Case5:14-cv-05481-PSG Document1 Filed12/16/14 Page1 of 22

1 Dan Stormer, Esq. [S.B. # 101967] Josh Piovia-Scott, Esq. [S.B. #222364]

2 Mohammad Tajsar, Esq. [S.B. #280152]

HADSELL STORMER & RENICK LLP 3 128 N. Fair Oaks Avenue

4

Pasadena, California 91103 Telephone: (626) 585-9600

5 Facsimile: (626) 577-7079

Emails: dstormer@hadsellstormer.com

6

jps@hadsellstormer.com

7

mtajsar@hadsellstormer.com

8

Lori Rifkin, Esq. [S.B. # 244081] RIFKIN LAW OFFICE

9 P.O. Box 19169 Oakland, California 94619
10 Telephone: (415) 685-3591
Email: lrifkin@rifkinlawoffice.com 11

12 Attorneys for Plaintiffs

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

Estate of JACOB PARENTI, deceased, by and through MATTHEW

CASE NO:

16 OBERHOLTZ; D.P-O., a minor, by

17 18

and through his guardian, MATTHEW OBERHOLTZ; and SUSAN PARENTI,

COMPLAINT FOR DAMAGES 1. Failure To Provide Medical Care In
Violation Of Eighth And Fourteenth

19 vs.
20

Plaintiffs,

Amendments (42 U.S.C. § 1983); 2. Deprivation Of Substantive Due
Process In Violation Of First And

COUNTY OF MONTEREY;

Fourteenth Amendments (42 U.S.C. §

21 22

SHERIFF SCOTT MILLER, in his official and individual capacities; OFFICER COLLINS, in his individual

1983); 3. Failure To Furnish Medical Care (42

23

capacity; CALIFORNIA FORENSIC MEDICAL GROUP; and DR.

24 TAYLOR FITHIAN,

U.S.C. § 1983); ; 4. Negligent Supervision, Training,
Hiring, And Retention;

25

Defendants.

5. Negligence; and 6. Wrongful Death.

26

27

DEMAND FOR JURY TRIAL

28

COMPLAINT FOR DAMAGES

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1

INTRODUCTION

2

1. On January 15, 2014, Defendants left Jacob Parenti, a 33 year-old man

3 in Monterey County Jail for a probation violation, lying unconscious, helpless, and

4 untreated on his dorm bed to die. Through this lawsuit, Plaintiffs seek to hold

5 Defendants accountable for refusing to provide basic health care to Mr. Parenti,

6 resulting in his death.

7

2. At the time of Jacob Parenti’s death in January 2014, the Jail was

8 already the subject of a federal putative class action lawsuit regarding systemic

9 failures to provide adequate medical and mental health care, resulting in

10 unnecessary harm, suffering, and death. However, the County, its Sheriff and

11 officers have stubbornly refused to address these known issues and to adopt

12 policies, procedures, and practices to provide minimum standards of treatment for

13 inmates.

14

JURISDICTION

15

3. This Complaint seeks damages for the violation of the civil rights,

16 privileges, and immunities guaranteed by the First, Eighth, and Fourteenth

17 Amendments of the United States Constitution, pursuant to 42 U.S.C. §§ 1983 and

18 1988, as well as for violations of California state law.

19

4. This Court has jurisdiction over this lawsuit pursuant to 28 U.S.C. §§

20 1331 and 1343.

21

5. This Court has supplemental jurisdiction over the state law claims

22 asserted herein pursuant to 28 U.S.C. § 1367, because the claims form part of the

23 same case or controversy arising under the United States Constitution and federal

24 law.

25

VENUE

26

6. Plaintiffs’ claims, alleged herein, arose in the County of Monterey,

27 California. Venue therefore lies in the Northern District of California pursuant to 28

28 U.S.C. § 1391(b)(2).

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1

7. Rule 3 of the Federal Rules of Civil Procedure and Local Rule 3-2(e)

2 authorizes assignment to this division because a substantial part of the events or

3 omissions giving rise to Plaintiffs’ claims occurred in the counties served by this

4 division.

5

PARTIES

6

8. Plaintiff D.P-O. is the seven year-old minor son and sole heir of Jacob

7 Parenti. Plaintiff D.P-O. brings his individual claims by and through Matthew

8 Oberholtz, his legal guardian. They reside in Butte County, California.

9

9. Plaintiff D.P-O. also brings claims on behalf of the Estate of Jacob

10 Parenti, by and through his legal guardian Matthew Oberholtz, pursuant to

11 California Code of Civil Procedure §§ 377.10 et seq. At the time of his death, Jacob

12 Parenti was a 33 year-old citizen of the United States and resident of the County of

13 Monterey in the State of California. The survival causes of action in this matter are

14 based on violations of Jacob Parenti’s rights under the U.S. Constitution and

15 California state law.

16

10. Plaintiff Susan Parenti is the mother of Jacob Parenti, and resides in

17 Monterey County, California. She is suing individually for violations of civil rights

18 under the First and Fourteenth Amendments and California state law.

19

11. Defendant County of Monterey is a public entity, duly organized and

20 existing under the laws of the State of California. Under its authority, Defendant

21 County of Monterey operates and manages Monterey County Jail and is and was at

22 all relevant times mentioned herein responsible for the actions and/or inactions and

23 the policies, procedures, and practices/customs of the Monterey County Sheriff’s

24 Office and Monterey County Jail, and each entity’s respective employees and/or

25 agents. Monterey County Sheriff’s Office operates Monterey County Jail, and is

26 and was responsible for ensuring the provision of emergency and medical and

27 mental health care services to all Monterey County Jail inmates. Monterey County

28 Sheriff’s Office also operates the Office of the Coroner.

COMPLAINT FOR DAMAGES

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1

12. Defendant Scott Miller is, and was at all relevant times mentioned

2 herein, the Sheriff-Coroner of the County of Monterey, the highest position in the

3 Monterey County Sheriff’s Office. As Sheriff-Coroner, Defendant Miller is and

4 was responsible for the hiring, screening, training, retention, supervision, discipline,

5 counseling, and control of all Monterey County Sheriff’s Office custodial

6 employees and/or agents. Defendant Miller is and was charged by law with the

7 administration of the Monterey County Jail, and is responsible for safety and

8 security of inmates housed at the Jail. Defendant Miller also is and was responsible

9 for the promulgation of the policies and procedures and allowance of the

10 practices/customs pursuant to which the acts of the Monterey County Sheriff’s

11 Office alleged herein were committed. As Sheriff-Coroner, Defendant Miller is

12 also charged with oversight of the Coroner’s Division of the Monterey County

13 Sheriff’s Office. Defendant Miller is being sued in his individual and official

14 capacities.

15

13. Defendant Collins is, and was at all relevant times mentioned herein,

16 an officer in the Monterey County Sheriff’s Office. While on shift at the Jail, he

17 was and is responsible for the safety and security of inmates including inmates in

18 his assigned wing(s). On January 15, 2014, Defendant Collins was on duty at the

19 Monterey County Jail and participated in announcing inmates in D-wing for sick

20 call, including Jacob Parenti. When Mr. Parenti did not respond for sick call,

21 Defendant Collins entered the dorm and walked to Mr. Parenti’s bunk. Defendant

22 Collins unsuccessfully attempted to rouse Mr. Parenti verbally and physically.

23 Despite Mr. Parenti’s clear inability to respond, and a clear need for emergency

24 medical treatment, after this attempt, Defendant Collins simply left the dormitory

25 and did not provide or summon assistance for Mr. Parenti.

26

14. Defendant California Forensic Medical Group (“CFMG”) is a

27 California corporation headquartered based in Monterey, California. CFMG is a

28 private for-profit correctional health care provider that services approximately 65

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1 correctional facilities in 27 California counties. The County of Monterey contracts

2 with CFMG to provide medical, mental health, and dental services for the Monterey

3 County Jail. The Institute for Medical Quality (IMQ) declined to certify CFMG’s

4 services at the Monterey County Jail, and IMQ has accredited only 9 of CFMG’s

5 approximately 65 facilities in California. At all times relevant herein, CFMG was

6 responsible for the health services provided to Jacob Parenti during his detention in

7 the Monterey County Jail.

8

15. Defendant Taylor Fithian is, and was at all relevant times mentioned

9 herein, the co-founder, President, and Medical Director for Defendant CFMG.

10 Defendant Fithian is a Board-certified psychiatrist and oversees the delivery of

11 medical, mental health and dental care in all CFMG-served facilities, including

12 standards of medical care and utilization review. Defendant Fithian is and was

13 responsible for the promulgation of the policies and procedures and allowance of

14 the practices/customs pursuant to which the acts of California Forensic Medical

15 Group alleged herein were committed. In addition, Defendant Fithian personally

16 provides health services at Monterey County Jail. Defendant Fithian is sued in his

17 individual capacity.

18

16. Defendants Miller, Collins, and Fithian engaged in the acts or

19 omissions described herein under color of state law.

20

17. Plaintiffs are informed and believe and thereon allege that at all times

21 mentioned in this Complaint, Defendants, and each of them, were the agents,

22 employees, servants, joint venturers, partners and/or co-conspirators of the other

23 Defendants named in this Complaint and that at all times, each of the Defendants

24 was acting within the course and scope of said relationship with Defendants.

25

EXHUASTION OF PRE-LAWSUIT PROCEDURES FOR

26

STATE LAW CLAIMS

27

18. Plaintiffs filed governmental tort claims with Defendant County of

28 Monterey on behalf of the Estate of Jacob Parenti, Susan Parenti, and D.P-O. on

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1 July 3, 2014. By correspondence dated August 7, 2014, the County of Monterey

2 rejected the governmental tort claims.

3

FACTUAL ALLEGATIONS

4 I. History of Inadequate Medical Care in Monterey County Jail

5

19. County of Monterey, Monterey County Sheriff’s Office, CFMG, and

6 Taylor Fithian have been on notice that their provision of medical care to inmates at

7 the Monterey County Jail is inadequate and results in needless harm and suffering

8 since at least 2007, when the Monterey County Sheriff’s Office and the Monterey

9 County Board of Supervisors hired an outside consulting firm to perform a needs

10 assessment for the Jail. (See Ex. 1.) The 2007 Assessment concluded that the Jail

11 was severely overcrowded, lacked adequate numbers of staff, and that

12 “medical/mental health treatment spaces are not adequate for the rated beds, let

13 alone the actual number of inmates held.” (Ex. 1 at 1, Executive Summary at 1.) It

14 further concluded that shortfalls in staffing result in hiring of “pre-academy”

15 officers, unmanageable supervision loads for first line supervisors, and insufficient

16 staff on some shifts to make required safety checks. The Monterey County Board of

17 Supervisors accepted the report by unanimous vote on June 19, 2007.

18

20. At the request of Defendant Miller, the independent assessment was

19 updated in 2011 and found that County of Monterey physical facilities and their

20 policies and practices for delivering medical treatment remained inadequate. The

21 2011 Assessment similarly found that the Jail’s “Medical/mental health treatment

22 spaces are not adequate for the rated beds, let alone the actual number of inmates

23 held” and therefore prevent adequate delivery of medical health care. (Ex. 2,

24 Executive Summary at 3.) The 2011 Assessment further noted the direct impact on

25 overcrowding on prisoners’ overall health, stating that “Overcrowding affects

26 inmates’ mental and physical health by increasing the level of uncertainty with

27 which they regularly cope.” (Ex. 2, Executive Summary at 9.)

28

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1

21. The Assessment also found that chronic understaffing hinders the

2 County of Monterey’s ability to provide medical care, classify and move inmates

3 within the facility, maintain inmate safety and security, and transport inmates to and

4 from outside agencies. (Ex. 2, Executive Summary at 6, 8.)

5

22. Both the 2007 Needs Assessment and the 2011 Jail Needs Assessment

6 concluded that, “[t]he current combination of insufficient beds, an inadequate

7 detention facility and understaffing has resulted in an almost untenable situation.”

8 (Ex. 1, Executive Summary at 1–2, A.3; Ex. 2, Executive Summary at 2, A.2.)

9

23. Much of the 2011 Assessment’s findings were confirmed in a 2013

10 draft report by an expert hired by the County of Monterey, Dr. Richard Hayward

11 (“Hayward Report”). (See Ex. 3.) The County tasked Dr. Hayward with evaluating

12 mental health care at Monterey County Jail in response to a federal class action

13 lawsuit challenging Monterey County’s provisions of medical and mental health

14 care at the Jail. See Hernandez v. Cnty. Of Monterey, No. 13-cv-2354-PSG (N.D.

15 Cal. Filed May 23, 2013). The Hayward Report, dated December 6, 2013, identified

16 serious deficiencies in the delivery of medical health care at the Monterey County

17 Jail, including inmates not receiving responses to their written health requests.

18 According to the Hayward Report, “the current procedures lack a systematic

19 method of auditing receipt of and responses to all inmate requests for health

20 services.” (Ex. 3 at 3.)

21

24. Further, according to the allegations contained in the Hernandez v.

22 County of Monterey complaint (Ex. 4), the Jail fails to:

23

a. Provide medically necessary treatments for prisoners upon their

24

arrival at the Jail (Ex. 4 at 42–43, 52–55);

25

b. Provide adequate care in emergency situations (Ex. 4 at 55–59);

26

c. Provide adequate diagnostic care to prisoners, including failing

27

to appropriately refer prisoners to outside specialists when

28

necessary (Ex. 4 at 59–61);

COMPLAINT FOR DAMAGES

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1

d. Provide post-operative and other medically necessary follow-up

2

care to prisoners (Ex. 4 at 61–64); and

3

e. Maintain adequate, accurate, and complete medical care records

4

(Ex. 4 at 64–67).

5

25. Moreover, on April 15, 2013, County of Monterey was again

6 specifically put on notice of the serious problems with its delivery of

7 constitutionally adequate health care in the jail as well as its failure to protect

8 prisoners from harm in a letter sent to the County from counsel for plaintiffs in

9 Hernandez v. County of Monterey. (See Ex. 5 at 4–8.) These problems include

10 inadequate screening processes for identifying prisoners with serious and chronic

11 medical issues, refusal to continue treatment prisoners were already prescribed,

12 imposition of punitive “detox” procedures that deny prisoners their prescribed pain

13 medications, and denial of necessary treatment to prisoners to avoid the expense of

14 such treatment. (Id. at 6–7.) The letter also identifies the Jail’s overcrowding and

15 understaffing as reasons why prisoners are not protected from harm when

16 incarcerated. (Id. at 8.)

17

26. As of the date of this filing, at least three inmates of Monterey County

18 Jail have died in the custody of Monterey County officials in 2014, including Jacob

19 Parenti. See Allison Gatlin, “Third inmate this year dies in Monterey County Jail,”

20 THE SALINAS CALIFORNIAN, Oct. 27, 2014, available at http://goo.gl/ky5Gve.

21 II. Jacob Parenti’s Death

22

27. Jacob Parenti was born in Aromas, California, in 1980. In 1982, his

23 family moved to Monterey, California.

24

28. Mr. Parenti is described by those who knew him as an unusually

25 thoughtful, personable, and caring individual, who took time to listen and connect

26 with others.

27

29. He attended public school in Monterey, California, where he excelled

28 in golf. Although he did not graduate from high school, he earned his GED.

COMPLAINT FOR DAMAGES

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1

30. Mr. Parenti lived primarily with his mother, Susan Parenti, and father,

2 Phil Parenti, until his father passed away when Jacob Parenti was approximately

3 eighteen years old.

4

31. During a portion of his teen years, and after his father passed away,

5 Jacob Parenti lived with his half-sister, Amy Vye (née Parenti), and half-brother,

6 Americo Parenti, who are thirteen and ten years older than Jacob, respectively, and

7 with whom he was very close.

8

32. After Mr. Parenti’s son, D.P-O., was born in 2007, D.P-O. lived with

9 his birth mother in San Luis Obispo. Mr. Parenti had an ongoing relationship with

10 D.P-O., making child support payments and regular visits when possible to spend

11 time with D.P-O. in San Luis Obispo. Mr. Parenti also brought D.P-O. to spend

12 time with his family, including his sister, Amy Vye, and his older cousin, Matthew

13 Oberholtz, with whom Mr. Parenti was also very close.

14

33. In 2012, Mr. Parenti was the property manager for a residential

15 property in Monterey. In this capacity, he restored the property, brought it up to

16 code, and managed that residence.

17

34. In late 2012, Mr. Parenti petitioned for custody of D.P-O. because

18 D.P-O.’s birth mother was not able to provide a stable home for D.P-O. Mr. Parenti

19 wanted to ensure that his son was taken care of and provided a stable, healthy

20 environment. Mr. Parenti was aware of his own challenges, including struggling

21 with substance addiction, and told his family members that he was not going to let

22 what happened to him happen to his son. Because of this self-awareness, before

23 petitioning for custody of D.P-O., Mr. Parenti asked his cousin, Mr. Oberholtz, if he

24 would be willing to provide a stable home for D.P-O. in the event Mr. Parenti was

25 unable to do so. Mr. Oberholtz lives in Butte County where he runs a waterski

26 school for able bodied and disabled athletes, and has long been involved in

27 coaching teams for paralympic athletes, including the U.S. paralympic waterskiing

28 team. Mr. Oberholtz agreed, and spent considerable time with Mr. Parenti and D.P-

COMPLAINT FOR DAMAGES

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1 O.

2

35. At the beginning of 2013, Mr. Parenti and Mr. Oberholtz jointly

3 attended a court hearing at which Mr. Parenti was awarded primary custody of D.P-

4 O. Mr. Parenti brought D.P-O. to Monterey to live with him there, and enrolled

5 D.P-O. in school and extracurricular activities.

6

36. In February 2013, Mr. Parenti was charged with a probation violation

7 for which he was given a three month sentence. In order to ensure that D.P-O.

8 would have as much stability as possible, and not continue to be placed in and out

9 of different homes and schools, Mr. Parenti asked Mr. Oberholtz to assume

10 guardianship of his son at this time. D.P-O. moved to live with Mr. Oberholtz in

11 Oroville, California.

12

37. After Mr. Parenti was released from custody in April 2013, he was

13 employed at a medical marijuana farm, and was interviewing for a position with the

14 Sign and Display Union, which sets up and takes down displays at the Moscone

15 Center. In addition to his position as property manager, he had also previously

16 worked in computer repairs and as an assistant foreman for an asphalt and seal

17 coating company.

18

38. Mr. Parenti also regularly helped his mother, Susan Parenti, by doing

19 household chores, making food for her, helping with car and computer

20 maintenance, assisting her with physical tasks she was unable to complete because

21 of disabilities following back surgery, including physically carrying her and

22 otherwise helping her to move around the house, and acting as her caretaker with

23 respect to some of her medical and physical needs.

24

39. In mid-2013, Mr. Parenti was charged with a probation violation for

25 possessing a small amount of marijuana as part of a vehicle stop on his way home

26 from work. On information and belief, Mr. Parenti was offered a choice between a

27 one-year jail term, after which, he would no longer be on probation, or a two-year

28 extension of his probation. Mr. Parenti chose the jail term because he wanted to be

COMPLAINT FOR DAMAGES

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1 able to move up to Butte County to live near D.P-O., and an extended probation

2 term would delay his ability to move because the conditions of his probation

3 restricted residency to Monterey County.

4

40. Mr. Parenti began the one-year jail term for this probation violation at

5 Monterey County Jail on or around August 1, 2013.

6

41. Mr. Parenti actively maintained a relationship with his son while he

7 was in Jail, including writing letters and cards to him in which Mr. Parenti told D.P-

8 O. how much he loved him and that he was proud of him.

9

42. Mr. Parenti also maintained relationships with his other family

10 members while he was in Jail, including his mother, sister, brother, and other

11 family. He spoke with them regularly by telephone and exchanged letters with

12 them. He also wrote to his six year-old niece, Ms. Vye’s daughter, sending her

13 special birthday and holiday cards.

14

43. Mr. Parenti was housed in the D-wing dormitory of Monterey County

15 Jail, which is a medium security unit and houses approximately 90-100 men in a

16 dorm setting, with bunk beds and tables.

17

44. Throughout the first months of his incarceration, Mr. Parenti informed

18 his mother that the Jail was not consistently providing him his prescribed blood

19 pressure and psychotropic medications. Susan Parenti called the Jail many times

20 and physically brought Mr. Parenti’s medications to the Jail and handed them to a

21 nurse at the Jail in order to attempt to ensure that Mr. Parenti received his

22 medications.

23

45. On or around January 10, 2014, Mr. Parenti developed flu-like

24 symptoms. He followed the Jail’s procedures for seeking medical care and put in a

25 sick call request by filling out a written request, and placing it in the front gate of

26 D-wing. On this sick call slip, Mr. Parenti wrote “have the flu.”

27

46. Around the same time period, Mr. Parenti began coughing up blood.

28 / / /

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1

47. Mr. Parenti did not receive a medical appointment in response to the

2 sick call request he put in on January 10, 2014. He put in another sick call request

3 slip on or around January 12, 2014, following the above-described protocol.

4

48. Mr. Parenti continued coughing up blood that was thick and mucous-

5 like. He was not called for sick call January 13 or 14, 2014.

6

49. Early in the morning of January 15, 2014, at approximately 3:45 a.m.,

7 when the Jail provided D-wing inmates breakfast, Mr. Parenti was awake and alert,

8 and interacting with other inmates.

9

50. At around 9:45 a.m. on January 15, 2014, Defendant Collins stood at

10 the gate of D-wing, where Mr. Parenti was housed, and called for several inmates to

11 get dressed to see the nurse, including Mr. Parenti.

12

51. Mr. Parenti was laying on his bunk and did not and could not respond

13 even after Defendant Collins called his name multiple times.

14

52. At that point, Defendant Collins entered D-wing, went over to Mr.

15 Parenti’s bunk, and said his name several more times. Mr. Parenti remained

16 unresponsive, although he was still breathing in a labored fashion. Defendant

17 Collins then repeatedly tapped and/or shook Mr. Parenti, but Mr. Parenti remained

18 unresponsive.

