deputy Han could have prevented Mr. Hernandez’s death. 20 As the Ninth Circuit has explained, it is not the Court’s role “to scour the record in search of a 21 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quotation 22 omitted). Rather, “[w]e rely on the nonmoving party to identify with reasonable particularity the 23 evidence that precludes summary judgment.” Id. (quotation omitted). Plaintiffs’ failure to 24 marshal such evidence is itself dispositive. But having reviewed the record in detail, the Court has 25 not identified evidence to support Plaintiffs’ claim regarding Deputy Han either. [26] 4 Plaintiffs do not appear to contend that failure to follow the IOL protocol is itself an independent [27] basis to find that Deputy Han violated Mr. Hernandez’s constitutional rights. Nor could they. 1 Plaintiffs’ expert Dr. Alphonoso O. Swaby concludes that “[h]ad Mr. Hernandez been 2 directly observed at least every fifteen minutes as per policy, his condition would have been 3 recognized earlier and CPR started . . . .” See Dkt. No. 68-1, Ex. B at ¶ 1. But Dr. Swaby does 4 not identify Mr. Hernandez’s condition, let alone explain how Deputy Han—or any reasonable 5 official—would have recognized it if he had checked on Mr. Hernandez sooner. He simply offers 6 no support for this assertion. An expert’s ipse dixit is not enough on its own to defeat summary 7 judgment. See, e.g., Guidroz-Brault v. Missouri Pac. R. Co., 254 F.3d 825 , 830–31 (9th Cir. 8 2001) (rejecting expert opinions on summary judgment where “there was no factual basis for the 9 [expert’s] assumption”); Nelson v. Pima Cmty. Coll., 83 F.3d 1075 , 1081–82 (9th Cir. 1996) 10 (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary 11 judgment.”). 12 In any event, even if the Court were to credit Dr. Swaby’s conclusion that Deputy Han 13 could have started CPR sooner, Dr. Swaby only states that this “could have potentially saved Mr. 14 Hernandez’s life.” See Dkt. No. 68-1, Ex. B at ¶ 1 (emphasis added). This equivocal conclusion 15 is insufficient to support Plaintiffs’ theory that Deputy Han’s failure to observe Mr. Hernandez 16 actually caused his death. See White v. Roper, 901 F.2d 1501, 1505 (9th Cir. 1990) (noting that 17 conduct is an actual cause of injury “only if the injury would not have occurred ‘but for’ that 18 conduct”). At most, Dr. Swaby speculates that Deputy Han might have been able to save Mr. 19 Hernandez’s life if he had checked on him sooner. 20 The other evidence in the record also indicates that Mr. Hernandez’s death on June 5 was 21 rapid. Plaintiffs’ own expert Dr. Bennett Omalu explained that his review of tissue samples 22 indicated that Mr. Hernandez had “a type 3 myocardial injury/ necrosis, which will result in 23 sudden and unexpected death.” See Dkt. No. 68-2, Ex. A at 8 (emphasis added). Dr. Omalu 24 concluded that Mr. Hernandez “died as a result of Sudden Cardiogenic Death due to Advanced 25 Glomerulonephritis/ Chronic Interstitial Nephritis.” Id. at 9 (emphasis added). Drawing all 26 reasonable inferences in Plaintiffs’ favor, there is simply no evidence in the record sufficient for a 27 reasonable trier of fact to conclude that Deputy Han was deliberately indifferent to Mr. 1 insufficient to raise a constitutional violation. See Gordon, 888 F.3d at 1125 (quotation omitted). 2 b. CFMG Defendants 3 Part of the challenge in evaluating Plaintiffs’ claims against the CFMG Defendants is that 4 their theory of liability has evolved over the course of the case. Although at a high level Plaintiffs 5 have consistently argued that Mr. Hernandez died because Defendants did not provide him with 6 proper medical care, they have equivocated on the specific nature of Mr. Hernandez’s condition 7 and the cause of his death. See Dkt. No. 68 at 10 (“[Mr. Hernandez] died because ALAMEDA 8 and CFMG, by and through its staff, failed to provide proper medical care for Mr. Hernandez.”); 9 Dkt. No. 70 at 5, 10 (“He died because CFMG, by and through its staff, failed to provide proper 10 care for Mr. Hernandez even though they get paid millions of dollars to provide it.”). 