19

53. Deputy Collins then left D-wing without providing or summoning any

20 medical attention for Mr. Parenti, despite the clear and apparent need for urgent

21 medical treatment based on his inability to wake up Mr. Parenti and Mr. Parenti’s

22 submissions of requests for medical attention.

23

54. Over the next hour, Defendants’ officers and staff, including Deputy

24 Collins and medical staff, failed, refused, and/or neglected to provide medical

25 attention to an inmate in their custody in obvious and serious need of immediate

26 medical attention. Neither Deputy Collins nor any other jail staff returned to check

27 on Mr. Parenti or provide him with medical attention.

28 / / /

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1

55. At approximately 10:45 a.m. that same morning, inmates in Mr.

2 Parenti’s housing unit noticed that he had stopped breathing and his face had a

3 bluish tint. Several inmates pulled him down from the bunk and attempted to

4 resuscitate him while other inmates called “man-down” and attempted to get the

5 attention of the deputies in the jail by banging on the gate of the unit.

6

56. After one inmate had already started CPR on Mr. Parenti, deputies

7 arrived in the unit, followed by Fire Department personnel and nurses. On

8 information and belief, the Jail deputies did not attempt CPR on Mr. Parenti. At

9 some point after they arrived, medical personnel made some attempt to resuscitate

10 Mr. Parenti, but this was unsuccessful.

11

57. At 11:05 a.m. on January 15, 2014, Mr. Parenti was pronounced dead.

12

58. In the evening of January 15, 2014, Susan Parenti, Mr. Parenti’s

13 mother, received a phone call from an inmate at Monterey County Jail during which

14 the inmate informed her that Mr. Parenti had died. Ms. Parenti had not previously

15 received any notification of her son’s death from Monterey County Jail officers or

16 other employees.

17

59. On January 23, 2014, jail staff was quoted in a local newspaper as

18 saying that Mr. Parenti died of a drug overdose. On information and belief, at the

19 time, the County had not yet received results of any toxicology report for Mr.

20 Parenti nor had the Coroner’s Office completed its autopsy report.

21

60. Mr. Parenti’s family raised funds and arranged for an independent

22 autopsy of Mr. Parenti’s body to be conducted.

23

61. On January 24, 2014, the autopsy administrator for the independent

24 autopsy notified the Coroner’s Office that the family had arranged for an

25 independent autopsy to be conducted for Mr. Parenti.

26

62. Although the Monterey County Coroner’s Report eventually

27 concluded that Mr. Parenti died due to acute mixed drug intoxication, toxicology

28 analysis of Mr. Parenti’s blood does not support this conclusion.

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1

63. Based on the findings of the independent autopsy, Parenti’s death

2 resulted from viral influenza syndrome complicated by pneumonia.

3

64. At the time of Mr. Parenti’s death, the Monterey County Sheriff’s

4 Office and CFMG knew there to be a high prevalence of influenza in Monterey

5 County, including the H1N1 flu virus.

6

65. News media reported that the Monterey County Sheriff’s Office

7 announced that another Monterey County Jail inmate died from influenza-related

8 complications on or around January 20, 2014. According to news reports, that

9 inmate was transferred from the Jail to a local hospital on January 12, 2104, after he

10 complained of trouble breathing. On information and belief, that inmate had

11 submitted multiple sick call slips before he finally received medical attention at the

12 Jail.

13

66. Influenza and pneumonia are treatable medical conditions.

14

67. Defendants Monterey County and CFMG did not provide appropriate

15 medical care to Mr. Parenti despite knowledge of viral influenza at Monterey

16 County Jail and Mr. Parenti’s self-report of flu-like symptoms.

17

68. With adequate, basic medical treatment, Mr. Parenti’s death would

18 have been avoided.

19

69. Defendants failed to provide appropriate urgent and emergency

20 medical care to Mr. Parenti, despite his clear and obvious need for such treatment.

21

70. Had Defendants, including Defendant Collins, responded appropriately

22 to Mr. Parenti’s clear need for emergency medical attention on the morning of

23 January 15, 2104, including seeking and providing such treatment to Mr. Parenti,

24 his death would have been avoided.

25

71. Mr. Parenti’s family members, including Plaintiffs Susan Parenti and

26 D.P-O., as well as his sister, Amy Vye, and brother, Americo Parenti, have been

27 deeply impacted by his untimely death and the circumstances thereof.

28 / / /

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1

72. Plaintiff Susan Parenti, Mr. Parenti’s mother, continues to experience

2 emotional distress as a result of Mr. Parenti’s death, the manner of his death, and

3 the subsequent actions of Defendants, as well as loss of physical support from Mr.

4 Parenti in performing activities of daily life in the context of her disabilities.

5

73. Plaintiff D.P-O. lost his father, with whom he had a significant

6 relationship before, during, and after the time period during which Mr. Parenti was

7 D.P-O.’s primary caretaker. Plaintiff D.P-O. lost both the future emotional and

8 financial support of Mr. Parenti as a result of Mr. Parenti’s death.

9

74. While Mr. Parenti was housed in D-wing of the Jail, he made a

10 significant impression on the men housed with him. They describe him as friendly

11 and caring, and as a person with a lot of positivity who always had a smile or a joke

12 to tell if someone was having a bad day.

13

75. After Mr. Parenti’s death, some of the men in D-wing made a

14 memorial for him, including a sketch of Mr. Parenti and a cross, and put it up on the

15 wall of the Jail dormitory. However, deputies at the Jail instructed them to remove

16 the memorial, and withheld television, commissary, and visiting privileges until the

17 men took down the memorial.

18 CLAIMS FOR RELIEF
19 First Claim for Relief
20 Deliberate Indifference to Serious Medical Needs and Failure to Protect from
21 Harm in Violation of the Eighth and Fourteenth Amendments to the
22 Constitution of the United States (Survival Action – 42 U.S.C. § 1983)
23 (Against All Defendants)
24 76. Plaintiffs re-allege and incorporate by reference paragraphs 1 through
25 75 as though fully set forth herein.
26 77. Defendants failed to provide Mr. Parenti with necessary and
27 appropriate medical care. They failed to adequately address Mr. Parenti’s medical
28

COMPLAINT FOR DAMAGES

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1 needs up to and including this incident, and they failed to appropriately summon

2 emergency medical care when Mr. Parenti was nonresponsive on January 15, 2014.

3

78. Defendant Collins failed to respond appropriately to Mr. Parenti’s

4 emergency medical needs on January 15, 2014.

5

79. Defendants County of Monterey, Miller, and CFMG failed to ensure

6 that appropriate policies, procedures, and practices were in place to guide

7 Defendant Collins in responding to medical emergencies, and filed to provide

8 adequate training to Defendant Collins on response to medical emergencies.

9

80. In addition to the individual failures enumerated above, Monterey

10 County, Monterey County Sheriff’s Office, and California Forensic Medical Group

11 failed to adopt and implement adequate policies, procedures, training, and

12 supervision to ensure the provision of appropriate medical care and emergency

13 response in the Jail.

14

81. Monterey County, Monterey County Sheriff’s Office, Deputy Collins,

15 and other jail staff had a duty to protect Mr. Parenti from harm, and failed to do so.

16

82. Defendants have inadequate policies, procedures, and practices for

17 identifying inmates in need of medical treatment and providing appropriate medical

18 treatment. Defendants also fail to appropriately train and supervise staff regarding

19 the regarding the provision of medical treatment to inmates.

20

83. Defendants have consistently failed to meet their constitutional

21 obligation to provide adequate medical treatment to prisoners in their jail.

22 Defendants’ failure to correct their policies, procedures, and practices, despite

23 notice of significant and dangerous problems, evidences deliberate indifference in

24 the provision of medical treatment.

25

84. Defendants’ acts and/or omissions as alleged herein, including but not

26 limited to their failure to provide Jacob Parenti with appropriate medical care, along

27 with the acts and/or omissions of the Defendants in failing to train, supervise and/or

28 promulgate appropriate policies and procedures in order to identify medical need

COMPLAINT FOR DAMAGES

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Case5:14-cv-05481-PSG Document1 Filed12/16/14 Page17 of 22

1 and provide appropriate treatment, constituted deliberate indifference to Jacob

2 Parenti’s serious medical needs, health and safety.

3

85. As a direct and proximate result of Defendants’ conduct, Jacob Parenti

4 experienced physical pain, emotional distress, and mental anguish, as well as loss

5 of his life and other damages alleged herein.

6

86. The aforementioned acts and/or omissions of Defendants Miller, in his

7 individual capacity, Collins, CFMG, and Fithian were willful, wanton, malicious,

8 and oppressive, thereby justifying an award to Plaintiffs of exemplary and punitive

9 damages to punish the wrongful conduct alleged herein and to deter such conduct in

10 the future.

11

Second Claim for Relief

12

Deprivation of Substantive Due Process Rights in Violation of First and

13

Fourteenth Amendments to the Constitution of the United States –

14

Loss of Parent/Child Relationship (42 U.S.C. § 1983)

15

(Against All Defendants)

16

87. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

17 86 as though fully set forth herein.

18

88. The aforementioned acts and/or omissions of Defendants in being

19 deliberatively indifferent to Jacob Parenti’s serious medical needs, health and

20 safety, violating Mr. Parenti’s constitutional rights, and their failure to train,

21 supervise, and/or take other appropriate measures to prevent the acts and/or

22 omissions that caused the untimely and wrongful death of Jacob Parenti deprived

23 Plaintiffs Susan Parenti and D.P-O. of their liberty interests in the parent-child

24 relationship in violation of their substantive due process rights as defined by the

25 First and Fourteenth Amendments to the United States Constitution.

26

89. As a direct and proximate result of the aforementioned acts and/or

27 omissions of Defendants, Plaintiffs suffered injuries and damages as alleged herein.

28 / / /

COMPLAINT FOR DAMAGES

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1

90. The aforementioned acts and/or omissions of Defendants Miller, in his

2 individual capacity, Collins, CFMG, and Fithian were willful, wanton, malicious,

3 and oppressive, thereby justifying an award to Plaintiffs of exemplary and punitive

4 damages to punish the wrongful conduct alleged herein and to deter such conduct in

5 the future.

6

Third Claim for Relief

7

Failure to Furnish / Summon Medical Care

8

(Survival Action – California State Law)

9

(Against All Defendants)

10

91. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

11 90 as though fully set forth herein.

12

92. Defendants owed Jacob Parenti a duty of care to provide him

13 immediate medical care.

14

93. The conduct of Defendants alleged herein, including but not limited to

15 the facts that Defendants knew or had reason to know that Jacob Parenti was in

16 need of immediate medical care and that Defendants failed to take reasonable

17 action to summon or provide that care, resulting in Jacob Parenti’s death as alleged

18 herein, violated California state law, including Cal. Govt. Code §§ 844.6 and 845.6.

19

94. The alleged conduct of Defendants was committed within the course

20 and scope of their employment.

21

95. As a direct and proximate result of Defendants’ breach, Jacob Parenti

22 and Plaintiffs suffered injuries and damages causing great pain and leading to

23 Parenti’s death, as alleged herein.

24

96. The aforementioned acts and/or omissions of Defendants Miller, in his

25 individual capacity, Collins, CFMG, and Fithian were willful, wanton, malicious,

26 and oppressive, thereby justifying an award to Plaintiffs of exemplary and punitive

27 damages to punish the wrongful conduct alleged herein and to deter such conduct in

28 the future.

COMPLAINT FOR DAMAGES

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1

Fourth Claim for Relief

2

Negligent Supervision, Training, Hiring, and Retention

3

(Survival Action – California State Law)

4

(Against Defendants County of Monterey, Miller, CFMG, and Fithian)

5

97. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

6 96 as though fully set forth herein.

7

98. Defendants had a duty to hire, supervise, train, and retain employees

8 and/or agents so that employees and/or agents refrain from the conduct and/or

9 omissions alleged herein.

10

99. Defendants breached this duty, causing the conduct alleged herein.

11 Such breach constituted negligent hiring, supervision, training, and retention under

12 the laws of the State of California.

13

100. As a direct and proximate result of Defendants’ failure, Jacob Parenti

14 and Plaintiffs suffered injuries and damages as alleged herein.

15

Fifth Claim for Relief

16

Negligence (Survival Actions – California State Law)

17

(Against All Defendants)

18

101. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

19 100, as though fully set forth herein.

20

102. Defendants failed to comply with professional standards in the

21 provision of medical care to Jacob Parenti by failing to appropriately assess and

22 evaluate his medical needs, failing to provide timely and emergency medical

23 attention, failing to provide appropriate medical treatment, and failing to adopt the

24 minimum policies, procedures, and training necessary to ensure identification of

25 and response to of medical emergencies.

26

103. These Defendants also failed to appropriately supervise, review, and

27 ensure the competence of medical staff’s and custody staff’s provision of treatment

28 to Parenti, and failed to enact appropriate standards and procedures that would have

COMPLAINT FOR DAMAGES

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1 prevented such harm to him.

2

104. Together, these Defendants acted negligently and improperly,

3 breached their respective duties, and as a direct and proximate result, Plaintiffs

4 suffered injuries and damages as alleged herein.

5

105. The negligent conduct of Defendants was committed within the course

6 and scope of their employment.

7

106. The aforementioned acts and/or omissions of Defendants Miller, in his

8 individual capacity, Collins, CFMG, and Fithian were willful, wanton, malicious,

9 and oppressive, thereby justifying an award to Plaintiffs of exemplary and punitive

10 damages to punish the wrongful conduct alleged herein and to deter such conduct in

11 the future.

12

Sixth Claim for Relief

13

Wrongful Death – California Code Civ. Proc. § 377.60

14

(Against All Defendants)

15

107. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

16 106, as though fully set forth herein.

17

108. Jacob Parenti’s death was a direct and proximate result of the

18 aforementioned wrongful and/or negligent acts and/or omissions of Defendants.

19 Defendants’ acts and/or omissions thus were also a direct and proximate cause of

20 Plaintiffs’ injuries and damages, as alleged herein.

21

109. As a direct and proximate result of Defendants’ wrongful and/or

22 negligent acts and/or omissions, Plaintiffs incurred expenses for funeral and burial

23 expenses in an amount to be proved.

24

110. As a direct and proximate result of Defendants’ wrongful and/or

25 negligent acts and/or omissions, Plaintiffs suffered the loss of the services, society,

26 care, and protection of the decedent, as well as the loss of the present value of his

27 future services to his mother and son. Plaintiffs are further entitled to recover

28 prejudgment interest.

COMPLAINT FOR DAMAGES

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1

111. The aforementioned acts and/or omissions of Defendants Miller, in his

2 individual capacity, Collins, CFMG, and Fithian were willful, wanton, malicious,

3 and oppressive, thereby justifying an award to Plaintiffs of exemplary and punitive

4 damages to punish the wrongful conduct alleged herein and to deter such conduct in

5 the future.

6

PRAYER FOR RELIEF

7

WHEREFORE, Plaintiffs pray for the following relief:

8

1. For compensatory, general and special damages against each

9 Defendant, jointly and severally, in an amount to be proven at trial;

10

2. For damages related to loss of familial relations as to Plaintiffs Susan

11 Parenti and D.P-O.;

12

3. Funeral and burial expenses, independent autopsy expenses, and

13 incidental expenses not yet fully ascertained;

14

4. General damages, including damages for physical and emotional pain,

15 emotional distress, hardship, suffering, shock, worry, anxiety, sleeplessness, illness

16 and trauma and suffering, the loss of the services, society, care and protection of the

17 decedent, as well as the loss of financial support and contributions, loss of the

18 present value of future services and contributions, and loss of economic security;

19

5. Prejudgment interest;

20 / / /

21 / / /

22 / / /

23

24

25

26

27

28

COMPLAINT FOR DAMAGES

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Case5:14-cv-05481-PSG Document1 Filed12/16/14 Page22 of 22

1

6. For punitive and exemplary damages against each individually named

2 Defendant in an amount appropriate to punish Defendant(s) and deter others from

3 engaging in similar misconduct;

4

7. For costs of suit and reasonable attorneys’ fees and costs pursuant to

5 42 U.S.C. § 1988, and as otherwise authorized by statute or law;

6

8. For restitution as the court deems just and proper;

7

9. For such other relief, including injunctive and/or declaratory relief, as

8 the Court may deem proper.

9

Plaintiffs demand trial by jury in this action.

10 Dated: December 16, 2014
11
12
13

Respectfully Submitted, RIFKIN LAW OFFICE HADSELL STORMER & RENICK LLP

14

By:

/s/ Dan Stormer

15

Dan Stormer

16

Josh Piovia-Scott

17

Mohammad Tajsar Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT FOR DAMAGES

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 Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page1 of 16

1 Dan Stormer, Esq., SBN 101967 Joshua Piovia-Scott, Esq., SBN 222364
2 Mohammad Tajsar, Esq., SBN 280152 HADSELL STORMER & RENICK LLP
3 128 North Fair Oaks Avenue Pasadena, CA 91103
4 Telephone: (626) 585-9600;Facsimile: (626) 577-7079 dstormer@hadsellstormer.com
5 jps@hadsellstormer.com mtajsar@hadsellstormer.com
6
Lori Rifkin, Esq., SBN 244081 7 RIFKIN LAW OFFICE
P. O. Box 19169 8 Oakland, CA 94619
Telephone: (415) 685-3591 9 lrifkin@rifkinlawoffice.com

10 Attorneys for Plaintiffs [Additional Counsel on Next Page]
11

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

San Jose Division

16

17 Estate of JACOB PARENTI, deceased, Case No. CV 14-05481-PSG

by and through MATTHEW

18 OBERHOLTZ; D.P-O., a minor, by and JOINT CASE MANAGEMENT

through his guardian, MATTHEW

STATEMENT AND [PROPOSED]

19 OBERHOLTZ; and SUSAN PARENTI, ORDER

20

Plaintiffs,

vs.

21

COUNTY OF MONTEREY; SHERIFF

22 SCOTT MILLER, in his official and

individual capacities; OFFICER

23 COLLINS, in his individual capacity;

CALIFORNIA FORENSIC MEDICAL

24 GROUP; and DR. TAYLOR FITHIAN,

Date: April 28, 2015 Time: 10:00 a.m. Crtrm: 5

Complaint Filed: December 16, 2014

Trial Date:

None Set

25

Defendants.

26

27

28
1 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page2 of 16

1 [Additional Counsel, continued from previous page] 2 CHARLES J. McKEE, SBN 152458
County Counsel 3 SUSAN K. BLITCH, SBN 187761
Senior Deputy County Counsel 4 IRVEN L. GRANT, SBN 068950
Deputy County Counsel 5 MICHAEL R. PHILIPPI, SBN 120967
Deputy County Counsel 6 County of Monterey
168 West Alisal Street, Third Floor 7 Salinas, California 93901-2653
Telephone: (831) 755-5045/Facsimile: (831) 755-5283 8 blitchsk@co.monterey.ca.us
granti@co.monterey.ca.us 9 philippimr@co.monterey.ca.us
10
Peter G. Bertling Esq., SBN 131602 11 Jemma Parker Saunders, Esq., SBN 227962
Bertling & Clausen 12 15 West Carrillo Street, Suite 100
Santa Barbara, CA 93101 13 pgb@bertling-clausen.com
jps@bertling-clausen.com
14
Attorneys for Defendants California Forensic Medical 15 Group, Inc. and Taylor Fithian, M.D.
16
17
18
19
20
21
22
23
24
25
26
27
28
2 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page3 of 16

1

Plaintiffs Estate of JACOB PARENTI, deceased, by and through

2 MATTHEW OBERHOLTZ, D.P-O., a minor, by and through his guardian,

3 MATTHEW OBERHOLTZ, and SUSAN PARENTI (“Plaintiffs”), and

4 Defendants County of Monterey, Sheriff Scott Miller, Officer Collins, California

5 Forensic Medical Group, and Taylor Fithian, M.D. (“Defendants”), hereby submit

6 this Joint Case Management Statement and [Proposed] Order pursuant to the

7 Standing Order for All Judges of the Northern District of California dated July 1,

8 2011, and Civil Local Rule 16-9.

9 1. Jurisdiction and Service:

10

a. Jurisdiction

11

This Court has jurisdiction over Plaintiffs’ federal claims pursuant to 28

12 U.S.C. §§ 1331 and 1343, and over Plaintiffs’ state law claim pursuant to 28

13 U.S.C. § 1367.

14

b. Venue

15

The parties do not anticipate any issues regarding personal jurisdiction or

16 venue.

17

c. Service

18

All Defendants were personally served with the Complaint herein.

19 2. Facts:

20

a. Plaintiffs’ Statement

21

On January 15, 2014, Defendants left Jacob Parenti, a 33 year-old man in

22 Monterey County Jail for a probation violation, lying unconscious, helpless, and

23 untreated on his dorm bed to die. At the time of Jacob Parenti’s death, the Jail was

24 already the subject of a class action lawsuit regarding systemic failures to provide

25 adequate medical care. However, the County, its Sheriff and officers have

26 stubbornly refused to address these known issues.

27

Mr. Parenti began a one-year jail term for a probation violation at Monterey

28 County Jail on or around August 1, 2013. On or around January 10, 2014, Mr.

3

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1 Parenti developed flu-like symptoms. He followed the Jail’s procedures for

2 seeking medical care and put in a written sick call request. Around the same time

3 period, Mr. Parenti began coughing up blood. Mr. Parenti did not receive a

4 medical appointment in response to the sick call request he put in on January 10,

5 2014. He put in another sick call request slip on or around January 12. Mr. Parenti

6 continued coughing up blood that was thick and mucous-like. He was not called

7 for sick call January 13 or 14.

8

At around 9:45 a.m. on January 15, Defendant Collins called for Mr. Parenti

9 to see the nurse. Mr. Parenti was laying on his bunk and did not and could not

10 respond. Defendant Collins entered D-wing, walked to Mr. Parenti’s bunk, and

11 said his name several more times. Mr. Parenti remained unresponsive. Defendant

12 Collins then repeatedly tapped and/or shook Mr. Parenti, but Mr. Parenti remained

13 unresponsive.

14

Deputy Collins then left D-wing without providing or summoning

15 emergency or other medical attention for Mr. Parenti. Over the next hour,

16 Defendants failed, refused, and/or neglected to provide medical attention to an

17 inmate in their custody in obvious and serious need of immediate medical

18 attention.

19

At approximately 10:45 a.m., inmates in Mr. Parenti’s housing unit noticed

20 that he had stopped breathing and his face had a bluish tint. Several inmates pulled

21 him down from the bunk and attempted to resuscitate him while other inmates

22 attempted to get the attention of the deputies. After one inmate had already started

23 CPR on Mr. Parenti, deputies arrived in the unit, followed by Fire Department

24 personnel and nurses. On information and belief, the Jail deputies did not attempt

25 CPR on Mr. Parenti.

26

At 11:05 a.m. on January 15, 2014, Mr. Parenti was pronounced dead.

27

In the evening of January 15, 2014, Susan Parenti, Mr. Parenti’s mother,

28 received a phone call from an inmate at Monterey County Jail during which the

4

Estate of Jacob Parenti v. County of Monterey, et al. Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page5 of 16

1 inmate informed her that Mr. Parenti had died. Ms. Parenti had not previously

2 received any notification of her son’s death from Defendants.

3

Although the Monterey County Coroner’s Report eventually concluded that

4 Mr. Parenti died due to acute mixed drug intoxication, toxicology analysis of Mr.

5 Parenti’s blood does not support this conclusion. Based on the findings of the

6 independent autopsy, Parenti’s death resulted from viral influenza syndrome

7 complicated by pneumonia, a treatable medical condition.

8

b. Defendants County of Monterey, Sheriff Scott Miller and Officer

9

Collins’ Statement

10

Defendants County of Monterey, Sheriff Scott Miller and Officer Collins

11 (“County Defendants”) deny that they singularly or individually caused decedent

12 Jacob Parenti’s injury or death.

13

On July 20, 2013, Jacob Parenti was arrested in the City of Seaside, County

14 of Monterey, for violation of Vehicle Code 23152(a); under the influence of, and in

15 possession of a controlled substance, receiving stolen property, and probation

16 violation. Parenti pled guilty to various charges and was sentenced to County jail

17 on August 1, 2013 with a release date of September 18, 2014. Parenti was housed

18 in D-Wing on January 15, 2014. On the morning of January 15, 2014, an inmate in

19 D-Wing, hearing Parenti’s name called for “med pass”, attempted to wake him up

20 as he appeared to be sleeping. Parenti, in response, waved the inmate off. The

21 inmates believed Parenti was sleeping. Defendant Collins, when he contacted

22 Parenti, was given the same response. Parenti ate breakfast and nothing unusual

23 was noted in his appearance or manner.

24

Parenti was seen in the front area of D-Wing at about 9:15 a.m., as he left

25 the area and returned to his bunk, as he returned to see a television program he

26 regularly watched.

27

Later that morning, various inmates noted that Parenti seemed to be having

28 trouble breathing. Various inmates signaled for help and removed Parenti from his

5

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Case No. CV 14-05481-PSG

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1 bunk to the cell floor. Jail staff responded at about 10:40 a.m. and found Parenti

2 unresponsive. Medical staff was called and lifesaving measures were employed.

3 Medical staff arrived, assessed Parenti and called for paramedics, who responded

4 at 11:00 a.m., but Parenti was propounded dead at approximately 11:05 a.m. The

5 conclusion of the postmortem examination was that Parenti died from an acute

6 mixed drug intoxication.

7

c. Defendants California Forensic Medical Group, Inc. and Taylor

8

Fithian, M.D.’s Statement

9

For his most recent incarceration, Mr. Parenti was booked into the Monterey

10 County Jail on July 20, 2013. On intake, he provided a history of heart problems

11 and anxiety, and reported taking Klonopin, Atenolol, Lisinopril and hydrocodone.

12 He was placed on a low sodium diet and blood pressure checks were ordered and

13 performed daily for five days, then weekly in the hypertension clinic. Throughout

14 the remainder of 2013, Mr. Parenti was properly seen and treated by physicians

15 and staff from CFMG with appropriate medication renewals and adjustments. Mr.

16 Parenti was also properly examined and treated by CFMG physicians and staff for

17 mental health and psychiatric care. In the fall of 2013, Mr. Parenti complained of a

18 skin growth under his nose, which was timely evaluated and monitored by CFMG

19 physicians and staff and plaintiff was referred to an outside dermatologist, Dr.

20 Friend, in November 2013 for biopsy and treatment, which biopsy was performed

21 on January 6, 2014 and presumed to represent basal cell carcinoma.

22

On January 10, 2014 Mr. Parenti submitted a single sick call slip stating

23 “have the flu.” He was scheduled and seen at sick call on January 13, 2014 at

24 10:30 a.m. by Maureen Hollcraft. During this examination, Mr. Parenti reported

25 he had the flu and his joints were sore. His vital signs, including temperature, were

26 normal. His throat was red, tongue was coated and he had slight swelling in his

27 nodes. Ms. Hollcraft assessed an upper respiratory infection and noted she would

28 be discussing Mr. Parenti with an “M.D.” (Dr. Garcia), which was done

6

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Case No. CV 14-05481-PSG

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1 approximately one and a half hours later. Orders were written for a decongestant

2 (Actifed), cough medicine (Robitussin), and an analgesic (Motrin). These

3 medications were begun with the late afternoon pill pass on January 13, 2014.

4

Subsequently, on January 14, 2014 at 1555, Mr. Parenti was seen for a

5 mental health examination by Charlotte Gage. Mr. Parenti was anxious related to

6 his current basal cell carcinoma diagnosis but his speech was clear and his thought

7 process was organized. He requested an increase in his psychiatric medications

8 and Ms. Gage noted she would discuss the request with Dr. Fithian, which was

9 done on January 15, 2014 at 0900. However, at approximately 1045 hours on

10 January 15, 2014, CFMG staff was summoned to D-wing where custody was

11 amidst life-saving efforts for Mr. Parenti. CFMG staff including physician Dr.

12 Benda continued life-saving efforts and summoned an ambulance but Mr. Parenti

13 was propounded dead at approximately 11:05 a.m. The postmortem examination

14 concluded Mr. Parenti died from an acute mixed drug intoxication.

15 3. Legal Issues:

16

The disputed legal issues include the following:

17

a. Whether any Monterey County Defendant or Monterey County

18

Sheriff custodial officer/employee was subjectively aware that Jacob

19

Parenti was at a substantial risk of harm and acted with deliberate

20

indifference.

21

b. Whether the actions or omissions of any Monterey County Defendant

22

or Monterey County Sheriff custodial officer/employee was the

23

proximate cause of injury to Jacob Parenti or his death.

24

c. Whether Defendants and Monterey County Sheriff custodial

25

officers/employees were properly trained to recognize and react if and

26

when an inmate is in acute medical distress.

27

d. Whether the Monterey County Sheriff’s Office’s procedures, practices

28

and policies regarding the welfare/health checks or care of inmates

7

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Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page8 of 16

1

were adequate.

2

e. The availability of absolute and/or qualified immunity as to

3

Defendants County of Monterey, Sheriff Scott Miller and Officer

4

Collins.

5

f. Whether any Monterey County Sheriff custodial officer/employee was

6

negligent in the care and custody of Jacob Parenti.

7

g. Each and every affirmative defense as set forth in County Defendants’

8

answer to the complaint.

9

h. Whether Defendants were deliberately indifferent to the serious

10

medical needs of Parenti in violation of the Eighth and Fourteenth

11

Amendments.

12

i. Whether Defendants failed to protect Parenti from harm in violation

13

of the Fourteenth Amendment.

14

j. Whether Defendants deprived Plaintiff Susan Parenti and Plaintiff

15

D.P.-O. of their respective relationships with Jacob Parenti in

16

violation of the First and Fourteenth Amendments

17

k. Whether Defendants failed to summon or provide appropriate medical

18

care in response to Parenti’s alleged need for immediate medical

19

treatment when he was incarcerated in Monterey.

20

l. Whether Defendants were negligent in their supervision, training, and

21

hiring of individuals responsible for providing adequate medical care

22

to Parenti.

23

m. Whether Defendants are liable for the wrongful death of Parenti.

24

n. Whether Defendants were negligent in the provision of medical care

25

to Parenti during his incarceration in Monterey.

26

o. What amount of damages, including compensatory and punitive

27

damages, should be awarded to Plaintiffs on a finding of liability

28

against any Defendant(s).

8

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Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page9 of 16

1

p. Whether Defendants have violated the Eighth or Fourteenth

2

Amendments.

3

q. Whether Defendants were deliberately indifferent to Jacob Parenti.

4

r. Whether Defendants are entitled to qualified immunity.

5

s. Whether Plaintiffs have sufficient evidence for a Monell claim.

6

t. What are the standards for the provision of medical care to inmates.

7

u. Whether Defendants are liable for acts of discretion.

8

v. Whether the presence or lack of a policy caused a violation of any

9

constitutional rights.

10

w. Whether Defendants’ supervision of their respective employees has

11

been adequate/sufficient to avoid any constitutional violations.

12

x. Whether decedent’s death or Plaintiffs’ claimed damages (or any

13

portion) were proximately or legally caused by the alleged negligence

14

or claimed violation of civil rights on the part of each of the

15

Defendants.

16 4. Motions:

17

a. Prior Motions

18

Plaintiffs filed a Motion to Consider Related Case pursuant to local Rule 3-

19 12(b) to consider whether this action relates to Hernandez v. County of Monterey,

20 Case No. 13-cv-2354-PSG (N.D. Cal. filed May 23, 2013) (Dkt. 9). Plaintiffs’

21 Motion was granted (Dkt. 11).

22

b. Pending Motions

23

There are no currently pending motions before the Court.

24

c. Anticipated Motions

25

The parties anticipate filing motions in limine and discovery motions as

26 necessary. All Defendants anticipate filing motions for summary judgment or

27 partial summary judgment. Plaintiffs may also file a motion for summary

28 judgment or partial summary judgment.
9 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page10 of 16

1 5. Amendment of Pleadings:

2

The parties do not anticipate additional parties, claims or defenses unless

3 new evidence warranting amendment is revealed during discovery.

4 6. Evidence Preservation:

5

The parties have reviewed the Guidelines Relating to the Discovery of

6 Electronically Stored Information, and met and conferred on December 2, 2014,

7 regarding reasonable and proportionate steps taken to preserve ESI.

8

The parties agree to preserve records within their custody relevant to the

9 litigation between the parties and to take all steps necessary to prevent the

10 destruction, loss, concealment, or alteration of any paper, document, or

11 electronically stored information (“ESI”) and other data or information generated

12 by and/or stored on computers, storage media (e.g., thumb/flash drives, portable

13 hard drives, hard disks, floppy disks, backup tapes, etc.), or email servers related to

14 the facts giving rise to this action. The parties also agree to initiate an immediate

15 litigation hold for potentially relevant ESI, documents and tangible things, and to

16 act diligently and in good faith to secure and audit compliance with that litigation

17 hold.

18

The parties also agree to intervene to prevent loss due to routine operations

19 and employ proper techniques to guard against the advertent or inadvertent

20 destruction of all such evidence. If information exists in both electronic and paper

21 form, the parties will preserve both. The parties also agree to immediately identify

22 and modify or suspend features of any information systems and devices that, in

23 routine operation, cause the loss of documents, tangible items, or ESI.

24 Lastly, the parties agree to preserve documents, tangible things, and ESI that

25 comprise or contain potentially relevant evidence and that are created or come into

26 their custody, possession, or control subsequent to the date of this filing. The

27 parties will take all appropriate action to avoid destruction of potentially relevant

28 evidence.
10 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page11 of 16

1 7. Disclosures:

2

The parties intend to complete their initial disclosures by April 21, 2015.

3 8. Discovery:

4

a. Discovery Taken to Date

5

There is no discovery currently pending.

6

b. Scope of Anticipated Discovery

7

Plaintiffs will seek discovery on the following subjects:

8

i. The details of Mr. Parenti’s medical condition while in the Jail

9

and Defendants’ awareness of his medical condition and failure

10

to respond to it.

11

ii. Defendants’ provision of medical care and emergency response

12

to Mr. Parenti and other inmates in the Monterey County Jail.

13

iii. Defendants’ autopsy of Mr. Parenti and conclusion that Mr.

14

Parenti died of acute mixed drug intoxication.

15

iv. Defendants’ policies, procedures, protocols, and training

16

regarding the provision of medical care and emergency

17

response in the Monterey County Jail.

18

v. Whether Defendants were on notice regarding their provision of

19

inadequate medical care and emergency response.

20

vi. Monell issues.

21

Plaintiffs will seek discovery on additional subjects should the need arise

22 during litigation.

23

The parties plan to depose the individual defendants, individuals identified

24 in response to Rule 30(b)(6) notices and various third-party witnesses whose

25 knowledge and impressions will shed light on the events that are the subject matter

26 of this litigation. The parties also plan to propound interrogatories, requests for

27 production of documents, and requests for admission. Plaintiffs may notice a

28 request for inspection of the Jail if necessary.
11 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page12 of 16

1

c. Limitations or Modifications of the Discovery Rules

2

The parties do not anticipate requiring any limitations or modifications of

3 the discovery rules. If the need arises during the course of discovery, the parties

4 may request relief for additional discovery beyond that which is allowed by the

5 Federal Rules.

6

d. Stipulated E-Discovery Order

7

The parties do not anticipate requiring an e-discovery plan.

8

e. Proposed Discovery Plan

9

The parties intend to make their initial disclosures by April 21, 2015.

10

The parties differ regarding the time required to complete discovery in this

11 case and have proposed different discovery schedules and deadlines in Section 17.

12 The parties do not anticipate conducting discovery in phases or of limiting

13 discovery on particular issues.

14

The parties do not anticipate changes to the discovery rules set out in the

15 Federal Rules or this Court’s Local Rules.

16 9. Class Actions:

17

Not applicable.

18 10. Related Cases:

19

The related case of Hernandez v. County of Monterey, No. 13-cv-2354-PSG

20 (N.D. Cal. filed May 23, 2013) is a class action that seeks declaratory and

21 injunctive relief against the County of Monterey, Monterey County Sheriff’s

22 Office, and California Forensic Medical Group for violations of class members’

23 civil rights, including their constitutional rights to adequate medical care and

24 protection from harm.

25 11. Relief:

26

a. Relief Sought

27

i. Compensatory, general and special damages against each

28

Defendant, jointly and severally, in an amount to be proven at

12

Estate of Jacob Parenti v. County of Monterey, et al. Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page13 of 16

1

trial.

2

ii. Damages related to loss of familial relations as to Plaintiffs

3

Susan Parenti and D.P-O.

4

iii. Funeral and burial expenses, independent autopsy expenses,

5

and incidental expenses not yet fully ascertained.

6

iv. General damages, including damages for physical and

7

emotional pain, emotional distress, hardship, suffering, shock,

8

worry, anxiety, sleeplessness, illness and trauma and suffering,

9

the loss of the services, society, care and protection of the

10

decedent, as well as the loss of financial support and

11

contributions, loss of the present value of future services and

12

contributions, and loss of economic security.

13

v. Prejudgment interest.

14

vi. For punitive and exemplary damages against each non-

15

governmental entity Defendant in an amount appropriate to

16

punish Defendant(s) and deter others from engaging in similar

17

misconduct.

18

vii. For costs of suit and reasonable attorneys’ fees and costs

19

pursuant to 42 U.S.C. § 1988, and as otherwise authorized by

20

statute or law.

21

viii. For restitution as the court deems just and proper.

22

ix. For such other relief, including injunctive and/or declaratory

23

relief, as the Court may deem proper.

24

b. Defendants’ Description of Bases for Damages

25

Defendants deny Plaintiffs are entitled to any damages.

26 12. Settlement and ADR:

27

The parties have met and discussed the available dispute resolution options

28 provided by the Court and private entities, and agreed to request an Early

13

Estate of Jacob Parenti v. County of Monterey, et al. Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page14 of 16

1 Settlement Conference with a Magistrate Judge. (See Dkt 27.)

2 13. Consent to Magistrate Judge for all Purposes:

3

The parties have all consented to a Magistrate Judge conducting all further

4 proceedings.

5 14. Other References:

6

This case is not suitable for reference to binding arbitration, a special master,

7 or the Judicial Panel on Multidistrict Litigation.

8 15. Narrowing of Issues:

9

At this point in time, Plaintiffs are not aware of any issues that can be

10 narrowed by agreement or by motion at trial.

11 16. Expedited Trial Procedure:

12

This case is not suitable for the Expedited Trial Procedure outlined in

13 General Order No. 64, Attachment A.

14 17. Scheduling:

15

The parties differ regarding the time required to discover and litigate this

16 case, as well as when the trial in this matter should be set.

17

Defendants

Plaintiffs

18

Non-expert discovery cutoff: July 22, 2016

February 5, 2016

19

Designation of experts:

August 5, 2016

March 4, 2016

20

Expert discovery cutoff:

August 22, 2016 April 1, 2016

21

Deadline for hearing dispositive

22

motions:

September 28, 2016 June 17, 2016

23

Pretrial conference:

October 28, 2016 August 28, 2016

24

Trial:

November 7, 2016 September 5, 2016

25 18. Trial:

26

Defendants have requested a jury trial in this action. The parties anticipate a

27 nine (9) day trial.

28 / / /
14 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page15 of 16

1 19. Disclosure of Non-party Interested Entities or Persons:

2

Each party has filed the Certification of Interested Entities or Persons

3 required by Local Rule 3-15.

4 20. Professional Conduct:

5

All attorneys of record for the parties have reviewed the Guidelines for

6 Professional Conduct for the Northern District of California.

7

8 Dated: April 21, 2015

Respectfully submitted,

9

RIFKIN LAW OFFICE

HADSELL STORMER & RENICK LLP

10

11 12 13 14
15 Dated: April 21, 2015
16 17 18 19 20 21

By

/s/ - Joshua Piovia-Scott

Dan Stormer

Joshua Piovia-Scott Lori Rifkin Mohammad Tajsar Attorneys for Plaintiffs

CHARLES J. McKEE County Counsel

By

/s/ - Irven L. Grant

Susan K. Blitch, Sr. Deputy County Counsel
Irven L. Grant, Deputy County Counsel Michael R. Philippi, Deputy County Counsel Attorneys for Defendants COUNTY OF MONTEREY, SHERIFF SCOTT MILLER and OFFICER COLLINS

22 Dated: April 21, 2015

BERTLING & CLAUSEN, L.L.P.

23

By /s/ - Jemma Parker Saunder

24

Peter G. Bertling

25

Jemma Parker Saunders Attorneys for Defendants CALIFORNIA

26

FORENSIC MEDICAL GROUP, INC. and TAYLOR FITHIAN, M.D.

27

28
15 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

Case5:14-cv-05481-PSG Document33 Filed04/21/15 Page16 of 16

1

[PROPOSED] CASE MANAGEMENT ORDER

2

The above JOINT CASE MANAGEMENT STATEMENT AND

3 [PROPOSED] ORDER is approved as the Case Management Order for this case

4 and all parties shall comply with its provisions.

5

IT IS SO ORDERED.

6

7 Dated: ________________, 2015
8

_______________________________ HONORABLE PAUL S. GREWAL

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
16 Estate of Jacob Parenti v. County of Monterey, et al.
Joint Case Management Statement and [Proposed] Order

Case No. CV 14-05481-PSG

 
 Case 5:14-cv-05481-BLF Document 109 Filed 04/06/18 Page 1 of 31

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7

8 JACOB PARENTI, ET AL.,

9

Plaintiffs,

10

v.

11 COUNTY OF MONTEREY, et al.,

12

Defendants.

Case No. 14-cv-05481-BLF
ORDER GRANTING IN PART AND DENYING IN PART DEPUTY COLLINS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
[Re: ECF 100]

13

14

On January 15, 2014, Jacob Parenti (“Mr. Parenti”) died in his dorm bed in the Monterey

15 County Jail where he was being held for a twelve-month term on a probation violation. The Estate

16 of Jacob Parenti, Mr. Parenti’s minor son, and Mr. Parenti’s mother (collectively, “Plaintiffs”)

17 bring this action against the County of Monterey, Sheriff Scott Miller, and Deputy Timmy Collins

18 (collectively, “Defendants”) asserting that Defendants were deliberately indifferent to Mr.

19 Parenti’s serious medical needs in violation of his federal constitutional rights, and breached 20 duties owed to him under state law.1

21

Defendant Deputy Timmy Collins (“Deputy Collins”) moves the Court for an Order of

22 Partial Summary Judgment on all causes of action in Plaintiffs’ Complaint alleged against Deputy

23 Collins. See ECF 100 (“Mot.”). The Court has considered the relevant evidence, applicable law,

24 oral argument presented at the hearing on November 9, 2017, as well as the briefing and 25 supplemental briefing of the parties. For the reasons that follow, Deputy Collins’ motion for 26 partial summary judgment is GRANTED IN PART and DENIED IN PART.

27

28

1 Defendants California Forensic Medical Group and Dr. Taylor Fithian (“CFMG Defendants”) were dismissed from this action on October 5, 2017. See ECF 99.