11 In the FAC, Plaintiffs alleged that Defendants “failed to provide [Mr.] Hernandez with 12 proper medical care for his viral infection” and he “died by a viral infection as a result of 13 Defendants’ collective deliberate indifference to properly evaluating, monitoring and treating 14 him.” See FAC at ¶¶ 19, 27. According to the FAC, Mr. Hernandez had sent a letter to his 15 parents, which mentioned that he had been treated for some kind of infection. See id. at ¶ 19. 16 However, Plaintiffs appear to have abandoned the idea that Mr. Hernandez had an untreated viral 17 infection. 18 Instead, in opposition to the motions for summary judgment, Plaintiffs argue that Mr. 19 Hernandez exhibited unintended weight loss in the weeks before his death, which should have 20 alerted CFMG staff that Mr. Hernandez had an underlying medical condition that required 21 treatment. See Dkt. No. 68 at 9–10; Dkt. No. 70 at 4–5, 9–13, 15. Plaintiffs further argue that Mr. 22 Hernandez “would not have died since, with the exception of certain cancers (which decedent did 23 not have), all unintended weight loss, whether caused by viruses or not, is treatable.” See Dkt. No. 24 70 at 4, 9. During the hearing, Plaintiffs confirmed that Mr. Hernandez’s serious medical need, 25 for purposes of this claim, was his unintended weight loss. And when asked how Defendants’ 26 actions caused Mr. Hernandez’s death, Plaintiffs stated that the cause of his weight loss was 27 treatable. 1 untreated chronic kidney disease, as well as unintended weight loss. See SAC at ¶ 23 (arguing that 2 Mr. Hernandez died from “sudden cardiac distress arising from his untreated unintended weight 3 loss and chronic kidney disease.”). 4 As an initial matter, the Court notes that its job is not to ferret out Plaintiffs’ theory of the 5 case, or construct the theory that best fits the evidence. See, e.g., Carmen v. San Francisco 6 Unified Sch. Dist., 237 F.3d 1026 , 1031 (9th Cir. 2001) (“[I]n practical effect, the court becomes 7 the lawyer for the respondent, performing the lawyer’s duty of setting forth specific facts showing 8 that there is a genuine issue for trial. The movant is then denied a fair opportunity to address the 9 matter in the reply papers.”). Plaintiffs also cannot avoid summary judgment through obfuscation. 10 See Keenan, 91 F.3d at 1279 (cautioning against briefs that “obfuscate[] rather than promote[] an 11 understanding of the facts” on summary judgment); see also id. (“We rely on the nonmoving party 12 to identify with reasonable particularity the evidence that precludes summary judgment.”). The 13 Court therefore limits its review to the theory and evidence Plaintiffs appear to advance in 14 opposition to the motions for summary judgment: Mr. Hernandez exhibited signs of unintended 15 weight loss, and he ultimately died from the underlying cause of this weight loss and from 16 untreated chronic kidney disease. 17 Defendants do not appear to dispute that Mr. Hernandez experienced significant weight 18 loss in the weeks before he died. See generally Dkt. No. 66. Mr. Hernandez’s medical records 19 show that over the two months of his incarceration he lost 13 pounds. Compare Dkt. No. 65-1, 20 Ex. B at 23 (weighing 150 pounds at intake on April 1), with Dkt. No. 73, Ex. 3 at 53–54 21 (weighing 137 pounds on May 29). Plaintiffs’ experts opine that this amount of weight loss alone 22 should have prompted further evaluation. Dr. Swaby, for instance, says that “based on the 23 applicable standards of care,” the amount of weight Mr. Hernandez lost in such a short period of 24 time “should always warrant further evaluation” because “[u]nintended weight loss is often a 25 symptom of an underlying medical disorder.” See Dkt. No. 68-1, Ex. A at ¶¶ 1–2. 26 Dr. Omalu similarly states that unintended weight loss “becomes a critical medical concern 27 that requires critical medical evaluation . . . when an individual loses more than 5% of the[ir] body 1 8% of his body weight over the course of just two months (137 pounds / 150 pounds = ~8.6%). 2 Id. at 6. 3 Based on this evidence, the Court finds that there is sufficient evidence in the record to 4 create a triable issue of fact as to whether (1) Mr. Hernandez had a serious medical need 5 (unintended weight loss), (2) a reasonable official in Ms. Lebon’s position should have been aware 6 of it, and (3) CFMG staff did not take reasonable available measures to further evaluate the cause 7 of his weight loss. See Gordon, 888 F.3d at 1125 (third element of deliberate indifference claim). 