Case 5:14-cv-05481-BLF Document 109 Filed 04/06/18 Page 2 of 31

United States District Court Northern District of California

1 I. BACKGROUND2

2

A. The Parties

3

Mr. Parenti was arrested and booked into Monterey County Jail on July 20, 2013 on a

4 probation violation for possessing marijuana. See Declaration of Johnathan Thornburg

5 (“Thornburg Decl.”) ¶ 3, ECF 100-3. Mr. Parenti had been arrested and booked into the Monterey

6 County Jail a total of seventeen (17) separate times between 2001 and 2013. Id.

7

Deputy Collins is a 28-year veteran of the Monterey County Jail. Declaration of Timmy

8 Collins (“Collins Decl.”) ¶ 2, ECF 100-1. With respect to this lawsuit, Deputy Collins is alleged

9 to be the last deputy to have seen Mr. Parenti alive. On January 15, 2014, Deputy Collins was

10 assigned to the Rehabilitation Unit building at the jail, where he had been assigned for the

11 preceding ten years, since 2004. Id. Specifically, on the day at issue, Deputy Collins was working

12 the day shift and was assigned to the B/C Wing. See Declaration of Janet L. Holmes (“Holmes

13 Decl.”), ECF 100-4, Exh D, Deposition of Timmy Collins (“Collins Depo.”) 16:13-24; 19:11-19,

14 49:3-50:18; Collins Decl. ¶¶ 2, 4.

15

Deputy Collins testified that he knew Mr. Parenti because Mr. Parenti had been in and out

16 of the Monterey jail over the years. Collins Depo. 81:11-18. Deputy Collins also knew that Mr.

17 Parenti was not a drug smuggler or someone who was arrested for transportation or sale because

18 Mr. Parenti was cleared to work in the kitchen. Id. 81:19-82:14. Deputy Collins recalled that Mr.

19 Parenti was a “pretty decent worker,” who didn’t complain, was quiet, and stayed to himself,

20 which Deputy Collins described as “a good thing.” Id. In fact, Mr. Parenti was seen by jail staff

21 as a “model inmate” who was polite, cooperative, quiet, and a good worker. Collins Depo. at

22 82:15-18; 159:15-16; Declaration of Lori Rifkin (“Rifkin Decl.”), Volume II, ECF 102-2 at 112, 23 Deposition of William Taylor Fithian, M.D. (“Fithian Depo.”) at 44:2-3.3 Other inmates described

24 Mr. Parenti as friendly, well-liked and someone who helped others. Rifkin Decl. Volume I, ECF

25 102-1, Declaration of Antonio Rappa (“Rappa Decl.”), Exh. 200 ¶ 4; Declaration of Joshua

26

27 2 The facts in this section are undisputed unless otherwise noted.

28

3 Excerpts of Dr. Fithian’s deposition testimony offered by Defendants are located in the record at Exhibit F to the Declaration of Janet L. Holmes, ECF 100-4.

2

Case 5:14-cv-05481-BLF Document 109 Filed 04/06/18 Page 3 of 31

United States District Court Northern District of California

1 Thomas Griffin (“Griffin Decl.”), Exh. 202 ¶ 19; Declaration of Michael Christopher Wolfe 2 (“Wolfe Decl.”) Exh. 203 ¶ 25.4 Deputy Collins testified that he had never had an issue with

3 Parenti using or possessing drugs in the jail. Collins Depo. 159:5-16. Deputy Collins further

4 testified that he had no information about any of Mr. Parenti’s medical issues. Id. 115:8-12.

5

Dr. Taylor Fithian (“Dr. Fithian”) was the staff psychiatrist and Medical Director with

6 Defendant California Forensics Medical Group (“CFMG”). See Fithian Depo. 6:6-9. The County

7 of Monterey contracted with CFMG to provide medical and mental health services for inmates at 8 the County Jail. See Declaration of James Bass (“Bass Decl.”) ¶ 3, Exh. A, ECF 100-2.5 As part

9 of his duties, Dr. Fithian was partly responsible for policies and procedures, and for supervision of

10 medical staff at the Monterey County Jail. See Fithian Depo. 6:16-7:5. Dr. Fithian was generally

11 present at the Monterey County Jail on a daily basis from Monday through Friday during the

12 relevant time period from 2013 to 2014. Id. 20:7-15. Under the procedures in place in December

13 2013 and January 2014, inmates could sign themselves up for a psychiatric “sick call” by filling

14 out a slip. Id. 8:20-24. Mental health staff, custody staff, families and/or attorneys could also

15 refer inmates for a “sick call.” Id. 8:20-9:11. A “sick call list” would be generated for each

16 housing unit at the jail, with medical sick calls separated from psychiatric. Id. 16:13-25.

17

In early January 2014, Mr. Parenti filled out several sick slips, seeking treatment for

18 various medical issues including a cancerous skin lesion on his nose, what he described on a slip

19 as having the flu, and other requests to see the psychiatrist for adjustment of psychiatric

20 medications. Rifkin Decl. Volume I, Exh. 209 at 2-7. On January 13, 2014, Mr. Parenti was seen

21 by a nurse at the jail who prescribed him medication for a cold. See Rifkin Decl. Volume II,

22 Deposition of Maureen Hollcraft (“Hollcraft Depo.”) at 64:19-69:5; Ex. 209 at 1, 8. On January

23 14, 2014, Mr. Parenti reported increased anxiety and depression to a psychiatric nurse. Rifkin

24 Decl. Volume I, Exh. 209 at 8. The nurse scheduled Mr. Parenti for a “routine psychiatric sick

25

26 4 Along with Jace Esquivel, these three declarations are from inmates housed in the D-wing of the

27

Rehabilitation Unit of the Monterey County Jail who knew Mr. Parenti and witnessed the events of January 15, 2014.

28

5 At all relevant times, James Bass was employed by the County of Monterey Sheriff’s Office as the Commander serving as the medical liaison with CFMG at the jail. See Bass Dec. ¶ 2.

3

Case 5:14-cv-05481-BLF Document 109 Filed 04/06/18 Page 4 of 31

United States District Court Northern District of California

1 call” the next day with Dr. Fithian. See Fithian Depo. 8:1-11, 23:22-24:5.

2

B. Rehabilitation Unit at Monterey County Jail

3

Mr. Parenti was housed in “D-wing” at the Monterey County Jail, which is referred to as

4 “dorm” or “pod” housing for approximately 85 men in bunk beds. See Rifkin Decl. Volume I,

5 Transcript of January 15, 2014 Interview of Deputy Collins (“Collins Interview 1/15/2014”), Exh.

6 207 at 2:2-6; Exh. 27A. D-wing is part of a group of five housing pods comprising “Rehab 2,”— 7 or the Rehabilitation Unit6—which includes wings B, C, D, E, and F. See Rifkin Decl. Volume II,

8 Deposition of Deputy Olio Guerrero (“Guerrero Depo.”) 16:12-20:7, 26:16-27:4. The layout of

9 the Rehabilitation Unit where Mr. Parenti’s dorm was located was essentially an octagon, with the

10 Control 5 tower slightly elevated in the center and the various wings radiating out. See Collins

11 Depo. 101:5-16. Four jail deputies oversaw the pods in Rehab 2, which encompassed the D-

12 Wing: one “Control 5” deputy mans the control tower; two “hallway deputies” share responsibility

13 for E and F pods and the yard; and one “B/C-wing deputy” is responsible for B, C, and D pods.

14 Guerrero Depo. at 16:12-20:7, 26:16-27:4. In 2014, responsibilities of the hallway and B/C-wing

15 deputies included hourly “health and welfare checks” for each of their pods. Id. at 26:16-27:4;

16 Collins Depo. at 54:20-55:15, 105:13-19. The B/C Wing deputy also monitored for safety and

17 security, and provided assistance for appointments, escorts, and meals. Collins Depo. 50:9-18.

18

On the day of Mr. Parenti’s death, January 15, 2014, Deputy Collins was assigned to the

19 position of B/C-wing deputy for the Rehab Unit. See Rifkin Decl. Volume I, Exh. 25. Deputy

20 Collins had been assigned to the Rehab unit for the prior ten years. Collins Depo. at 18:20-19:19.

21 As for the rest of the team, Deputy Jimenez was on “control,” and Deputies Guerrero and

22 Gonzalez were the hallway deputies. See Rifkin Decl. Volume I, Exh. 25; see also Guerrero

23 Depo. at 16:5-23.

24

C. Deputy Collins’ Interaction with Mr. Parenti on the Morning of

25

January 15, 2014

On the morning of January 15, 2014, Dr. Fithian asked Deputy Collins to assist him by 26

27 6 “Rehabilitation Unit” does not refer to drug or alcohol rehabilitation programming, but refers to

28

rehabilitation of sentenced inmates. See Rifkin Decl. Volume II, Deposition of James Bass (“Bass Depo.”) 24:9-26:5.

4

Case 5:14-cv-05481-BLF Document 109 Filed 04/06/18 Page 5 of 31

United States District Court Northern District of California

1 escorting inmates in the Rehabilitation Unit’s C and D wings to inmate “sick call” visits with Dr.

2 Fithian. Collins Depo. 86:3-14. Mr. Parenti was on the psychiatric sick call list for a visit with

3 Dr. Fithian, but not for a medical emergency. Fithian Depo. 23:22-24:12. After Dr. Fithian

4 completed his visits with inmates on the C wing, he asked Deputy Collins to accompany him to

5 see people on the D wing, where Mr. Parenti was housed. Collins Depo. 85:21-86:10. At

6 approximately 9:45 a.m., Deputy Collins went to the entrance of D-wing and called out the list of

7 three or four people on the sick call list, including Mr. Parenti. See Wolfe Decl. ¶ 10; Collins

8 Depo. 86:9-14. Mr. Parenti did not show up or respond. Wolfe Decl. ¶ 11; Collins Depo. 86:12-

9 14. Deputy Collins called his name again. Collins Depo. 86:9-14. Kenny Packer, one of the

10 other inmates in the D wing, told Deputy Collins that Mr. Parenti was sleeping. Id. 86:15-16.

11

Deputy Collins looked toward Mr. Parenti’s bunk, and because no one was trying to wake

12 him, Deputy Collins decided to go down the D-wing to check if Mr. Parenti wanted to see Dr.

13 Fithian. Id. 86:19-23. As Deputy Collins walked down the wing, he could see Mr. Parenti lying

14 on his stomach with his head facing the wall, and he testified that he could hear that Parenti was

15 snoring. Id. 87:7-11. Deputy Collins testified that Mr. Parenti’s snoring was not “raspy,” but

16 rather “sounded like normal snoring.” Id. 93:20-23. Deputy Collins further testified that Mr.

17 Parenti “didn’t appear to be in any kind of distress. He was obviously breathing. He was snoring,

18 which appeared to me as a normal breathing pattern.” Id. 173:6-20.

19

According to Deputy Collins, he approached the bunk and tapped Mr. Parenti on the

20 shoulder several times, and he was slow to wake up. Id. 87:7-14. Deputy Collins testified that

21 Mr. Parenti turned his head toward Deputy Collins, and Collins asked him: “Do you want to see

22 the doctor?” Collins Depo. 87:11-14. Deputy Collins testified that Mr. Parenti grumbled

23 something in response, which Collins thought was okay because he was “actually sleeping pretty

24 hard.” Id. 87:15-19. Deputy Collins decided to let Mr. Parenti sleep. Id. 87:18-19. In contrast,

25 the sworn affidavits of four inmate witnesses recall that Deputy Collins repeatedly shouted Mr.

26 Parenti’s name to try to wake him up and either “nudged,” tapped, or shook him, but Mr. Parenti

27 did not respond. See Wolfe Decl. ¶ 12; Griffin Decl. ¶ 11; Rappa Decl. ¶ 11; Rifkin Decl. Volume

28 I, Declaration of Jace Esquivel (“Esquivel Decl.”) ¶ 4. 5

Case 5:14-cv-05481-BLF Document 109 Filed 04/06/18 Page 6 of 31

United States District Court Northern District of California

1

Deputy Collins testified that he went back and told Dr. Fithian, who was standing at the

2 door, “Yeah, he’s sleeping pretty good.” Collins Depo. 87:20-22. Dr. Fithian responded, “Okay.

3 I’ll come back later.” Id. 87:23-24. Deputy Collins testified that it did not occur to him that Mr.

4 Parenti was experiencing a medical difficulty when he did not wake up for Dr. Fithian’s visit. Id.

5 133:9-14. Moreover, Deputy Collins testified that he did not find blood on Mr. Parenti’s clothing

6 or the sheets in his bunk, he had not heard of any evidence indicating there had been any such

7 blood in the preceding 72 hours, and he was not told by any inmate that they had previously seen

8 Mr. Parenti coughing up blood. Id. 173:21-174:7. Mr. Parenti did not cough during the

9 interaction with Deputy Collins during the sick call rounds. Id. 173:6-20.

10

Other inmates in Mr. Parenti’s housing unit observed that, in the days leading up to his

11 death, Mr. Parenti was coughing and throwing up blood that was visible on his pillow. For

12 example, Antonio Rappa testified that he observed Mr. Parenti throwing up blood in the shower at

13 some point in January 2014. Rappa Decl. ¶ 6. Griffin testified that on January 12 or 13, 2015, a

14 few days before his death, Mr. Parenti told Griffin that he was coughing up blood and showed

15 Griffin blood on his pillow that was thick and mucous-like. Griffin Decl. ¶ 5. Wolfe testified that

16 around January 9 or 10, 2014, Mr. Parenti told Wolfe that he was coughing up blood and showed

17 him blood on his pillowcase that looked like it had tissue in it. Wolfe Decl. ¶¶ 5-7. Wolfe also

18 testified that after Deputy Collins left the D-wing, at some time between approximately 10:20 and

19 10:35 A.M., Wolfe walked by Jake’s bunk and “noted that he was breathing, but his breath was

20 shallow.” Wolfe Decl. ¶ 14.

21

D. The “Man Down” Call

22

After Deputy Collins finished his medical escort duties with Dr. Fithian, Deputy Collins

23 left the D-wing and returned to his regular duties as the B&C wing deputy. Collins Depo. 96:11-

24 20; 50:5-53:4. Deputy Collins’ B&C Wing Deputy station did not provide a sight line for the D

25 wing because of a partition, so he could not observe Mr. Parenti. Id. 102:6-14. According to

26 Deputy Collins, the control deputy and hallway deputies had the responsibility for monitoring the

27 D-wing, including Mr. Parenti. Id. 102:21-103:8; 104:1-13.

28

Plaintiffs provide evidence that after Deputy Collins left D-wing, he was with the other

6

Case 5:14-cv-05481-BLF Document 109 Filed 04/06/18 Page 7 of 31

United States District Court Northern District of California

1 three deputies in the control tower. See Rifkin Decl. Volume II, Deposition of James Bass (“Bass

2 Depo.”) 26:10-27:9; Guerrero Depo. at 32:1-16. Jail records show that no deputy performed the

3 hourly health and welfare check for the D-wing around the 10:00 a.m. hour on January 15, 2014.

4 Rifkin Decl. Volume I, Exh. 25 at 14; Bass Depo. at 116:2-5; Collins Depo. at 54:20-55:15, 5 105:13-19.7 Other inmates report that no deputy or jail staff returned to D-wing in the hour

6 following when Deputy Collins left Mr. Parenti sleeping on his bunk. See, e.g., Wolfe Decl. ¶ 16.

7

At approximately 10:40 a.m., other inmates noticed that Mr. Parenti did not appear to be

8 breathing and his face had turned a bluish tint. See Rappa Decl. ¶ 16; Esquivel Decl. ¶ 6; Wolfe

9 Decl. ¶ 15; Rifkin Decl. Volume I, Exh. 63 at 3. Several inmates pulled Mr. Parenti down from

10 his bunk onto the floor and attempted to resuscitate him while other inmates attempted to get the

11 attention of deputies by banging on the front gate of D-wing and yelling “man down.” Rappa

12 Decl. ¶ 17; Esquivel Decl. ¶ 7; Wolfe Decl. ¶ 15; see also Griffin Decl. ¶ 12. After Deputy

13 Collins checked in at Control Tower 5, he saw inmate Packer banging at the D-wing cage, which

14 is typically what the inmates would do if there was some sort of an emergency. Collins Depo.

15 99:12-18. Deputy Collins estimated that more than half an hour but less than an hour had passed

16 between the time Deputy Collins had been in the D-wing with Dr. Fithian and when he observed

17 the “man down” call from the control tower. Id. 99:19-24. Deputy Collins and Deputy Gonzalez

18 responded to the D-wing, where they found Mr. Parenti lying on the floor on his back on a

19 mattress, which could not be seen from the control tower. Id. 99:25-100:11; Collins Interview

20 1/15/2014 at 3:2-5.

21

Although Deputy Gonzales assessed that Mr. Parenti was breathing, Deputy Collins

22 testified that he did not see Mr. Parenti’s chest rise and fall so Deputy Collins reassessed and

23 determined that there was no breathing and no pulse. Collins Depo. 106:1-107:1. Deputy Collins

24 radioed Control 5 and advised them to “call 911.” Id. 107:6-13. Deputy Collins testified that he

25 and Deputy Gonzalez performed CPR on Mr. Parenti. Id. 107:21-108:8; see also Collins

26

27

7 Although Bass testified that the B&C wing deputy had responsibility over the D-wing, Collins testified that the hallway deputies were responsible for the D-wing with the exception of the

28

hourly checks, which the B&C wing deputy performed for D-wing. Compare Bass Depo. 115:1522 with Collins Depo. 105:13-25.

7

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1 Interview 1/15/2014 at 3:17-6:9. In contrast, inmate Rappa attests that an inmate had already

2 started CPR on Mr. Parenti by the time the deputies arrived, and the deputies did not attempt CPR.

3 Rappa Decl. ¶ 19. However, inmate Griffin observed one of the deputies take over CPR when

4 they arrived. Griffin Decl. ¶ 13. Wolfe testified that the deputies only performed chest pumps on

5 Mr. Parenti, and did not attempt mouth-to-mouth resuscitation. See Wolfe Decl. ¶ 18. Griffin

6 added that it took 5-10 minutes for the guards to arrive and then “seemed to take a long time” for

7 the nurses to come and help Mr. Parenti. Griffin Decl. ¶¶ 13-14. Rappa recalled, “it did not seem

8 as if [the deputies] were moving with any urgency or hurry. They seemed to be strolling.” Rappa

9 Decl. ¶ 18.

10

According to Deputy Collins, Nurse Gayle arrived quickly with an oxygen tank, and

11 Deputy Collins assisted in putting the oxygen mask on Mr. Parenti to give him oxygen while

12 Gonzalez continued with chest compressions. Collins Decl. 108:8-17. Dr. Banda and other

13 medical staff arrived and Deputy Collins moved on to assist in relocating inmates away from the

14 D -wing. Id. 108:18-21, 109:11-17. At approximately 11:00 a.m., personnel from the Fire

15 Department and paramedics arrived. Rifkin Decl. Volume I, Exh. 63.

16

Mr. Parenti was pronounced dead at 11:05 a.m. on January 15, 2014. See Rifkin Decl.

17 Volume I, Exh. 63 at 2. Defendant County of Monterey’s autopsy and the independent autopsy

18 obtained by Mr. Parenti’s family came to different conclusions regarding the cause of death.

19 Compare Rifkin Decl. Volume I, Exh. 63 with Exh. 210 at 4. The County’s autopsy concluded

20 that Mr. Parenti died from “acute mixed drug intoxication.” Exh. 63 at 1. The autopsy from Mr.

21 Parenti’s family toxicology specialist found that Mr. Parenti died as a result of “viral flu syndrome

22 complicated by pneumonia, sepsis, systemic inflammatory response syndrome, septic shock and

23 multiorgan system failure.” Exh. 210 at 4.

24

E. Plaintiffs’ Claims Against Deputy Collins

25

In relevant part to this motion for partial summary judgment, Plaintiffs allege five causes

26 of action against Deputy Collins in his individual capacity: (1) failure to provide medical care in

27 violation of Eighth and Fourteenth Amendments pursuant to 42 USC § 1983; (2) deprivation of

28 substantive due process in violation of the First and Fourteenth Amendments pursuant to 42 USC 8

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1 § 1983; (3) failure to furnish/summon medical care; (4) negligence; and (5) wrongful death.8 See

2 generally Compl., ECF 1.

3 II. LEGAL STANDARD

4

A. Summary Judgment

5

“A party is entitled to summary judgment if the ‘movant shows that there is no genuine

6 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of

7 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. P.

8 56(a)). Material facts are those that may affect the outcome of the case. Anderson v. Liberty

9 Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists if there is sufficient

10 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. at 248–49.

11

The party moving for summary judgment bears the initial burden of informing the court of

12 the basis for the motion, and identifying portions of the pleadings, depositions, answers to

13 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material

14 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party

15 must either produce evidence negating an essential element of the nonmoving party’s claim or

16 defense or show that the nonmoving party does not have enough evidence of an essential element

17 to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz

18 Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

19

If the moving party meets its initial burden, the burden shifts to the nonmoving party to

20 produce evidence supporting its claims or defenses. Id. at 1103. If the nonmoving party does not

21 produce evidence to show a genuine issue of material fact, the moving party is entitled to

22 summary judgment. Celotex, 477 U.S. at 323. It is not the task of the Court to scour the record in

23 search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The

24

25 8 Plaintiffs’ fourth cause of action for negligent supervision, training, hiring and retention is not

26

alleged against Deputy Collins. See Compl. ¶¶ 97-100. Moreover, Defendants erroneously move for summary judgment as to the third cause of action under a § 1983 framework. Although the

27

caption of the Complaint mistakenly refers to § 1983 next to the third cause of action, the Complaint itself makes clear that the failure to furnish/summon medical care claim is brought

28

pursuant to California state law, including violations of Cal. Govt. Code §§ 844.6 and 845.6. Id. ¶¶ 91-96.

9

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1 Court “rel[ies] on the nonmoving party to identify with reasonable particularity the evidence that

2 precludes summary judgment.” Id.; see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017

3 (9th Cir. 2010). Thus, “[t]he district court need not examine the entire file for evidence

4 establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with

5 adequate references so that it could conveniently be found.” Carmen v. San Francisco Unified

6 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

7

“The court must view the evidence in the light most favorable to the nonmovant and draw

8 all reasonable inferences in the nonmovant’s favor.” City of Pomona, 750 F.3d at 1049.

9 However, “the ‘mere existence of a scintilla of evidence in support of the plaintiff’s position’” is

10 insufficient to defeat a motion for summary judgment. Id. (quoting Anderson, 477 U.S. 242, 252

11 (1986)). “‘Where the record taken as a whole could not lead a rational trier of fact to find for the

12 nonmoving party, there is no genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co.,

13 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

14

B. Qualified Immunity

15

“The doctrine of qualified immunity protects government officials from liability for civil

16 damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or

17 constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

18 conduct.’” Wood v. Moss, 134 S.Ct. 2056, 2066–67 (2014) (quoting Ashcroft v. al-Kidd, 131 S.Ct.

19 2074, 2080 (2011)). “[T]he Supreme Court has ‘repeatedly ... stressed the importance of resolving

20 immunity questions at the earliest possible stage in litigation.’” Dunn v. Castro, 621 F.3d 1196,

21 1199 (9th Cir. 2010) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Under the applicable

22 pleading standard, the plaintiff must allege facts sufficient to make out a plausible claim that it

23 would have been clear to the defendant officer that his conduct was unlawful in the situation he

24 confronted. Id. at 2067. “Because qualified immunity is an affirmative defense from suit, not

25 merely from liability, ‘[u]nless the plaintiff’s allegations state a claim of violation of clearly

26 established law, a defendant pleading qualified immunity is entitled to dismissal before the

27 commencement of discovery.’” Doe By and Through Doe v. Petaluma City School Dist., 54 F.3d

28 1447, 1449–50 (9th Cir. 1995) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). 10

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1

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme

2 Court set forth a two-part approach for analyzing qualified immunity. The analysis contains both

3 a constitutional inquiry and an immunity inquiry. Johnson v. County of Los Angeles, 340 F.3d 787,

4 791 (9th Cir. 2003). The constitutional inquiry requires the court to determine this threshold

5 question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged

6 show the officer’s conduct violated a constitutional right?” Saucier, 533 U.S. at 201. If the Court

7 determines that a constitutional violation could be made out based on the parties’ submissions, the

8 second step is to determine whether the right was clearly established. Id. “The relevant,

9 dispositive inquiry in determining whether a right is clearly established is whether it would be

10 clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at

11 202. The Supreme Court has clarified that the sequence of analysis set forth in Saucier is not

12 mandatory and that a court may exercise its sound discretion in determining which of the two

13 prongs of the qualified immunity analysis to address first. Pearson v. Callahan, 555 U.S. 223,

14 241-42 (2009). Thus, in some cases, it may be unnecessary to reach the ultimate constitutional

15 question when officers would be entitled to qualified immunity in any event, a result consistent

16 with longstanding principles of judicial restraint.

17

The Supreme Court recently reiterated the longstanding principle that a “clearly

18 established” constitutional right “should not be defined ‘at a high level of generality.’” White v.

19 Pauly, 137 S. Ct. 548, 552 (2017) (quoting al-Kidd, 563 U.S. at 742). Rather, it must be

20 “particularized” to the facts of the case.”Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

21 (1987)). Defining the right at too high a level of generality “avoids the crucial question whether

22 the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff v.

23 Ricard, 134 S.Ct. 2012, 2023 (2014). “[A] defendant cannot be said to have violated a clearly

24 established right unless the right’s contours were sufficiently definite that any reasonable official

25 in the defendant’s shoes would have understood that he was violating it.” Id. “In other words,

26 ‘existing precedent must have placed the statutory or constitutional question’ confronted by the

27 official ‘beyond debate.’” Id. (quoting al-Kidd, 563 U.S. at 741). “A right can be clearly

28 established despite a lack of factually analogous preexisting case law, and officers can be on 11

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1 notice that their conduct is unlawful even in novel factual circumstances.” Ford v. City of Yakima,

2 706 F.3d 1188, 1195 (9th Cir. 2013). “The relevant inquiry is whether, at the time of the officers’

3 action, the state of the law gave the officers fair warning that their conduct was unconstitutional.”

4 Id.

5 III. DISCUSSION

6

A. First Cause of Action Pursuant to 42 U.S.C. § 1983: Deliberate

7

Indifference to an Inmate’s Serious Medical Needs under the Eighth Amendment

8 Plaintiffs’ first cause of action against all Defendants, including Deputy Collins, is a
9 § 1983 claim for deliberate indifference to Mr. Parenti’s serious medical needs and failure to
10 protect him from harm in violation of the Eighth Amendment to the Constitution of the United
11 States. See Compl. ¶¶ 76-86. Deputy Collins moves for summary judgment on the first cause of
12 action alleged against him for his alleged deliberate indifference to Mr. Parenti’s serious medical
13 needs. See Mot. at 8-11. Plaintiffs oppose, arguing that Deputy Collins cannot carry his burden
14 on summary judgment in light of the ample evidence from which a jury can conclude that Deputy
15 Collins was deliberately indifferent. See Opp’n at 15. Deputy Collins further asserts that even if
16 there is a triable issue on whether a constitutional violation occurred, he is entitled to qualified
17 immunity under the second prong—that the right allegedly violated was not “clearly established”
18 at the time of Deputy Collins’ actions on January 15, 2014. Mot. at 11-15. Although he need only
19 succeed on one prong to be shielded from liability, the Court finds that Deputy Collins is entitled
20 to summary judgment under both prongs of qualified immunity.
21

22

1. Constitutional Violation

23

Under the first prong of qualified immunity, the Court considers whether, taken in the light

24 most favorable to the party asserting the injury, the facts alleged show the officer’s conduct

25 violated a constitutional right. Saucier, 533 U.S. at 201. Plaintiffs argue that Deputy Collins

26 violated Mr. Parenti’s Eighth Amendment right to adequate treatment for his serious medical

27 needs. Opp’n at 15. “The Eighth Amendment protects inmates from cruel and unusual

28 punishment, which includes the denial of medical care.” Conn v. City of Reno, 591 F.3d 1081,

12

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1 1094 (9th Cir. 2009), vacated, 131 S. Ct. 1812 (2011), reinstated in part and vacated in part, 658

2 F.3d 897 (9th Cir. 2011). “Pretrial detainees, by contrast, are protected under the Due Process

3 Clause of the Fourteenth Amendment.” Id. “The Eighth and Fourteenth Amendments both

4 guarantee that inmates and detainees receive constitutionally adequate medical and mental health

5 care.” Conn, 591 F.3d at 1094. Mr. Parenti was an inmate, rather than a detainee, at the time of

6 his death on January 15, 2014, and thus the Court conducts the required analysis under the Eighth

7 Amendment.

8

The Supreme Court has emphasized that, “[j]ust as a prisoner may starve if not fed, he or

9 she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of

10 basic sustenance, including adequate medical care, is incompatible with the concept of human

11 dignity and has no place in civilized society.” Brown v. Plata, 563 U.S. 493, 510–11 (2011). To

12 bring a valid § 1983 claim for a violation of Mr. Parenti’s Eighth Amendment rights based on

13 inadequate medical care, Plaintiffs must show that Deputy Collins’ acts or omissions were

14 “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v.

15 Gamble, 429 U.S. 97, 106 (1976); Hudson v. McMillian, 503 U.S. 1, 4 (1992); Jett v. Penner, 439

16 F.3d 1091, 1096 (9th Cir. 2006).

17

Deliberate indifference has both an objective and a subjective component in order to rise to

18 an actionable Eighth Amendment violation. See Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.

19 2002); see also Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). First, a

20 plaintiff alleging deliberate indifference must “objectively show that [the inmate] was deprived of

21 something ‘sufficiently serious.’” Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062,

22 1074 (9th Cir. 2013) (quoting Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009)). “A

23 deprivation is sufficiently serious when the prison official’s act or omission results ‘in the denial

24 of the minimal civilized measure of life’s necessities.’” Id. (quoting Farmer, 511 U.S. at 834, 114

25 S.Ct. 1970). Next, the plaintiff must “make a subjective showing that the deprivation occurred

26 with deliberate indifference to the inmate’s health or safety.” Lemire, 726 F.3d at 1074. To satisfy

27 the subjective component of deliberate indifference, Plaintiffs must show that Deputy Collins

28 “knew of and disregarded” the substantial risk of harm. Id. The prison official need not have 13

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1 intended harm: “it is enough that the official acted or failed to act despite his knowledge of a

2 substantial risk of serious harm.” Id.

3

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

4 (9th Cir. 2004). A showing of medical malpractice or mere negligence is insufficient to establish a

5 constitutional deprivation under the Eighth Amendment. Id. Rather, deliberate indifference lies

6 “somewhere between the poles of negligence at one end and purpose or knowledge at the other.”

7 Farmer v. Brennan, 511 U.S. 825, 836 (1994). Under the deliberate indifference standard, the

8 prison official must not only “be aware of facts from which the inference could be drawn that a

9 substantial risk of serious harm exists,” but that person “must also draw the inference.” Id.

10 (quoting Farmer, 511 U.S. at 837). Liability may follow only if a prison official “knows that

11 inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable

12 measures to abate it.” Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847); see

13 also Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (“Deliberate indifference may be

14 reflected through either action or inaction such as denial, delay, or intentional interference with

15 medical treatment.”).

16

The Supreme Court has explained that it is “fair to say that acting or failing to act with

17 deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of

18 recklessly disregarding that risk.” Farmer, 511 U.S. at 836. “If a [prison official] should have

19 been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no

20 matter how severe the risk.” Id. (quoting Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1187

21 (9th Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th

22 Cir. 2016)). Finally, Plaintiffs must also demonstrate that Deputy Collins’ actions were both an

23 actual and proximate cause of Mr. Parenti’s injuries. See Conn, 591 F.3d at 1098–1101; see also

24 Clouthier v. County of Contra Costa, 591 F.3d 1232, 1245 n.3 (9th Cir. 2010) (citing White v.

25 Roper, 901 F.2d 1501, 1505 (9th Cir. 1990)).

26

Unsurprisingly, the parties have diametrically opposed views of what happened in the D-

27 wing at the Monterey County Jail’s Rehabilitation Unit on January 15, 2014. Defendants describe

28 the events as a routine, non-emergency “sick call” to inmates who had requested or been referred 14

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1 to the doctor, and a decision by a 28-year veteran deputy to let Mr. Parenti continue sleeping when

2 he was found snoring in his bed. Plaintiffs’ view of the facts is that Mr. Parenti was unresponsive

3 when Deputy Collins tried to rouse him, and Deputy Collins violated protocol and callously left a

4 helpless man to die in his jail bed, which amounts to deliberate indifference. On summary

5 judgment, even under the qualified immunity analysis, the Court must believe Plaintiffs’ evidence,

6 and draw all reasonable inferences in their favor. Plaintiffs’ “version of any disputed issue of fact

7 is thus presumed correct.” Thomas v. Ponder, 611 F.3d 1144, 1149 (9th Cir. 2010). The question

8 before the Court on summary judgment is whether a genuine issue of material fact exists such

9 there is a triable issue on whether Deputy Collins was deliberately indifferent to Mr. Parenti’s 10 serious medical needs.9 Id.

11

Plaintiffs acknowledge that the “key issue” in this case is whether Deputy Collins had

12 knowledge of Mr. Parenti’s serious medical need on the morning of January 15, 2014, and his

13 obligation to respond to that need. See Opp’n at 15-16. This is the subjective element of

14 deliberate indifference, which requires a plaintiff to show that Deputy Collins “knew of and

15 disregarded” the substantial risk of harm to Mr. Parenti. Lemire, 726 F.3d at 1074. Deputy

16 Collins argues that there can be no § 1983 liability for deliberate indifference because there is no

17 evidence that he had knowledge of an acute medical need of Mr. Parenti at the time of the “sick

18 call” rounds with Dr. Fithian. Mot. at 10-11. Rather, Deputy Collins argues that it is undisputed

19 that he had no medical information about Mr. Parenti, so when Mr. Parenti failed to respond after

20 his name was called for a routine “sick call,” Deputy Collins’ decision to let him sleep—after he

21 grumbled when Deputy Collins tapped his shoulder several times—was not deliberate indifference

22 to a serious medical need. Id.

23

The Court agrees that Deputy Collins ignores a number of disputed facts in the record. For

24 example, in contrast to Deputy Collins’ testimony that he did not know that Mr. Parenti had any

25 medical issues, in his interview shortly after Mr. Parenti’s death on January 15, 2014, Deputy

26 Collins recalled that Mr. Parenti had a medical problem and would go to sick call a lot. See

27

28

9 As discussed below, even if a triable issue exists on the constitutional violation, Deputy Collins may still be entitled to qualified immunity if the constitutional right was not clearly established.

15

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1 Collins Interview 1/15/2014 at 7:3-20. The four inmate witnesses also provide sworn affidavits

2 that instead of just “tapping” Mr. Parenti on the shoulder, Deputy Collins actually shook Mr.

3 Parenti and called his name loudly, but Mr. Parenti “did not respond.” Rappa Decl. ¶ 11; Esquivel 4 Decl. ¶ 4; Griffin Decl. ¶¶ 10-11; Wolfe Decl. ¶ 12.10

5

Although the Court considers these factual disputes and does not credit Deputy Collins’

6 version of the facts at summary judgment, Plaintiffs have not shown that the evidence they

7 provide supports facts material to the subjective component of deliberate indifference. There is

8 simply no evidence in the record that Deputy Collins was subjectively aware of facts from which

9 the inference could be drawn that a substantial risk of serious harm to Mr. Parenti existed, or that

10 Deputy Collins actually drew the inference that such a risk existed. Farmer, 511 U.S. at 837. As

11 laid out in the factual background above, the Court credits Plaintiffs’ evidence that Deputy Collins

12 called Mr. Parenti during the morning rounds for a sick call that Mr. Parenti had requested. There

13 is evidence from several inmates that Mr. Parenti was laying unresponsive on his bunk and did not

14 wake up even when Deputy Collins repeatedly called his name loudly from right next to him and

15 shook him. See Wolfe Decl. ¶ 12; Griffin Decl. ¶ 11; Rappa Decl. ¶ 11; Esquivel Decl. ¶ 4.

16 However, it is undisputed that Mr. Parenti was breathing during Deputy Collins’ interaction with

17 him, and the inmate witnesses do not dispute Deputy Collins’ recollection that Mr. Parenti was

18 snoring. See Rifkin Decl. Volume I, Transcript of February 4, 2014 Interview of Deputy Collins

19 (“Collins Interview 2/4/2014”), Exh. 208 at 9:4-6. It is also undisputed that Mr. Parenti had been

20 awake a few hours earlier that morning, when he had breakfast in the D-wing. Wolfe Decl. ¶ 9.

21

When Mr. Parenti did not respond to being called and shaken multiple times, Plaintiffs

22 point to evidence that Deputy Collins left Mr. Parenti in his bunk and did not report his

23 unresponsiveness to medical personnel or to his supervisors. In fact, Plaintiffs attempt to dispute

24

25 10 The Court notes that three of the inmate witnesses also testified that Mr. Parenti showed them

26

blood on his pillow or they observed Mr. Parenti coughing up blood in the days prior to his death. However, none of the witnesses testifies that there was blood on Mr. Parenti’s pillow or that he

27

coughed up blood on the morning in question during his interaction with Deputy Collins. See, e.g., Rappa Decl. ¶ 6; Griffin Decl. ¶ 5; Wolfe Decl. ¶ 7. Accordingly, the Court cannot draw a

28

reasonable inference from this evidence that there was blood in the bunk on the morning of January 15, 2014 such that it would have been sufficiently obvious to Deputy Collins.

16

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1 Deputy Collins’ testimony at his deposition in May 2016, when Deputy Collins “remembered” not

2 only that Mr. Parenti “grumbled” something in response to his tapping (as opposed to just snoring,

3 as previously reported), but also that Deputy Collins told Dr. Fithian that Mr. Parenti was

4 “sleeping pretty good,” and Dr. Fithian responded “okay, I’ll come back later.” Collins Depo.

5 87:7-24. The Court accepts the testimony of the inmate witnesses that Mr. Parenti “did not

6 respond,” to Deputy Collins that morning, and therefore Deputy Collins’ testimony that Mr.

7 Parenti “grumbled” a response is disputed. However, the Court finds that Deputy Collins’

8 testimony that he told Dr. Fithian that Mr. Parenti was “sleeping pretty good,” is undisputed.

9

Dr. Fithian himself does not remember anything about what happened on the morning in

10 question, and does not recall “anything that Deputy Collins said about Jacob Parenti on the

11 morning of January 15, 2014.” Fithian Depo. at 25:15-26:9. Plaintiffs argue that Deputy Collins’

12 account of the events surrounding Mr. Parenti’s death changed over time from his initial

13 interviews with investigators in January and February 2014, through his deposition on May 12,

14 2016, and again in his declaration signed September 29, 2017. Plaintiffs argue that a triable issue

15 of fact exists because Deputy Collins did not initially report to investigators that he made any

16 comment to Dr. Fithian when Mr. Parenti did not get up for sick call. See Collins Interview 17 1/15/14 at 8:14-25.11

18

After the hearing on Deputy Collins’ motion for summary judgment, the Court ordered

19 supplemental briefing on whether the discrepancies in Deputy Collins’ recollection of events over

20 the years constitutes evidence of disputed facts that the Court must consider on summary

21 judgment. Plaintiffs argue that Deputy Collins’ omission of his comment to Dr. Fithian in his

22 2014 interviews is materially inconsistent with Deputy Collins’ deposition testimony and

23

11 Plaintiffs mischaracterize the interview transcript in their opposition, stating that Deputy Collins 24 “reported” to Nurse Maureen that Mr. Parenti changed his mind about going to sick call. See

25 Opp’n at 5 (citing Collins Interview 1/15/14 at 9:3-8). Rather, this portion of the interview transcript is in response to the investigator’s question: “[W]ho does [Mr. Parenti] report that to if

26 he’s not going to go [to sick call]?” to which Deputy Collins responded: “To the nurse. To the
nurse that’s doing sick call. And I think this morning it was Nurse Maureen.” Collins Interview 27 1/15/14 at 9:3-6. Thus, this portion of the interview discussed who Mr. Parenti would have

28

reported to if he did not want to go to sick call, and says nothing about what was actually reported to medical staff on the day in question.

17

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1 declaration years later. See Plaintiffs’ Supplemental Brief at 2, ECF 105. Plaintiffs urge the Court

2 to consider these omissions as prior inconsistent statements that raise a factual issue precluding

3 summary judgment. Id. The Court is not persuaded, because Deputy Collins’ deposition

4 testimony is not “internally inconsistent” with his earlier reports to investigators. Plaintiffs point

5 to no questions or responses from those interviews where an investigator elicited information from

6 Deputy Collins regarding what he said to Dr. Fithian. It is not enough that Deputy Collins did not

7 volunteer such information in the earlier interviews.

8

Even accepting Deputy Collins’ first two interviews with investigators as true, no

9 reasonable jury could find a contradiction between Deputy Collins’ interview responses and his

10 later testimony that he told Dr. Fithian that Mr. Parenti was “sleeping pretty good,” after he was

11 unable to rouse Mr. Parenti. Accordingly, there is no genuine factual dispute on this point.

12 Plaintiffs impermissibly ask the Court to make a credibility determination at summary judgment.

13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202

14 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate

15 inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion

16 for summary judgment or for a directed verdict.”); see also House v. Bell, 547 U.S. 518, 559–60,

17 126 S. Ct. 2064, 2089, 165 L. Ed. 2d 1 (2006) (“[T]he district court does not assess credibility or

18 weigh the evidence, but simply determines whether there is a genuine factual issue for trial.”) In

19 any event, the Court finds that this factual dispute is immaterial to the issue at hand. Even if

20 Deputy Collins never told Dr. Fithian that Mr. Parenti was asleep, it does not create a triable issue

21 on deliberate indifference, because there is no evidence that Deputy Collins had knowledge of a

22 risk of harm to Mr. Parenti.

23

Deputy Collins also testified that he was trained in responding to medical issues in jails,

24 including identifying a potential overdose or medical emergency. See Collins Depo. at 62:19-

25 65:20, 71:3-72:11. Yet there is no evidence that Deputy Collins was aware of an overdose or a

26 medical emergency when he interacted with Mr. Parenti on January 15, 2014. On the day of Mr.

27 Parenti’s death, however, Deputy Collins was aware that two inmates in the D-wing of the jail had

28 overdosed in January 2014 alone, and that Mr. Parenti was a “casual drug user” based on the 18

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1 charges he was in jail for. Id. Collins Dep. at 80:3-14, 81:11-24, 82:19-25. Yet Plaintiffs also

2 submit evidence from their independent autopsy and toxicology specialist concluding that Mr.

3 Parenti’s death was not the result of having any drugs in his system. See Exh. 210 at 4. It is not

4 reasonable to infer from Plaintiffs’ evidence that deputies had the obligation to wake up every

5 sleeping inmate to ensure he is not sick or suffering from an overdose. Deputy Collins’

6 knowledge of this general information in the D-Wing is immaterial to his awareness of a serious

7 risk to Mr. Parenti’s medical needs that morning. The Court finds that there is no evidence that

8 Deputy Collins would have had a heightened awareness that Parenti was on drugs or was suffering

9 from a medical emergency when he did not wake up for a psychiatric sick call.

10

Plaintiffs also point to the testimony of Captain Bass, Defendants’ Rule 30(b)(6) witness,

11 who stated that when an officer finds an inmate who may be unconscious, the officer is trained to

12 secure the scene, call for more advanced medical personnel, and check for signs of life. Bass

13 Depo. 48:14-49:12. According to Captain Bass, the first step in checking for signs of life is

14 “[t]rying to arouse them.” Id. 49:7-12. However, there is no evidence in the record that Mr.

15 Parenti was unconscious at the time Deputy Collins approached his bunk—or more importantly,

16 that Deputy Collins had awareness that he was unconscious—only that Mr. Parenti was sleeping,

17 snoring, and unresponsive to several attempts to wake him.