8 Yet as with their claim against Deputy Han, CFMG Defendants argue that Plaintiffs have 9 not identified sufficient evidence as to causation. “[T]o prevail on a § 1983 claim under a 10 deliberate indifference theory, plaintiff must prove that the official’s actions were both the actual 11 and proximate cause of plaintiff’s injuries.” Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232 , 12 1242, n.3 (9th Cir. 2010), overruled on other grounds by Castro, 833 F.3d 1060 . Even assuming 13 CFMG staff should have conducted further evaluations of Mr. Hernandez’s weight loss, 14 Defendants contend that there is no evidence that Mr. Hernandez’s death was caused by this lack 15 of evaluation. 16 Although causation is ordinarily a question of fact which cannot be resolved at the 17 summary judgment stage, the Court agrees that there is a noticeable mismatch in Plaintiffs’ theory 18 that Mr. Hernandez died from untreated weight loss and chronic kidney disease and the opinions 19 of their medical experts—the only evidence that Plaintiffs identify. Despite Plaintiffs’ suggestion 20 otherwise, neither expert actually opines that Mr. Hernandez died from unintended weight loss and 21 neither expert opines that Mr. Hernandez’s chronic kidney disease could have been treated. In 22 fact, the experts’ initial reports appear to be in conflict. 23 Dr. Swaby concludes that had Mr. Hernandez’s weight loss been properly evaluated, 24 CFMG Defendants would have discovered and treated Mr. Hernandez’s pneumonia, which Dr. 25 Swaby says ultimately led to his death: [26] 27 • According to Dr. Swaby, Ms. Lebon should have assessed Mr. Hernandez’s vitals 1 oxygen saturation, etc.” And she should have referred Mr. Hernandez to a mid2 level care provider, particularly in light of his entire medical record. 3 • Dr. Swaby states that Mr. Hernandez’s parents thought that he had a persistent 4 cough in the weeks before his death. 5 • A proper “workup” would have included a physical exam, laboratory studies, and 6 radiological studies such as a chest X-ray (CXR). 7 • Had such a workup been done, Dr. Swaby opines, “a chest X-ray would likely have 8 discovered the pneumonia from which Mr. Hernandez was suffering.” 9 • Dr. Swaby notes that “[l]ung/chest infections . . . can typically be treated efficiently 10 with prescription medication in less severe cases or with more advanced 11 intervention, up to and including intubation in more severe cases.” Id. [12] 13 See Dkt. No. 68-1, Ex. A at ¶¶ 1–4. 14 Yet Plaintiffs do not argue that Mr. Hernandez died from pneumonia or another respiratory 15 illness. And in his rebuttal report, Dr. Swaby appears to change course and opine that Mr. 16 Hernandez actually died from chronic kidney disease. See Dkt. No. 68-1, Ex. B at 6–7. He 17 specifically cites Dr. Omalu’s report, discussed below, regarding Mr. Hernandez’s cause of death. 18 But Dr. Swaby does not explain how evaluating Mr. Hernandez’s unintended weight loss would 19 have detected Mr. Hernandez’s chronic kidney disease. Nor does he opine that it could have been 20 treated to prevent Mr. Hernandez’s death, even if identified. 21 Dr. Omalu, for his part, evaluated tissue samples, and states that the cause of death listed in 22 the autopsy “was grossly inaccurate.” See Dkt. No. 68-2, Ex. A at 6. Based on his own 23 evaluation, he believes Mr. Hernandez had “advanced,” “End-Stage” kidney disease. See id. at 8. 24 • Dr. Omalu states that this kidney disease “could have been caused by a myriad of 25 diseases including but not limited to metabolic and autoimmune diseases,” but the 26 actual cause is unknown because it was not “adequately clinically investigated.” 27 Id. 1 significant, and independent increased risk of suffering from cardiovascular events 2 including death, heart failure, and myocardial infarction . . . .” See Dkt. No. 68-2, 3 Ex. B at 3; see also Dkt. No. 68-2, Ex. A at 8–9. 4 • Consistent with this increased risk, Dr. Omalu concludes that Mr. Hernandez “died 5 as a result of Sudden Cardiogenic Death” from his underlying kidney disease. See 6 Dkt. No. 68-2, Ex. A at 9. 