18

Even drawing all reasonable inferences from these facts in Plaintiffs’ favor, there is no

19 genuine dispute of material fact on the constitutional question of whether Deputy Collins was

20 deliberately indifferent to Mr. Parenti’s serious medical need. No reasonable jury could find that

21 Deputy Collins acted with deliberate indifference by denying, delaying, and interfering with Mr.

22 Parenti’s medical treatment because there is no evidence upon which a jury could conclude that

23 Deputy Collins was subjectively aware of a substantial risk to harm to Mr. Parenti and recklessly 24 disregarded that risk.12 Clement v. Gomez is instructive on the kind of evidence sufficient to send

25

26 12 Plaintiffs urge this Court to consider the decision in Frary v. Cty. of Marin, where the court

found that triable issues existed based on similar factual circumstances. 81 F. Supp. 3d 811, 830 27 (N.D. Cal. 2015). In Frary, Deputy Hammer attempted to rouse an unresponsive, snoring inmate,

28

and moved on without reporting his unresponsiveness despite several attempts to wake him. Id.at 829. The court concluded that a genuine dispute of material fact existed as to whether Deputy

19

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1 the question of deliberate indifference to the jury. 298 F.3d 898, 904 (9th Cir. 2002). As

2 discussed in detail below under the second prong of qualified immunity, Clement involved jail

3 deputies who experienced the ill-effects of pepper spray—which was evidenced by the deputies

4 taking turns stepping outside for fresh air, and coughing and gagging in the hall—and yet those

5 deputies denied showers and medical attention to the inmates who the deputies knew had also

6 been exposed to the pepper spray’s harmful effects. Id. at 905. The Ninth Circuit concluded that

7 such evidence was sufficient for the prisoners to survive summary judgment on the issue of

8 whether the deputies were subjectively aware of the risk of serious injury to the prisoners. Id. In

9 contrast, evidence of Deputy Collins’ awareness of Mr. Parenti’s condition is entirely lacking from

10 this case.

11

For the foregoing reasons and drawing all inferences from the evidentiary record in favor

12 of Plaintiffs, the Court finds that Deputy Collins is entitled to summary judgment on Plaintiffs’

13 first cause of action because there is no triable issue on whether Deputy Collins was deliberately

14 indifferent to Mr. Parenti’s serious medical needs on the morning of January 15, 2014. Moreover,

15 even if a triable issue on the constitutional question existed, Deputy Collins is shielded under the

16 second prong of qualified immunity. See White v. Pauly, 137 S. Ct. 548, 551 (2017).

17

2. Clearly Established

18

Qualified immunity also protects government officials from liability for civil damages

19 insofar as their conduct “does not violate clearly established statutory or constitutional rights of

20 which a reasonable person would have known.” White v. Pauly, 137 S. Ct. at 551 (2017).

21 “Because the focus is on whether the officer had fair notice that her conduct was unlawful,

22 reasonableness is judged against the backdrop of the law at the time of the conduct.” Brosseau v.

23

24

Hammer acted with deliberate indifference to the inmate’s serious medical needs. Id. at 830. As explained at the hearing, Frary is not controlling law and it is also distinguishable because there

25 was evidence that a trustee nearby commented to Deputy Hammer that the inmate “looks dead.” Id. at 829. Here, there is no evidence that any inmate made a comment to Deputy Collins that

26 would permit the Court to infer his awareness of a substantial risk of harm. In fact, when Deputy

Collins asked the other inmates if Mr. Parenti “always slept like that,” the response was “we don’t 27 know,” and Deputy Collins said “well he’s going to miss sick call.” Rappa ¶¶ 12-14. Based on the

28

undisputed facts in the record, no reasonable jury could find that Deputy Collins knew of and disregarded an excessive risk to Mr. Parenti’s safety.

20

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1 Haugen, 543 U.S. 194, 198 (2004). “The relevant, dispositive inquiry in determining whether a

2 right is clearly established is whether it would be clear to a reasonable officer that his conduct was

3 unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. Although the Supreme Court

4 “does not require a case directly on point for a right to be clearly established, existing precedent

5 must have placed the statutory or constitutional question beyond debate.” White, 137 S.Ct., at 551

6 (internal quotation marks omitted). “In other words, immunity protects all but the plainly

7 incompetent or those who knowingly violate the law.” Id.

8

The Supreme Court has consistently told lower courts, and the Ninth Circuit in particular,

9 that clearly established law should not be defined at a high level of generality. See Kisela v.

10 Hughes, No. 17-467, 2018 WL 1568126, at *2 (U.S. Apr. 2, 2018) (quoting City and County of

11 San Francisco v. Sheehan, 135 S.Ct. 1765, 1775–1776 (2015)); see also White v. Pauly, 137 S. Ct.

12 at 552 (quoting al-Kidd, 563 U.S. at 742). Rather, clearly established law must be “particularized”

13 to the facts of the case, otherwise the analysis “avoids the crucial question whether the official

14 acted reasonably in the particular circumstances that he or she faced.” Plumhoff v. Ricard, 134

15 S.Ct. 2012, 2023 (2014). An officer “cannot be said to have violated a clearly established right

16 unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s

17 shoes would have understood that he was violating it.” Id.

18

Further, the Ninth Circuit is unequivocal that the burden is on the plaintiff to point to case

19 law indicating that the right allegedly violated was clearly established. “Except in the rare case of

20 an ‘obvious’ instance of constitutional misconduct…Plaintiffs must identify a case where an

21 officer acting under similar circumstances as [Officer Pfiefer] was held to have violated the Fourth

22 Amendment.” Sharp v. County of Orange, No. 15-56146, 2017 WL 4126947, at *7 (9th Cir. Sept.

23 19, 2017) (emphasis in original) (quoting White, 137 S.Ct. at 552). The preexisting law identified

24 must also be “controlling—from the Ninth Circuit or Supreme Court—or otherwise be embraced

25 by a consensus of courts outside the relevant jurisdiction.” Id.

26

As applied to this case, Deputy Collins argues that even if a triable issue exists as to a

27 constitutional violation, qualified immunity shields him from liability if a deputy in his shoes

28 could have reasonably believed his actions were legal in light of clearly established law and the 21

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1 information he possessed at the time. See Mot. at 12. Even if a constitutional violation occurred,

2 Plaintiffs have the burden to show that every reasonable officer would have known that Deputy

3 Collins’ conduct was unconstitutional under the circumstances. Thompson v. Rahr, 885 F.3d 582

4 (9th Cir. 2018). Even construing all evidence in favor of Plaintiffs, they have not carried their

5 burden to show that the law was “clearly established” such that Deputy Collins had fair warning

6 that his conduct was unconstitutional within the Supreme Court’s parameters for qualified

7 immunity.

8

“Although we must view the facts in the light most favorable to the nonmoving party,

9 when considering qualified immunity, we are also limited to considering what facts the officer

10 could have known at the time of the incident.” Davis v. United States, 854 F.3d 594, 598 (9th Cir.

11 2017) (citing White, 137 S.Ct. at 550). Ultimately, the Court asks “whether [Deputy Collins]

12 would be entitled to qualified immunity as a matter of law, assuming all factual disputes are

13 resolved, and all reasonable inferences are drawn, in plaintiff’s favor.” Estate of Lopez by &

14 through Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017) (internal citation and quotation

15 omitted).

16

As before, the Court resolves all factual disputes in favor of Plaintiffs. The Court therefore

17 does not credit Deputy Collins’ disputed testimony that Mr. Parenti “grumbled” a response to him

18 that Collins interpreted as a refusal to attend sick call. Rather, the Court accepts Plaintiffs’

19 evidence that Mr. Parenti did not respond when Deputy Collins walked over to Mr. Parenti’s bunk

20 and loudly called his name and shook him. At that moment in time, Deputy Collins was aware

21 that Mr. Parenti had a history of drug use and medical problems and was often on the sick call list.

22 Deputy Collins was further aware that two inmates in the same housing unit as Mr. Parenti had

23 overdosed on drugs only a few days prior. Deputy Collins was also trained on how to respond to

24 overdoses and emergencies. Yet after being unable to rouse Mr. Parenti, Deputy Collins did not

25 alert any medical staff or supervisors to the fact that Mr. Parenti was unresponsive, and did not

26 return to check on Mr. Parenti until he saw the “man down” call nearly an hour later.

27

With these facts in mind, Plaintiffs frame the qualified immunity analysis as follows:

28 “whether, as of January 2014, the law was clearly established that a custody officer could not be 22

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1 deliberately indifferent to an inmate in serious medical need and whether a reasonable officer

2 would have known that it was a violation of this legal obligation to leave an inmate who was not

3 responsive without summoning any medical provider, providing emergency response, or even

4 coming back to check on the inmate within a short time period.” Opp’n at 19. The Court finds

5 that Plaintiffs have cast the constitutional right at too high a level of generality. It is not enough

6 that the law “clearly establishes” that prisoners have the right to adequate medical treatment.

7 Rather, it must be clearly established as of January 15, 2014, that a deputy could not leave a

8 sleeping inmate with a history of drug use and medical problems who did not respond to being

9 called and shaken for a non-emergency visit with a psychiatrist, without fully waking the inmate

10 or notifying medical personnel or supervisors that the inmate was unresponsive.

11

Plaintiffs also incorrectly place the burden on Deputy Collins to cite to a case

12 demonstrating that the right was not clearly established and that officers were not sufficiently on

13 notice of their legal obligation to provide care to an unresponsive inmate. Opp’n at 19. The Ninth

14 Circuit has made clear that the burden is on Plaintiffs. Sharp, 871 F.3d at 911 (“Plaintiffs must

15 point to prior case law that articulates a constitutional rule specific enough to alert these deputies

16 in this case that their particular conduct was unlawful.”) (emphasis in original); see also

17 Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011) (“The plaintiff bears the

18 burden to show that the contours of the right were clearly established.”)

19

The Court has considered the cases offered by Plaintiffs to define the clearly established

20 right, and finds that they have not met their burden. Plaintiffs cite to Estelle v. Gamble, 429 U.S.

21 97, 104-05 (1976), Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002), and Estate of Prasad ex

22 rel. Prasad v. Cty. of Sutter, 958 F. Supp. 2d 1101, 1112-1113 (E.D. Cal. 2013). See Opp’n at 20.

23 Plaintiffs also rely on Frary v. Cty. of Marin, 81 F. Supp. 3d 811, 828 (N.D. Cal. 2015). Opp’n at

24 20. However, Frary itself cannot clearly establish anything in this case, because it is not 25 controlling precedent and it was decided after the events at issue took place on January 15, 2014.13

26

In Estelle, the plaintiff was an inmate in the Texas Department of Corrections who was

27

28

13 To the extent that Frary holds that Clement clearly establishes the right at issue, this Court conducts its own analysis of Clement in light of Supreme Court guidance on qualified immunity.

23

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1 injured when a bale of cotton fell on him while he was performing a prison work assignment to

2 unload a truck. 429 U.S. at 99. He continued to work, but later sought medical treatment for back

3 pain. Id. at 99-100. Jail staff ultimately concluded that plaintiff was able to work, and plaintiff

4 was repeatedly disciplined for his refusal to work due to his injuries. Id. The Supreme Court held

5 that even applying liberal standards for pro se litigants, the plaintiff’s claims against the treating

6 physician are not cognizable under section 1983. Id. at 107. The facts of Estelle are not at all

7 “particularized” to the facts of this case such that they would put a reasonable officer in Deputy

8 Collins’ position that his conduct was unconstitutional. Rather, Estelle marks the Supreme

9 Court’s general conclusion that “deliberate indifference to serious medical needs of prisoners” is

10 proscribed by the Eighth Amendment. Id. at 104.

11

Clement is similarly general, and does not clearly establish that Deputy Collins’ conduct in

12 this case was unconstitutional under the Eighth Amendment. In Clement, a violent fight erupted

13 inside a prison cell, and the responding correctional officers administered several bursts of pepper

14 spray when the inmates failed to respond to several orders and attempts to break up the fight. 298

15 F.3d 898, 901 (9th Cir. 2002). Inmates in neighboring cells claimed that the spray vapors drifted

16 into their cells, injuring them. Id. Those inmates alleged that the officials were deliberately

17 indifferent to their serious medical needs because they “were aware of the harmful effects of the

18 pepper spray and of the inadequacy of their ventilation methods and yet purposefully refused to

19 provide showers, medical care, or combative instructions or to develop an adequate policy to

20 address obvious risks.” Id. at 904.

21

The Ninth Circuit in Clement affirmed the district court’s denial of summary judgment

22 based on the officials’ assertion of qualified immunity. Id. In examining the second prong of

23 qualified immunity, the Clement court noted that “[t]he general law regarding the medical

24 treatment of prisoners was clearly established at the time of the incident.” Id. at 906

25 (citing Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992). The Ninth Circuit also relied on

26 Estelle to find that it was also clearly established that the officers could not intentionally deny or

27

28 24

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1 delay access to medical care. Id.14

2

The Court finds that Estelle and Clement are cast at too high a level of generality for the

3 required qualified immunity analysis, and these cases do not put the constitutional question

4 confronting Deputy Collins on January 15, 2014 “beyond debate.” See White, 137 S.Ct. at 551.

5 Importantly, in both cases, the defendants denied requested medical care for medical conditions

6 they were aware of. Although “general statements of the law are not inherently incapable of

7 giving fair and clear warning to officers,” id. at 552, the general law that prisoners have the right

8 to adequate medical treatment and that an officer’s denial or delay in provision of that medical

9 treatment violates the Eighth Amendment, does not amount to clearly established law in this 10 case.15

11

At most, Clement clearly establishes that where officers know that pepper spray harmed

12 inmates in neighboring cells who were bystanders to a fight, based on the officers own experience

13 with the harmful effects of pepper spray, those officers are deliberately indifferent to serious

14 medical needs by denying the inmates showers and access to medical care following the incident.

15 298 F.3d 898, 906 (9th Cir. 2002). Clement would not have alerted a reasonable official in Deputy

16 Collins’ position on January 15, 2014, that it would be unlawful to leave a sleeping inmate with a

17 history of drug use and medical problems who did not respond to being called and shaken for a

18

19

14 The third case cited by Plaintiffs, Prasad, is not controlling Ninth Circuit or Supreme Court authority and thus the Court need not consider it. Sharp, 2017 WL 4126947, at *7. Moreover,

20

Plaintiffs do not demonstrate that Prasad forms a “consensus” with other court decisions amounting to clearly established preexisting law. Id. Regardless, Prasad is too factually

21

dissimilar because it dealt with a pretrial detainee who was taken to see a doctor for emergency treatment, who discharged him with specific instructions to be returned to the emergency

22

department if his symptoms worsened or new symptoms developed. 958 F. Supp. 2d at 1113. The defendant deputies were aware of this order and observed Prasad’s condition worsen and develop,

23

but did not return him to the emergency room. Id. The District Court for the Eastern District of California held that this amounted to deliberate indifference to Prasad’s serious medical needs. Id.

24

Even if Prasad represented controlling law, a reasonable deputy in Deputy Collins’ position would not be on notice that letting Mr. Parenti sleep in a non-emergency situation violated clearly

25

established law. See Ford v. City of Yakima, 706 F.3d at 1195 (“The relevant inquiry is whether, at the time of the officers’ action, the state of the law gave the officers fair warning that their

26

conduct was unconstitutional.”) 15 Plaintiffs also argue, without citing to any authority, that the County of Monterey’s own policies

27

and training put Deputy Collins on notice of his obligations to call for advanced medical personnel and trying to rouse Mr. Parenti in the situation he confronted. Opp’n at 20. The Court is unaware

28

of any authority suggesting jail policies and procedures alone can amount to a clearly established statutory or constitutional right.

25

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1 non-emergency visit with a psychiatrist, without fully waking the inmate or notifying medical

2 personnel or supervisors that the inmate was unresponsive. The Supreme Court’s guidance in the

3 years since Estelle and Clement has consistently told lower courts that they cannot define clearly

4 established law at a high level of generality, and must evaluate the law under the particularized

5 circumstances of the case. See Kisela, 2018 WL 1568126, at *2 (quoting Sheehan, 135 S.Ct. at

6 1775–1776).

7

For the foregoing reasons, Plaintiffs have failed to meet their burden that the law was

8 clearly established on January 15, 2014. Accordingly, Deputy Collins is shielded by qualified

9 immunity and his motion for partial summary judgment on the first cause of action is GRANTED.

10

B. Second Cause of Action Pursuant to 42 U.S.C. § 1983: Deprivation of

11

Substantive Due Process Rights to Familial Association under the Fourteenth Amendment

12

Deputy Collins also moves for summary judgment on Plaintiffs’ second § 1983 cause of

13 action for a violation of substantive due process. “The substantive due process right to family

14 integrity or to familial association is well established.” Rosenbaum v. Washoe Cnty., 663 F.3d

15 1071, 1079 (9th Cir. 2011). “A parent has a fundamental liberty interest in companionship with

16 his or her child.” Kelson v. City of Springfield, 767 F.2d 651, 654–55 (9th Cir.1985). The

17 violation of the right to family integrity is subject to remedy under § 1983. Id. “Parents and

18 children may assert Fourteenth Amendment substantive due process claims if they are deprived of

19 their liberty interest in the companionship and society of their child or parent through official

20 conduct.” Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013). To

21 amount to a violation of substantive due process, however, the harmful conduct must “shock the

22 conscience” or “offend the community’s sense of fair play and decency.” Rosenbaum, 663 F.3d at

23 1079.

24

“Just as the deliberate indifference of prison officials to the medical needs of prisoners may

25 support Eighth Amendment liability, such indifference may also rise to the conscience-shocking

26 level required for a substantive due process violation.” Lemire, 726 F.3d at 1075 (internal citation

27 and quotations omitted). The Ninth Circuit held in Lemire that “[a] prison official’s deliberately

28 indifferent conduct will generally ‘shock the conscience’ so as long as the prison official had time 26

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1 to deliberate before acting or failing to act in a deliberately indifferent manner.” Id. (citing

2 Tennison v. City and Cnty. of San Francisco, 570 F.3d 1078, 1089 (9th Cir.2009); Porter v.

3 Osborn, 546 F.3d 1131, 1138 (9th Cir.2008)).

4

Plaintiffs concede that their second cause of action under § 1983 rises and falls with the

5 Eighth Amendment violation. See Opp’n at 22. As explained above regarding Deputy Collins’

6 entitlement to qualified immunity on the Eighth Amendment violation, the Court finds that

7 summary judgment is also appropriate on Plaintiffs’ second cause of action for a substantive due

8 process violation. There are no genuine issues of material fact as to whether Deputy Collins acted

9 with deliberate indifference and thereby deprived Plaintiffs Susan Parenti and D.P-O. of their

10 relationship with Mr. Parenti. Accordingly, no reasonable jury could conclude based on the

11 evidence in the record that Deputy Collins’ conduct “shocked the conscience.” Lemire, 726 F.3d at

12 1075.

13

Deputy Collins’ motion for partial summary judgment on Plaintiffs’ § 1983 claim for loss

14 of familial association is GRANTED.

15

C. Third Cause of Action Pursuant to California State Law: Failure to

16

Furnish/Summon Medical Care under California State Law

17

Deputy Collins analyzes Plaintiffs’ first three causes of action against him under a

18 deliberate indifference standard, referring to the framework for analyzing a § 1983 claim, when

19 the Complaint only alleges two causes of action under § 1983. See Mot. at 8; see also Reply at 3,

20 ECF 103. Although the caption of Plaintiffs’ Complaint incorrectly listed the third cause of action

21 for failure to furnish/summon medical care as a § 1983 claim, the Complaint itself is clear that the

22 third cause of action is brought under state law. See Compl. ¶¶ 91-96. Plaintiffs identify their

23 third cause of action as “Failure to Furnish/Summon Medical Care,” indicating that it is a

24 “Survival Action – California State Law” against “All Defendants.” Compl. at 17. Specifically,

25 Plaintiffs allege that “[t]he conduct of Defendants alleged herein, including but not limited to the

26 facts that Defendants knew or had reason to know that Jacob Parenti was in need of immediate

27 medical care and that Defendants failed to take reasonable action to summon or provide that care,

28 resulting in Jacob Parenti’s death as alleged herein, violated California state law, including Cal. 27

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1 Govt. Code §§ 844.6 and 845.6.” Id. ¶ 93.

2

Accordingly, the Court finds that Defendants have adequate notice of Plaintiffs’ third

3 cause of action against them, and Deputy Collins did not properly seek partial summary judgment

4 on this claim. Instead, Deputy Collins only vaguely identifies the failure to furnish/summon

5 medical care cause of action by erroneously grouping it with Plaintiffs’ § 1983 causes of action

6 without explanation. Mot. at 8 (“Plaintiffs’ first three causes of action against Collins are

7 analyzed under a deliberate indifference standard.”) Deputy Collins also does not properly

8 address the claim in his discussion of the state law causes of action, or in his reply after Plaintiffs

9 raised this issue in their opposition. See Opp’n at 22 n.9; Reply at 3.

10

To the extent Deputy Collins moves for partial summary judgment on Plaintiffs’ third

11 cause of action for failure to furnish/summon medical care pursuant to California Government

12 Code § 845.6, the motion is DENIED. The Court also finds that summary judgment is

13 inappropriate on the third cause of action for the reasons discussed below regarding the state law

14 causes of action.

15

D. Fifth and Sixth Causes of Action Pursuant to California State Law: Negligence

16

and Wrongful Death

17

Finally, Deputy Collins moves for summary judgment on Plaintiffs’ fifth and sixth causes

18 of action alleged against him for negligence and wrongful death in violation of California state

19 law. See Mot. at 15-16. “Negligence is the failure to use reasonable care to prevent harm to

20 oneself or to others” when there is a legal duty to use such care. Coppola v. Smith, 953 F.Supp.2d

21 993, 1013 (E.D. Cal. 2013). Jail and prison guards “generally have a duty to protect inmates from

22 harm.” Harding v. City & Cty. of San Francisco, No. C 10-04914 LB, 2012 WL 12540008, at *13

23 (N.D. Cal. Dec. 26, 2012), aff’d, 602 F. App’x 380 (9th Cir. 2015) (citing Giraldo v. California

24 Dept. of Corr. & Rehab., 168 Cal.App. 4th 231, 245 (2008)); see also Cal. Govt. Code §§ 844.6(d)

25 and 820.8 (“nothing in this section exonerates a public employee from liability for injury

26 proximately caused by his negligent or wrongful act or omission.”) Negligence is a lesser

27 standard than deliberate indifference and does not require that the public official has knowledge or

28 even subjective awareness of a serious risk in order to be found liable. Farmer, 511 U.S. at 836. 28

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1

As for the sixth cause of action, the elements of a California wrongful death claim are: “(1)

2 a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of

3 [another] person.’ ” Norgart v. Upjohn Co., 21 Cal.4th 383, 390 (1999) (quoting Cal. Civ. Proc.