7 Although Dr. Omalu concludes that Mr. Hernandez’s death was “preventable and 8 avoidable,” see id., he does not opine that Mr. Hernandez’s kidney disease was (1) related to his 9 unintended weight loss; (2) would have been identified had Mr. Hernandez’s unintended weight 10 loss been properly evaluated; or (3) was treatable in any way. In short, Dr. Omalu does not 11 explain how Defendants’ specific conduct caused Mr. Hernandez’s death as required to support a 12 deliberate indifference claim. 13 Plaintiffs do not fill in these gaps. In their brief, Plaintiffs simply urge that “all unintended 14 weight loss, whether caused by viruses or not, is treatable.” See Dkt. No. 68 at 9. But neither of 15 Plaintiffs’ experts endorses this assertion, and Plaintiffs do not identify any other evidence in the 16 record to support this conclusion. Dr. Omalu, for example, states only that “most of the causes of 17 unintentional/ unexplained weight loss can be managed, treated, or controlled to significantly 18 reduce the progressive decline of health, and the risk of unexpected death.” See Dkt. No. 68-2, 19 Ex. A at 7 (emphasis added). He also provides a non-exhaustive list of 25 different causes of 20 weight loss, and states that “no adequate medical evaluation was performed on [Mr. Hernandez] to 21 determine the cause of his severe and critical unintentional/ unexplained weight loss.” See id. at 22 6–7; see also Dkt. No. 68-2, Ex. B (“He never received any medical evaluation or clinical work-up 23 to determine what was causing his weight loss.”). He does not, however, opine on the cause of 24 Mr. Hernandez’s weight loss or whether it could have been treated to prevent his death. 25 The Court recognizes that Plaintiffs have a difficult task in reconstructing and gathering 26 evidence about how Mr. Hernandez died, and whether Defendants’ acts or omissions caused his 27 death. But Plaintiffs cannot sidestep this difficulty by failing to explain or proffer evidence to 1 deliberately indifferent to Mr. Hernandez’s serious medical need. At this late stage in the case, 2 they must present sufficient evidence for a reasonable jury to conclude that by failing to properly 3 evaluate Mr. Hernandez’s unintended weight loss—the serious medical need they identify for 4 purposes of this claim—Defendants caused Mr. Hernandez’s death. See Gordon, 888 F.3d at 5 1125. They have failed to do so and summary judgment is thus warranted. 6 ii. Familial Association 7 Plaintiffs also argue that Defendants are liable under the Fourteenth Amendment for denial 8 of familial association. See Dkt. No. 68 at 13–14. 9 The Supreme Court has recognized that “choices to enter into and maintain certain intimate 10 human relationships must be secured against undue intrusion by the State because of the role of 11 such relationships in safeguarding the individual freedom that is central to our constitutional 12 scheme.” Roberts v. U.S. Jaycees, 468 U.S. 609 , 617–18 (1984). This freedom to enter into 13 intimate human relationships is not protected by the First Amendment, but rather by the 14 Fourteenth Amendment. See IDK, Inc. v. Cnty. of Clark, 836 F.2d 1185 , 1192 (9th Cir. 1988) (“In 15 protecting certain kinds of highly personal relationships, the Supreme Court has most often 16 identified the source of the protection as the due process clause of the fourteenth amendment, not 17 the first amendment’s freedom to assemble.”). The Ninth Circuit has explained that “a parent has 18 a constitutionally protected liberty interest in the companionship and society of his or her child.” 19 Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1991), as amended on denial of reh’g (June 20 16, 1992) (quotation omitted). However, “[o]nly official conduct that shocks the conscience is 21 cognizable as a due process violation.” Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 22 1062, 1075 (9th Cir. 2013) (quotation omitted). “A prison official’s deliberately indifferent 23 conduct will generally shock the conscience so as long as the prison official had time to deliberate 24 before acting or failing to act in a deliberately indifferent manner.” Id. (quotation omitted). 25 Here, Plaintiffs’ claim is derivative of their deliberate indifference claim. They argue that 26 they were deprived of their right to familial association with their son because Defendants did not 27 provide adequate medical attention to Mr. Hernandez’s serious medical need, which led to his 1 sufficient evidence for a reasonable jury to find that Defendants were deliberately indifferent to 2 Mr. Hernandez’s serious medical need. They have likewise failed to provide sufficient evidence 3 to support this claim as well. 4 iii. Wrongful Death 5 At least as alleged in the FAC, Plaintiffs assert a wrongful death claim under § 1983, in 6 addition to under California state law. See FAC at ¶¶ 29–33, 75–83. Plaintiffs removed this claim 7 in their proposed SAC, but in their opposition to the motions for summary judgment, Plaintiffs 8 appear to pursue a wrongful death claim under § 1983. See Dkt. No. 68 at 19. Defendants argue 9 that this is improper because there is not a standalone action for wrongful death under § 1983. See 10 Dkt. No. 74 at 7–8. The Court need not address this issue because like their claim for familial 11 association, Plaintiffs’ wrongful death claim is based on Defendants’ alleged deliberate 12 indifference. This claim therefore fails for the same reasons. As discussed in Section II.B.iv 13 below, the Court does not, however, decide Plaintiffs’ claim for wrongful death under California 14 state law. 15 * * * 16 At bottom, Plaintiffs’ case turns on the idea that Defendants are responsible for Mr. 17 Hernandez’s death because they did not investigate the “red flag” of unintended weight loss. 18 There is simply no evidence in the record from which a reasonable trier of fact could draw this 19 conclusion. The Court finds that Defendants are thus entitled to summary judgment as to all 20 Plaintiffs’ § 1983 claims. 21 iv. Supplemental Jurisdiction 22 Because the Court finds that Defendants are entitled to summary judgment on Plaintiffs’ 23 federal claims, all that remains are Plaintiffs’ state-law claims, which are encompassed by this 24 Court’s supplemental jurisdiction. See 28 U.S.C. § 1367 (a). But the Court may decline to 25 exercise supplemental jurisdiction if it has dismissed all claims over which it has original 26 jurisdiction. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (citing 28 27 U.S.C. § 1367 (c)(3)). “[I]n the usual case in which all federal-law claims are eliminated before 1 economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction 2 over the remaining state-law claims.” Id. (citation omitted) (alterations in original). The Court 3 finds this to be “the usual case,” and accordingly declines to exercise supplemental jurisdiction 4 and dismisses Plaintiffs’ state law claims without prejudice. 5 III. MOTION FOR LEAVE TO AMEND 6 A. Legal Standard 7 A party seeking to file a second or successive amendment generally “may amend its 8 pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 9 15(a). Under Federal Rule of Procedure 15(a)(2), “leave to amend shall be freely granted ‘when 10 justice so requires.’” See Townsend v. Univ. of Alaska, 543 F.3d 478, 485 (9th Cir. 2008) (quoting 11 Fed. R. Civ. P. 15(a)(2)). However, “[o]nce the district court ha[s] filed a pretrial scheduling order 12 pursuant to Federal Rule of Civil Procedure 16 which establishe[s] a timetable for amending 13 pleadings that rule’s standards control[].” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 , 14 607–08 (9th Cir. 1992). Rule 16 provides in relevant part that “[a] schedule may be modified only 15 for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b). The “good cause” 16 requirement of Rule 16 “primarily considers the diligence of the party seeking the amendment.” 17 Johnson, 975 F.2d at 609 (quotation omitted). “Although the existence or degree of prejudice to 18 the party opposing the modification might supply additional reasons to deny a motion, the focus of 19 the inquiry is upon the moving party’s reasons for seeking modification.” Id. 20 If the Court finds that the good cause requirement of Rule 16 is met, the moving party 21 “must then demonstrate that the motion is also proper under Rule 15.” Rodarte v. Alameda Cty., 22 No. 14-cv-00468-KAW, 2015 WL 5440788 , at *2 (N.D. Cal. Sept. 15, 2015). Under Rule 15, the 23 Court may exercise its discretion to deny leave to amend due to factors such as (1) bad faith, 24 (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) previous 25 amendments. See Foman v. Davis, 371 U.S. 178, 182 (1962); see also Wash. State Republican 26 Party v. Wash. State Grange, 676 F.3d 784, 797 (9th Cir. 2012) (same). 