4 Code § 377.60). “A wrongful death claim may be predicated on negligence or other tortious

5 conduct.” Prasad, 958 F. Supp. 2d 1101, 1118 (E.D. Cal. 2013).

6

Deputy Collins argues that he is entitled to statutory immunity on the negligence and

7 wrongful death claims under the immunity provided by California Government Code section

8 845.6. Mot. at 15; Reply at 8. That section provides in part that “[n]either a public entity nor a

9 public employee is liable for injury proximately caused by the failure of the employee to furnish or

10 obtain medical care for a prisoner in his custody.” Cal. Gov’t Code § 845.6 (West). An exception

11 exists “if the employee knows or has reason to know that the prisoner is in need of immediate

12 medical care and he fails to take reasonable action to summon such medical care.” Id.

13

“Liability of public entities and public employees under Government Code section 845.6 is

14 limited to serious and obvious medical conditions requiring immediate care.” Lucas v. Cty. of Los

15 Angeles, 47 Cal. App. 4th 277, 288 (1996) (citing Watson v. State of California, 21 Cal.App.4th

16 836, 841 (1993)). Under California law, the duty of such public entities and officials to provide

17 medical care to prisoners is limited to “cases where there is actual or constructive knowledge that

18 the prisoner is in need of immediate medical care.” Id. This is an objective standard. Id.

19 “[S]ection 845.6 creates out of the general immunity a limited cause of action against a public

20 entity for its employees’ failure to summon immediate medical care only…The statute does not

21 create liability of the public entity for malpractice in furnishing or obtaining that medical

22 care.” Frary v. Cty. of Marin, 81 F. Supp. 3d 811, 842 (N.D. Cal. 2015) (quoting Castaneda v.

23 Dep’t of Corrs. & Rehab., 212 Cal.App.4th 1051, 1070 (2013), review denied (May 1, 2013)).

24

Deputy Collins essentially argues that the state law claims must fail for the same reasons

25 that the section 1983 claims fail: because “[t]here is simply no evidence to establish that Deputy

26 Collins denied, delayed or interfered with Parenti’s medical treatment.” Reply at 11. On this

27 point, the Court agrees with Plaintiffs that Frary is instructive. See Opp’n at 24. In Frary,

28 although the court found that summary judgment was appropriate against certain deputies because 29

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1 section 845.6 does not impose a duty to monitor the quality of care provided, summary judgment

2 was denied as to Deputy Hammer based on evidence similar to the record in this case. 81 F. Supp.

3 3d at 842-43. Like Deputy Collins in this case, Deputy Hammer in Frary was not able to rouse an

4 inmate who had medical issues after repeatedly yelling and knocking loudly at his door. Deputy

5 Hammer took no action to summon medical assistance or to inform other deputies that the inmate

6 was unresponsive despite repeated knocking and yelling. With respect to section 845.6, the Frary

7 court held that “there is at least a triable issue of fact as to whether [Deputy Hammer] knew or had

8 reason to know that [the inmate] had an immediate medical need.” Id.

9

Here, it is the “reason to know” language that differentiates Plaintiffs’ state law causes of

10 action from the deliberate indifference standard analyzed above. Courts have construed the

11 “knows or has reason to know” element in 845.6 to include constructive notice. See e.g. Lucas v.

12 Cnty. of L.A., 47 Cal. App. 4th 277, 288 (1996) (holding that the “reason to know” in § 845.6 is an

13 “objective standard” and finding that the duty to provide medical care under § 845.6 includes

14 “cases where there is actual or constructive knowledge that the prisoner is in need of immediate

15 medical care.”) Although Plaintiffs have failed to demonstrate a triable issue of material fact with

16 respect to whether Deputy Collins was deliberately indifferent to Mr. Parenti’s serious medical

17 needs, there is a triable issue with respect to whether Deputy Collins had “reason to know” of such

18 needs and could therefore be liable under state law. Summary judgment on the negligence and 19 wrongful death claims would therefore be inappropriate. 16

20

A reasonable jury could conclude from Plaintiffs’ evidence that Mr. Parenti’s failure to

21 respond to being called and shaken was an indication of an immediate medical need, and that

22 Deputy Collins had reason to know of that need, but failed to take reasonable actions to summon

23 medical care. For these reasons, summary judgment on Plaintiffs’ state law causes of action

24 against Deputy Collins is DENIED.

25

26 16 This analysis also serves as an independent basis for the denial of Deputy Collins’ motion for
27 summary judgment on the third cause of action for failure to furnish/summon medical care 28 pursuant to Government Code sections 844.6 and 845.6.
30

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United States District Court Northern District of California

1 IV. ORDER

2

For the foregoing reasons, IT IS HEREBY ORDERED that Deputy Collins’ motion for

3 partial summary judgment is:

4

(1) GRANTED as to Plaintiffs’ first cause of action pursuant to § 1983 for

5

deliberate indifference to Mr. Parenti’s serious medical needs and failure to

6

protect from harm in violation of the Eighth Amendment;

7

(2) GRANTED as to Plaintiffs’ second cause of action pursuant to § 1983 for loss

8

of the parent/child relationship in violation of the Fourteenth Amendment;

9

(3) DENIED as to Plaintiffs’ third, fifth, and sixth causes of action for violations of

10

California state law.

11

12 Dated: April 6, 2018

13

______________________________________

BETH LABSON FREEMAN

14

United States District Judge

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United States District Court Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

8

SAN JOSE DIVISION

9

10 JACOB PARENTI, et al.,

11

Plaintiffs,

12

v.

13 COUNTY OF MONTEREY, et al.,

14

Defendants.

15

16

Case No. 14-cv-05481-BLF
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY; AND REFERRING RULE 26 DISCLOSURE ISSUES TO MAGISTRATE JUDGE SUSAN VAN KEULEN FOR DISPOSITION
[Re: ECF 76]

17

18

This action arises out of the death of thirty-three year old Jacob Parenti, who died in his

19 cell at the Monterey County Jail where he was being held on a probation violation. Plaintiffs are

20 the Estate of Jacob Parenti, Mr. Parenti’s minor son, and Mr. Parenti’s mother. Plaintiffs assert

21 violations of federal and state law by Monterey County, Sheriff Scott Miller, and Deputy Collins

22 (“County Defendants”), as well as California Forensic Medical Group and Dr. Taylor Fithian

23 (“CFMG Defendants”).

24

Plaintiffs assert that the CFMG Defendants have designated an excessive number of

25 retained and non-retained experts who offer duplicative and/or inadmissible opinions, and that the

26 CFMG Defendants’ disclosures of non-retained experts did not comply with Federal Rule of Civil

27 Procedure 26. Plaintiffs also assert that the County’s retained experts offer inadmissible opinions.

28 Plaintiffs ask the Court to (1) limit the CFMG Defendants to one retained expert on the topics of

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United States District Court Northern District of California

1 cause of death and adequacy of medical care, (2) exclude inadmissible opinions of experts retained

2 by the CFMG Defendants and the County Defendants, and (3) prohibit testimony by the CFMG

3 Defendants’s non-retained experts who were not adequately disclosed as required by Rule 26.

4

For the reasons discussed below, Plaintiffs’ motion is GRANTED IN PART AND

5 DENIED IN PART, and the Rule 26 disclosure issues are REFERRED to Magistrate Judge Susan

6 van Keulen for disposition.

7 I. DISCUSSION

8

A. CFMG Defendants’ Retained Experts – Duplication

9

Plaintiffs contend that the CFMG Defendants have designated multiple retained healthcare

10 professionals who will offer duplicative and cumulative opinions regarding the cause of Mr.

11 Parenti’s death and whether the medical services provided to Mr. Parenti met the standard of care.

12 Plaintiffs ask the Court to exercise its discretion to limit CFMG to a single retained expert on these

13 topics. In response, the CFMG Defendants assert that their retained experts come from different

14 backgrounds and thus offer different bases for their opinions, and that no one expert’s opinion

15 overlaps in its entirety with any other opinion.

16

“The court may exclude relevant evidence if its probative value is substantially outweighed

17 by a danger of . . . needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Moreover, the

18 Court has authority to limit the extent of discovery otherwise allowed by federal or local rules if

19 “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some

20 other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P.

21 26(b)(2)(C)(i).

22

The Court finds it impossible to determine based on the current record whether exclusion

23 of any of CFMG’s experts is appropriate under these standards. Trial is not set to commence for

24 eighteen months, and none of the experts has yet been deposed. The Court understands that

25 Plaintiffs brought this motion at least in part for the very purpose of avoiding the costs of those

26 depositions. See Olney Decl. ¶ 4 (“To even depose each of CFMG’s experts at their required rates

27 of up to $650 per hour, Plaintiffs’ costs and fees could easily exceed $30,000.”), ECF 76-1.

28 However, the CFMG Defendants have the right to designate the experts of their choice, and it does 2

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1 not appear – at least on this record – that there is complete overlap with respect to any one expert

2 witness which would justify that expert’s exclusion. There is no suggestion that the disclosure is

3 in bad faith or for any improper purpose. Accordingly, Plaintiffs’ request that the Court limit the

4 CFMG Defendants to a single retained expert on the issues of cause of death and standard of care

5 is DENIED.

6

The Court does, however, direct the parties to meet and confer regarding the order of the

7 depositions so that the retained experts who are most likely to testify are deposed first. Plaintiffs

8 may wish to depose the one or two experts most likely to testify and seek permission to conduct

9 late depositions of the other experts after the close of discovery in the event such depositions

10 become necessary. In the event that experts who appeared most likely to testify are not called at

11 trial, the Court would entertain a motion by Plaintiffs for cost-shifting with respect to the

12 depositions of those experts.

13

B. CFMG Defendants’ Retained Experts – Admissibility

14

Plaintiffs also challenge the admissibility of certain aspects of the opinions offered by two

15 of the CFMG Defendants’ retained experts, Kimberly Pearson, R.N., and Frank Sheridan, M.D.

16

1. Ms. Pearson

17

Ms. Pearson, a Registered Nurse, offers opinions regarding the standard of medical care

18 provided to Mr. Parenti by the CFMG nursing staff and the cause of Mr. Parenti’s death. See

19 Pearson Report, Exh. 2 to Olney Decl., ECF 76-1. Plaintiffs do not dispute Ms. Pearson’s

20 qualifications to offer such opinions. However, Plaintiffs do object to Ms. Pearson’s statements

21 regarding other individuals’ state of mind as well as statements that could be construed as legal

22 opinion. For example, Ms. Pearson opines that the CFMG nursing staff “were not subjectively

23 aware whether or not Mr. Parenti had a serious medical condition beyond signs and symptoms of

24 an upper respiratory infection in January 2014, and they did not consciously disregard his

25 healthcare needs.” Id. at 14. She also opines that “CFMG nursing staff did not attempt to harm

26 Mr. Jacob Parenti.” Id. at 18. Those opinions would be inadmissible at trial. See Siring v.

27 Oregon State Bd. of Higher Educ. ex rel. E. Oregon Univ., 927 F. Supp. 2d 1069, 1077 (D. Or.

28 2013) (“Courts routinely exclude as impermissible expert testimony as to intent, motive, or state 3

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1 of mind.”); Pinal Creek Grp. v. Newmont Mining Corp., 352 F. Supp. 2d 1037, 1043 (D. Ariz.

2 2005) (expert witness may not give an opinion on a question of law).

3

Plaintiff’s motion to exclude is GRANTED with respect to Ms. Pearson’s opinions

4 regarding the state of mind of other individuals or questions of law. Ms. Pearson may, however,

5 testify regarding the conduct of individuals in response to properly stated questions.

6

2. Dr. Sheridan

7

Dr. Sheridan, a pathologist, offers the opinion that the cause of Mr. Parenti’s death was

8 acute heroin toxicity. See Sheridan Report, Exh. 2 to Olney Decl., ECF 76-1. Plaintiffs assert that

9 Dr. Sheridan’s opinion is inadmissible because he failed to perform an adequate differential

10 diagnosis. “Differential diagnosis, or differential etiology, is a standard scientific technique of

11 identifying the cause of a medical problem by eliminating the likely causes until the most probable

12 one is isolated.” Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1057 (9th Cir. 2003) (citation

13 omitted). “The first step in the diagnostic process is to compile a comprehensive list of

14 hypotheses that might explain the set of salient clinical findings under consideration.” Id. “After

15 the expert rules in all of the potential hypotheses that might explain a patient’s symptoms, he or

16 she must then engage in a process of elimination, eliminating hypotheses on the basis of a

17 continuing examination of the evidence so as to reach a conclusion as to the most likely cause of

18 the findings in that particular case.” Id. at 1058. Federal courts generally have found properly

19 conducted differential diagnoses to be admissible under Daubert v. Merrell Dow Pharmaceuticals,

20 Inc., 509 U.S. 579 (1993). Clausen, 339 F.3d at 1057. However, a district court is justified in

21 excluding evidence if the expert fails to explain why an alternative cause was ruled out. Id. at

22 1058.

23

Plaintiffs appear to assume that Dr. Sheridan performed a differential diagnosis and they

24 challenge the adequacy of that diagnosis based on Dr. Sheridan’s failure to rule out as a possible

25 cause of death – or even to address – a finding in the Monterey County toxicology report that Mr.

26 Parenti’s blood sample revealed a level of amitriptyline in the toxic range. That argument is

27 unpersuasive, because Dr. Sheridan’s report does not indicate that he utilized differential diagnosis

28 methodology to reach his conclusion regarding cause of death. See Sheridan Report, Exh. 2 to 4

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1 Olney Decl., ECF 76-1. Dr. Sheridan states that his opinion is based on review of two separate

2 autopsy reports, microscopic slides from both autopsies, toxicology reports, investigative reports,

3 and other materials. Id. He notes that the autopsy report prepared by Monterey County

4 determined the cause of death to be “Acute mixed drug intoxication,” while the autopsy report

5 prepared by Dr. David Posey determined the cause of death as “viral flu syndrome complicated by

6 pneumonia, sepsis, systemic inflammatory response syndrome, septic shock and multi-organ

7 system failure.” Id. at 125. Dr. Sheridan then opines that “[t]he evidence in this case points

8 clearly to death being the result of acute heroin toxicity” and gives his reasons for rejecting the

9 conclusion of sepsis and organ failure presented in Dr. Posey’s autopsy report. Id. Dr. Sheridan

10 does not purport to address “all of the potential hypotheses that might explain a patient’s

11 symptoms” as would be required for a differential diagnosis. See Clausen, 339 F.3d at 1058.

12 Since it does not appear that Dr. Sheridan performed a differential diagnosis at all, Plaintiffs’

13 argument that he did not perform an “adequate” differential diagnosis provides no basis for

14 exclusion.

15

To the extent that Plaintiffs argue that differential diagnosis is the only methodology which

16 may be used to determine cause of death, such argument is unsupported by the case law. “While

17 the Ninth Circuit has stated that ‘a reliable differential diagnosis passes muster under Daubert,’ it

18 has not required experts to use that method when reaching their conclusions.” Carrion v. United

19 States, No. 2:13-cv-00419-RFB-NJK, 2016 WL 4087104, at *5 (D. Nev. July 28, 2016) (quoting

20 Clausen, 339 F.3d at 1058). Thus a district court need not exclude an expert’s opinion on

21 causation simply because the expert did not apply differential diagnosis. See Millenkamp v.

22 Davisco Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009) (Exclusion was not warranted

23 because expert “did not purport to employ differential diagnosis, and Clausen does not preclude

24 the use of all other methods to determine the cause of an illness”); Carrion, 2016 WL 4087104, at

25 *5 (“While differential diagnosis is one universally accepted method for establishing medical

26 causation in certain contexts, a plaintiff can nonetheless present expert medical testimony that

27 does not include this method provided that it meets Rule 702’s threshold reliability requirement.”).

28

The cases cited by Plaintiffs are not to the contrary. In Nelson and Whisnant, the Ninth

5

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1 Circuit held that the district courts had not abused their discretion in excluding expert opinions

2 that expressly relied on differential diagnosis but failed to consider alternate causes. Nelson v.

3 Matrixx Initiatives, Inc., 592 F. App’x 591, 592 (9th Cir. 2015); Whisnant v. United States, 274 F.

4 App’x 536, 537 (9th Cir. 2008). In Morin, the Ninth Circuit held that the district court had not

5 abused its discretion in concluding that the expert’s methodology was not sufficiently reliable

6 where it was unclear whether or how the expert had applied differential diagnosis. Morin v.

7 United States, 244 F. App’x 142, 143 (9th Cir. 2007).

8

Plaintiffs’ motion to exclude Dr. Sheridan’s opinion for lack of an adequate differential

9 diagnosis is DENIED.

10

C. County Defendants’ Retained Experts – Admissibility

11

Plaintiffs also challenge the admissibility of the opinions offered by the County

12 Defendant’s two retained experts, James Sida and Timur Durrani, M.D.

13

1. Mr. Sida

14

Mr. Sida is offered as an expert on jail operations, policies and procedures. Plaintiffs

15 contend that he goes well beyond that subject matter and offers numerous inadmissible legal

16 opinions, medical opinions, and other opinions outside the scope of his expertise. The parties, and

17 in particular the County Defendants, have provided what amounts to a line-by-line analysis of Mr.

18 Sida’s lengthy report. See Sida Report, Exh. 1 to Olney Decl., ECF 76-1. The Court declines to

19 address Mr. Sida’s report at that level of detail at this stage of the proceedings, that is, before Mr.

20 Sida is deposed and a year and a half before trial. However, Plaintiffs’ motion is well-taken with

21 respect to the categories of opinions they identify, as discussed below.

22

a. Legal Opinions

23

“Expert testimony is admissible when it will assist the trier of fact in understanding the

24 evidence or determining a disputed issue of fact.” Pinal Creek Grp., 352 F. Supp. 2d at 1042.

25 However, experts may not opine about how the law should apply to the facts of a particular case.

26 Id. “Testimony which articulates and applies the relevant law . . . circumvents the [fact finder’s]

27 decision-making function by telling it how to decide the case.” Id. (internal quotation marks and

28 citation omitted) (alterations in original). 6

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United States District Court Northern District of California

1

Mr. Sida offers a number of opinions purporting to apply the relevant law to the facts of

2 this case in a manner expressly prohibited by the above standards. For example, he states that “it

3 is clear to me that the Sheriff and County is [sic] not indifferent to crowding and other jail issues,”

4 and that “[i]t is my conclusion that the medical services provided in the Monterey County Jail

5 meet Constitutional requirements from a jail management perspective.” Sida Report, Exh. 1 to

6 Olney Decl. at 24, 29, ECF 76-1. These and all similar opinions would be excluded at trial.

7

Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s legal opinions. The

8 Court notes that Mr. Sida does appear to be qualified to testify regarding jail management,

9 policies, and practices. Therefore, while some of his opinions are inartfully cast as legal opinions

10 in his report, he may be able to testify regarding the underlying subject matter of those opinions in

11 response to proper questioning.

12

b. Medical Opinions

13

“A witness who is qualified as an expert by knowledge, skill, experience, training, or

14 education may testify” if the expert’s “specialized knowledge will help the trier of fact to

15 understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. Mr. Sida is not a

16 medical professional, yet he offers medical opinions regarding the standard of medical care

17 provided by the CFMG Defendants and the cause of Mr. Parenti’s death. Plaintiffs cite numerous

18 examples of such opinions in their motion, only a few which are set forth here by way of example.

19 Mr. Sida states that “I have found that the Monterey County Sheriff’s Department, by way of their

20 jail staff, does provide adequate custodial medical care which meets the standard of medical care

21 in the community.” Sida Report, Exh. 1 to Olney Decl. at 24-25, 29, ECF 76-1. He also opines

22 that “I believe that Mr. Parenti passed very quickly and therefore it would be unreasonable to

23 expect that Deputy Collins could have foreseen the serious consequence of Mr. Parenti’s ingestion

24 of heroin.” Id. at 35. In another example, Mr. Sida “assert[s] that the Monterey County Sheriff’s

25 Department and their medical service contractor, CFMG did, in fact, comply with professional

26 standards established in the State of California, which includes competent and appropriate medical

27 treatment to Mr. Parenti and their timely response in the emergency that preceded Mr. Parenti’s

28 death.” Id. at 53. These and similar medical opinions would be excluded at trial. 7

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1

Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s medical opinions.

2 While Mr. Sida may not offer medical opinion regarding the adequacy of medical services actually

3 provided to Mr. Parenti, he does appear to be qualified to testify regarding the appropriate level of

4 medical services for which a facility such as the Monterey County Jail should contract.

5

c. Opinions Regarding Drug Smuggling

6

Mr. Sida offers opinions regarding the smuggling of drugs into the Monterey County Jail.

7 While he appears to be qualified to opine regarding drug smuggling in jails generally, his report

8 does not disclose an adequate basis for his opinions regarding smuggling in Monterey County Jail

9 in particular. See Lopez v. I-Flow Inc., No. CV 08-1063-PHX-SRB, 2011 WL 1897548, at *10

10 (D. Ariz. Jan. 26, 2011) (“Under Rule 26, an expert’s written report must include an explanation

11 of the basis and reasons for each expressed opinion.”). Accordingly, Mr. Sida’s opinions

12 regarding drug smuggling in the Monterey County Jail would be excluded at trial.