27 B. Discussion 1 September 2021, almost a year after the October 2020 deadline in the initial scheduling order. See 2 Dkt. No. 25. The Court therefore applies Rule 16’s good cause standard, and considers Plaintiffs’ 3 diligence in seeking the amendment. 4 Defendants assert that Plaintiffs are trying to change their theory of the case after the close 5 of expert discovery. See Dkt. No. 63. They further note that Plaintiffs knew Deputy Han’s 6 identity and knew about Mr. Hernandez’s weight loss and his kidney disease well before Plaintiffs 7 even filed the FAC back in March 2021. See id. at 4–5. They therefore suggest that Plaintiffs 8 could have amended the complaint earlier, and that their attempt to do so now is done in bad faith. 9 See id. at 4–5, 9. Defendants suggest that Plaintiffs are trying to gain a tactical advantage as the 10 Court considers Defendants’ motions for summary judgment. Id. at 9. 11 Plaintiffs contend that they are merely seeking to “conform[] the pleadings to the evidence 12 recently obtained . . . .” See Dkt. No. 62 at 2. Plaintiffs argue that at bottom, this case turns on the 13 cause of Mr. Hernandez’s death, and that this did not become clear to them until expert reports 14 were exchanged in August and September 2021. See id. at 7–8. Plaintiffs’ expert Dr. Omalu, for 15 example, was not able to obtain and test tissue samples until late July 2021. See id. at 5. 16 Although Plaintiffs may have been aware of Mr. Hernandez’s kidney disease and weight loss 17 before then, they assert that they did not understand the significance of this information until 18 expert discovery was underway. See Dkt. No. 67 at 5–6. Moreover, they contend that they needed 19 to understand Mr. Hernandez’s cause of death before they could determine if Deputy Han should 20 be added as a defendant. Id. If, for example, Mr. Hernandez “had died from a prolonged 21 infection,” Deputy Han’s failure to observe Mr. Hernandez in the hour before his death would 22 have been “immaterial” because Deputy Han could not have prevented Mr. Hernandez’s death. 23 Id. 24 Defendants do no explain how Plaintiffs should have known their proposed amendments 25 were necessary without input from their experts. Nor do Defendants appear to dispute that 26 Plaintiffs’ expert was not able to analyze tissue samples from the coroner until the end of July 27 2021. See Dkt. No. 62-1 at ¶ 15. Dr. Omalu’s resulting initial report was dated August 23, 2021. 1 Dr. Omalu finalized this report. The Court does not find a lack of diligence under these 2 || circumstances. 3 Nevertheless, the Court finds that amendment would be futile. During the hearing on the 4 || motions for summary judgment, Plaintiffs explained that from their perspective the factual record 5 would be the same, regardless of the proposed amendments. Plaintiffs opposed the motions for 6 summary judgment based on the evidence in the record and based on the theories of liability they 7 seek to refine in the SAC. The Court considered this evidence, including Dr. Omalu’s opinions 8 || about the cause of Mr. Hernandez’s death, as well as Plaintiffs’ arguments about why they believe 9 || Deputy Han could have prevented Mr. Hernandez’s death. Plaintiffs do not suggest that further 10 || discovery is warranted or would affect the motions for summary judgment in this case. But as 11 detailed in Section II above, the Court finds that summary judgment is still warranted in 12 Defendants’ favor as to the § 1983 claims based on this factual record. The Court therefore 13 DENIES the motion for leave to amend. 14 |) IV. CONCLUSION 15 Accordingly, the Court GRANTS Defendants’ motion for summary judgment as to a 16 Plaintiffs’ § 1983 claims for deliberate indifference, familial association and wrongful death. Dkt. 3 17 || Nos. 65, 66. The Court also GRANTS Defendants’ motion for summary judgment as to 18 Plaintiffs’ Monell claim. Id. The Court declines to exercise supplemental jurisdiction over 19 || Plaintiffs’ remaining state law claims and therefore DISMISSES those claims without prejudice 20 || to refiling in state court. The Court further DENIES Plaintiffs’ motion to amend the complaint. 21 The Clerk is directed to enter judgment in favor of Defendants as to the § 1983 and Monell claims 22 || and to close the case. 23 IT IS SO ORDERED. 24 || Dated: 1/23/2023 25 Alnpurl 8 Mb). HAYWOOD S. GILLIAM, JR. 26 United States District Judge