13

Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s opinions regarding

14 drug smuggling at the Monterey County Jail. He may testify regarding drug smuggling in jails

15 generally.

16

d. Opinions Regarding In-Custody Deaths

17

Mr. Sida also offers opinions regarding the statistical significance of the number of in-

18 custody deaths that occurred at the Monterey County Jail. For example, he opines that the three

19 in-custody deaths that occurred in 2014 “are simply events and not trends relating to in custody

20 deaths in the jail.” Sida Report, Exh. 1 to Olney Decl. at 39, ECF 76-1. Mr. Sida’s report does

21 not identify any background, education, or training in the field of statistics. He provides a chart

22 comparing in-custody deaths in Monterey County with such deaths in fourteen other “comparable

23 counties,” but he does not provide an adequate basis for limiting his comparison to the selected

24 counties while excluding dozens of other California counties. Accordingly, Mr. Sida’s opinions

25 regarding the statistical significance of the in-custody deaths at the Monterey County Jail would

26 be excluded at trial.

27

Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s opinions regarding

28 the statistical significance of in-custody deaths at the Monterey County Jail. 8

Case 5:14-cv-05481-BLF Document 87 Filed 05/03/17 Page 9 of 11

United States District Court Northern District of California

1

e. Rebuttal Opinion

2

“[A] rebuttal expert cannot offer evidence that does not contradict or rebut another expert’s

3 disclosure.” Theoharis v. Rongen, No. C13-1345RAJ, 2014 WL 3563386, at *3 (W.D. Wash. July

4 18, 2014). Plaintiffs argue that portions of Mr. Sida’s rebuttal report to one of Plaintiffs’ experts,

5 Jeffrey Schwartz, go beyond mere rebuttal and are intended to buttress opinions offered in Mr.

6 Sida’s own expert report. See Sida Rebuttal Report, Exh. 10 to Olney Decl., ECF 76-2. Plaintiffs’

7 argument is well-taken, and the County Defendants offer no meaningful opposition.

8

Plaintiff’s motion to exclude is GRANTED with respect to Mr. Sida’s rebuttal opinions

9 which do not actually contradict or rebut Mr. Schwartz’s opinion.

10

The Court notes that the County Defendants argue that the rebuttal report of Plaintiffs’

11 expert, Mr. Schwartz, also exceeds the permissible scope of rebuttal evidence. The County

12 Defendants have not moved to exclude testimony of Plaintiffs’ expert, and thus their argument

13 regarding Mr. Schwartz’s rebuttal report is not addressed in this order.

14

2. Dr. Durrani

15

Dr. Durrani offers opinions primarily regarding the services provided by the Monterey

16 County Public Health Department. See Durrani Report, Exh. 1 to Olney Decl., ECF 76-1. For

17 example, he opines that the Department “acted appropriately in assisting the jail by balancing the

18 needs to protect public health while not placing an onerous burden on the jail, the staff and the

19 inmates.” Id. at 78. Dr. Durrani further opines that the Public Health Department “meets the

20 standard of care expected of local health officers when dealing with disease outbreaks in

21 correctional facilities. Id. at 79. Plaintiffs contend that Dr. Durrani is not qualified to give these

22 and similar opinions because he does not have any background in the correctional field. Plaintiffs

23 also contend that Dr. Durrani does not actually offer any original analysis but merely parrots the

24 deposition testimony of Ms. Kristy Michie.

25

The Court concludes that Dr. Durrani may testify on topics within his area of expertise,

26 such as the functioning of the Monterey County Public Health Department and the standard of

27 care for a county public health department. However, the Court is troubled by Dr. Durrani’s

28 opinions regarding a correctional facility’s ability to implement commonly applied public health 9

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1 techniques for identifying the nature of a contagious pathogen and mitigating its transmission. It

2 appears that Dr. Durrani has relied on Ms. Michie’s testimony regarding the correctional facility’s

3 capabilities. To the extent that Dr. Durrani’s opinions are based solely on Ms. Michie’s testimony,

4 they will be excluded at trial. See Dep’t of Toxic Substances Control v. Technichem, Inc., No. 12-

5 CV-05845-VC, 2016 WL 1029463, at *1 (N.D. Cal. Mar. 15, 2016) (excluding expert opinion in

6 part because expert “often does no more than regurgitate information given to him by other

7 sources”).

8

At the hearing counsel for the County Defendants stated that Dr. Durrani’s opinions are

9 offered only to counter any claim of liability based on deficiencies by the Monterey County Public

10 Health Department, not to bolster the County’s position regarding the jail’s response. Insofar as it

11 is not clear whether this issue will be presented at trial, and the County Defendants’ clarification

12 of Dr. Durrani’s potential testimony, the Court is not prepared to exclude Dr. Durrani entirely at

13 this time.

14

Accordingly, Plaintiffs’ motion to exclude Dr. Durrani is GRANTED to the extent that his

15 opinions are based solely on Ms. Michie’s testimony and otherwise is DENIED.

16

D. CFMG Defendants’ Non-Retained Experts – Rule 26 Disclosure Issues

17

Finally, Plaintiffs argue that the CFMG Defendants’ non-retained experts should be

18 stricken because the CFMG Defendants’ disclosures did not satisfy Federal Rule of Civil

19 Procedure 26. The Rule 26 disclosure issues raised by Plaintiff are REFERRED to Magistrate

20 Judge Susan van Keulen for disposition. Judge van Keulen’s chambers will contact counsel if

21 Judge van Keulen wishes supplemental briefing or oral argument on these issues.

22 II. ORDER

23

IT IS HEREBY ORDERED THAT:

24

(1) Plaintiffs’ request that the Court limit the CFMG Defendants to a single retained

25

expert on the issues of cause of death and standard of care is DENIED;

26

(2) Plaintiff’s motion to exclude Ms. Pearson’s opinions regarding the state of mind of

27

other individuals and questions of law is GRANTED;

28

(3) Plaintiffs’ motion to exclude Dr. Sheridan’s opinions is DENIED;

10

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1

(4) Plaintiffs’ motion to exclude Mr. Sida’s opinions is GRANTED IN PART as to the

2

categories of opinions identified in this order and otherwise is DENIED;

3

(5) Plaintiffs’ motion to exclude Dr. Durrani’s opinions is GRANTED IN PART as to

4

opinions based solely on Ms. Michie’s testimony and otherwise is DENIED; and

5

(6) Plaintiffs’ motion to exclude the CFMG Defendants’ non-retained experts for

6

failure to comply with Federal Rule of Civil Procedure 26 is REFERRED to

7

Magistrate Judge Susan van Keulen for disposition.

8

9 Dated: May 3, 2017

10

______________________________________

BETH LABSON FREEMAN

11

United States District Judge

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1

2

3

4

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

6

7 JACOB PARENTI, et al.,

8

Plaintiffs,

9

v.

10 COUNTY OF MONTEREY, et al.,

11

Defendants.

Case No.14-cv-05481-BLF (SVK)
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION TO EXCLUDE NON-RETAINED EXPERTS
Re: Dkt. No. 76

12

Plaintiffs, the Estate of Jacob Parenti, Mr. Parenti’s minor son, and Mr. Parenti’s mother

13 (“Plaintiffs”) assert violations of federal and state law by Monterey County, Sheriff Scott Miller,

14 and Deputy Collins (“County Defendants”), as well as California Forensic Medical Group and Dr.

15 Taylor Fithian (“CFMG Defendants”). On March 30, 2017, Plaintiffs filed a motion to exclude

16 expert testimony of County Defendants and CFMG Defendants in which Plaintiffs asked the Court

17 to (1) limit the CFMG Defendants to one retained expert on the topics of cause of death and

18 adequacy of medical care, (2) exclude inadmissible opinions of experts retained by the CFMG

19 Defendants and the County Defendants, and (3) prohibit testimony by CFMG Defendants’ non-

20 retained experts who were not adequately disclosed as required by Rule 26. ECF 76.

21

On May 3, 2017, the District Court granted in part and denied in part Plaintiffs’ motion as

22 it related to retained experts of both County and CFMG Defendants. The Court referred the issue

23 of whether two of CFMG Defendants’ non-retained experts, Julie Kelly, PA-C and Delmar

24 Greenleaf, M.D., should be excluded because of CFMG Defendants’ failure to comply with 25 Rule 261 disclosure requirements for non-retained experts. ECF 87. Having reviewed the motion

26 and for the reasons discussed below, the undersigned recommends that the District Court grant

27

28 1 All references to Rules are to the Federal Rules of Civil Procedure unless noted otherwise.

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1 Plaintiffs’ motion in part and limit the testimony of Kelly and Greenleaf as set forth below.

2

I. RELEVANT FACTUAL BACKGROUND

3

On September 2, 2016, the District Court entered a Case Scheduling Order setting an

4 expert disclosure deadline of October 22, 2016, a rebuttal expert disclosure deadline of November

5 22, 2016, and an expert discovery cutoff of January 17, 2017. ECF 61. On October 21, 2016,

6 CFMG Defendants served their expert witness disclosures pursuant to Rule 26.

7

CFMG Defendants disclosed five retained experts and twelve non-retained experts. Their

8 listing of non-retained experts identified only each expert’s name, degree, and address. ECF 76-1

9 at 90-94.

10

On November 17, 2016, the Court continued the expert disclosure deadline from

11 November 22, 2016 to January 18, 2017 and continued the last day for expert depositions from

12 January 17, 2017 to August 17, 2017. ECF 64.

13

Plaintiffs and CFMG Defendants met and conferred regarding CFMG Defendants’ expert

14 disclosure. Plaintiffs identified, among other objections, that CFMG Defendants’ list of non-

15 retained experts failed to provide the information required under Rule 26(a)(2)(C), including a

16 summary of facts and opinions. On January 11, 2017, CFMG Defendants served an amended

17 disclosure providing additional, albeit limited, information regarding the expected testimony of the

18 twelve non-retained witnesses, including Kelly and Greenleaf. ECF 76-2 at 37-40. CFMG

19 Defendants disclosed Kelly and Greenleaf as follows:

20

Julie Kelly, PA-C, c/o CDCR Avenal State Prison, P.S. Box

39, Avenal, CA 93204; (559) 386-0587. Ms. Kelly will testify

21

regarding authentication, interpretation and other issues pertaining

to her treatment records and treatment related to Mr. Parenti in

22

connection with his health care at Avenal State Prison.

23

Delmar Greenleaf, M.D., c/o CDCR Avenal State Prison,

P.O. Box 39, Avenal, CA 93204; (559) 386-0587. Dr. Greenleaf

24

will testify regarding authentication, interpretation and other issues

pertaining to his treatment records and treatment related to Mr.

25

Parenti in connection with his health care at Avenal State Prison.

26

27

Plaintiffs, in their motion to exclude filed March 30, 2017, argue that Kelly and Greenleaf

28 should be stricken because the CFMG Defendants’ disclosures do not satisfy Rule 26. ECF 76 at 2

Case 5:14-cv-05481-BLF Document 88 Filed 05/10/17 Page 3 of 5

United States District Court Northern District of California

1 23-25. In opposition to Plaintiff’s motion, CFMG Defendants defend only their retained experts

2 and do not offer a response to Plaintiffs’ arguments regarding the insufficient Rule 26 disclosures 3 of Kelly and Greenleaf. See generally ECF 80.2

4

II. LEGAL STANDARD

5

A party must disclose to other parties the identity of any witness it may use at trial to

6 present expert testimony. Fed. R. Civ. P. 26(a)(2)(A). “Unless otherwise stipulated or ordered by

7 the court, this disclosure must be accompanied by a written report . . . if the witness is one retained

8 or specially employed to provide expert testimony . . .” Fed. R. Civ. P. 26(a)(2)(B). However, in

9 cases where a full report is not required under Rule 26(a)(2)(B), a party is required to disclose

10

the subject matter on which the witness is expected to present

evidence . . . [and] a summary of the facts and opinions to which the

11

witness is expected to testify. Fed. R. Civ. P. 26(a)(2)(C).

12 The Advisory Committee Notes explain that Rule 26(a)(2)(C) mandates “summary disclosures of

13 the opinions to be offered by expert witnesses who are not required to provide reports under Rule

14 26(a)(2)(B) and of the facts supporting those opinions.” Fed. R. Civ. P. 26 advisory committee’s

15 note to 2010 amendment (noting that physicians or other health care professionals are common

16 examples of witnesses exempt from Rule 26(a)(2)(B)’s written report requirement); see Goodman

17 v. Staples the Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011) (treating physicians are

18 exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that their opinions were

19 formed during the course of treatment).

20

If a party fails to disclose the facts and opinions to which non-retained experts would

21 testify, that party has the burden to show “the failure was substantially justified or is harmless.”

22 Fed. R. Civ. P. 37(c); Goodman, 644 F.3d at 826. In considering whether to exclude testimony,

23 Rule 37 requires a court to consider the harm, if any, caused by the failure to comply, and provides

24 alternative, lesser sanctions “instead of” exclusion. Fed. R. Civ. P. 37(c)(1); Pineda v. City & Cty.

25

26

2 The Court notes that CFMG Defendants, in the Declaration of Peter G. Bertling, suggest that their disclosures are sufficient as compared to Plaintiffs’ disclosures. ECF 80-1 at 7. This

27

argument is unpersuasive and improperly raised in a declaration in violation of Civil Local Rule 75(b). Civ. L. R. 7-5(b) (“An affidavit or declaration may contain only facts, must conform as

28

much as possible to the requirements of Fed. R. Civ. P. 56(e), and must avoid conclusions and argument.”).

3

Case 5:14-cv-05481-BLF Document 88 Filed 05/10/17 Page 4 of 5

United States District Court Northern District of California

1 of San Francisco, 280 F.R.D. 517, 520 (N.D. Cal. 2012) (“Limiting the automatic sanction to

2 violations ‘without substantial justification’ coupled with the exception for violations that are

3 ‘harmless,’ is needed to avoid unduly harsh penalties in a variety of situations.”).

4

III. ANALYSIS

5

The Court finds that CFMG Defendants’ supplemental disclosures of Kelly and Greenleaf

6 do not comply with Rule 26(a)(2)(C) because the disclosures, even after supplementation, do not

7 contain a summary of the facts and opinions to which Kelly and Greenleaf will testify. The

8 disclosure required for non-retained experts under Rule 26(a)(2)(C) is “considerably less extensive

9 than the report required by Rule 26(a)(2)(B).” Fed. R. Civ. P. 26 advisory committee’s note to

10 2010 amendment. However, the high level summary provided by CFMG Defendants provides

11 only the most modest description imaginable (e.g., “authentication” and “interpretation”) along

12 with a catchall category (“other issues”) that does nothing to narrow the universe on which Kelly

13 and Greenleaf may testify. These descriptions do not, by themselves, satisfy Rule 26(a)(2)(C).

14

In its opposition to Plaintiffs’ original motion, CFMG did not address Plaintiffs’ argument

15 regarding non-retained experts, much less offer any argument as to why its lack of compliance

16 with Rule 26 is “substantially justified” or “harmless,” which could excuse it from the sanction of

17 exclusion. Fed. R. Civ. P. 37(c)(1). The Court cannot speculate as to whether the failure to

18 properly disclose Kelly and Greenleaf was substantially justified, but the failure to properly

19 disclose is not harmless, particularly in light of the number of non-retained experts disclosed by

20 CFMG Defendants. Absent the disclosure required under Rule 26(a)(2)(C), Plaintiffs cannot

21 make an informed decision on whether they should depose Kelly and Greenleaf. If Plaintiffs

22 choose to depose Kelly and Greenleaf, their ability to prepare for and conduct a meaningful

23 deposition is undermined by not knowing in advance Kelly’s and Greenleaf’s opinions and the

24 main facts on which those opinions are based.

25

Although CFMG’s failure to timely comply with Rule 26(a)(2)(C) is neither substantially

26 justified nor harmless, and Plaintiffs’ objections have merit, the Court nonetheless will not impose

27 the harsh sanction of excluding Kelly and Greenleaf entirely from testifying at trial. Given the

28 recent order by this Court and the fact that expert depositions are just getting underway, the Court

4

Case 5:14-cv-05481-BLF Document 88 Filed 05/10/17 Page 5 of 5

United States District Court Northern District of California

1 limits Kelly’s and Greenleaf’s respective testimony as set forth below.

2

Kelly: Kelly may testify only regarding the authentication and interpretation of her

3 relevant treatment records of and relevant communications with decedent, Jacob Parenti, or any

4 other Plaintiff.

5

Greenleaf: Greenleaf may testify only regarding the authentication and interpretation of

6 his relevant treatment records of and relevant communications with decedent, Jacob Parenti, or

7 any other Plaintiff.

8

Neither Kelly nor Greenleaf may offer testimony regarding any “other issues pertaining to

9 . . . treatment records and treatment related to Mr. Parenti in connection with his health care at

10 Avenal State Prison.”

11

IV. CONCLUSION

12

The undersigned RECOMMENDS that the District Court, in the exercise of its discretion,

13 enter an order limiting the expert testimony of Julie Kelly, PA-C and Delmar Greenleaf, M.D. as

14 directed above.

15

16

SO RECOMMENDED.

17 Dated: May 10, 2017

18

19

20

SUSAN VAN KEULEN United States Magistrate Judge

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28 5

 
 Case 5:14-cv-05481-BLF Document 92 Filed 06/06/17 Page 1 of 2

United States District Court Northern District of California

1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

SAN JOSE DIVISION

6

7 JACOB PARENTI, et al.,

8

Plaintiffs,

9

v.

10 COUNTY OF MONTEREY, et al.,

11

Defendants.

12

Case No. 14-cv-05481-BLF
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION TO EXCLUDE NON-RETAINED EXPERTS
[Re: ECF 76, 88]

13

14

Before the Court is Magistrate Judge Susan van Keulen’s Report and Recommendation to

15 Grant in Part and Deny in Part Plaintiffs’ Motion to Exclude Non-Retained Experts. R&R, ECF

16 88. No objection to the Report and Recommendation has been filed and the deadline to object has

17 expired. See Fed. R. Civ. P. 72(b)(2) (deadline for objection is fourteen days after being served

18 with report and recommendation).

19

The Report and Recommendation addresses Plaintiffs’ motion to exclude two of the non-

20 retained experts disclosed by Defendants California Forensic Medical Group and Dr. Taylor

21 Fithian (“CFMG Defendants”), which was made as part of a larger motion to exclude heard by this

22 Court on April 27, 2017. See Pl.’s Motion to Exclude, ECF 76. The Court ruled on most aspects

23 of Plaintiffs’ motion in an order issued May 3, 2017, but it referred to Judge van Keulen the issue

24 of whether non-retained experts Julie Kelly and Dr. Delmar Greenleaf should be excluded based

25 on the CFMG Defendants’ failure to comply with the disclosure requirements of Federal Rule of

26 Civil Procedure 26. See Order Granting in Part and Denying in Part Plaintiffs’ Motion to Exclude,

27 ECF 87. Judge van Keulen recommends that the Court deny the motion to exclude Kelly and

28 Greenleaf altogether but limit their trial testimony significantly.

Case 5:14-cv-05481-BLF Document 92 Filed 06/06/17 Page 2 of 2

United States District Court Northern District of California

1

The Court finds the Report and Recommendation to be correct, well-reasoned, and

2 thorough. Specifically, the Court agrees with Judge van Keulen that the CFMG Defendants’

3 disclosures regarding Kelly and Greenleaf do not comply with Rule 26(a)(2)(C) and that the

4 appropriate remedy is to limit the witnesses’ testimony to the disclosures which were provided.

5 See R&R at 4-5, ECF 88.

6

Accordingly, the Court:

7

(1) ADOPTS the Report and Recommendation in its entirety; and

8

(2) LIMITS the trial testimony of Kelly and Greenleaf as set forth in the Report and

9

Recommendation.

10

11

IT IS SO ORDERED.

12

13 Dated: June 6, 2017

14

______________________________________

BETH LABSON FREEMAN

15

United States District Judge

16

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25

26

27

28 2

 
 1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4

5

JACOB PARENTI, et al.,

6

Plaintiffs,

7

v.

8

COUNTY OF MONTEREY, et al.,

9

Defendants.

Case No. 14-cv-05481-BLF
ORDER APPROVING SETTLEMENT OF MINOR’S CLAIMS [Re: ECF 136]

10

11

Plaintiff D.P-O, a minor, by and through his guardian Mathew Oberholtz, individually and

United States District Court Northern District of California

12 on behalf of the Estate of Jacob Parenti, together with Plaintiff Susan Parenti petition the Court for

13 an order approving the parties’ proposed settlement, and of the settlement on behalf of a minor

14 included therein. Mot., ECF 136. For the reasons stated below, the Court GRANTS the motion.

15

I. BACKGROUND1

16

Minor D.P-O, by and through his legal guardian Matthew Oberholtz, as an individual and

17 on behalf of the Estate of Jacob Parenti, along with his grandmother Susan Parenti (collectively,

18 “Plaintiffs”), filed this action against Defendants County of Monterey (“County”), Scott Miller,

19 Officer Collins, California Forensic Medical Group, and Taylor Fithian, M.D., alleging six causes

20 of action: (1) deliberate indifference to serious medical needs and failure to protect from harm in

21 violation of the Eighth and Fourteenth Amendments, under 42 U.S.C. § 1983; (2) deprivation of

22 substantive due process in violation of the First and Fourteenth Amendments, under 42 U.S.C. §

23 1983; (3) failure to furnish or summon medical care, under California state law; (4) negligent

24 supervision, training, hiring, and retention, under California state law; (5) negligence, under

25 California state law; and (6) wrongful death, under California Civil Procedure Code § 377.60. See

26 generally Compl., ECF 1.

27

28

1 This section is based on allegations made in the Complaint. The Court accepts these allegations as true for the purposes of ruling on this motion.

1

Susan Parenti is the mother of Jacob Parenti (“Mr. Parenti”). Id. ¶ 10. Mr. Parenti lived

2 with his mother in his youth. Compl. ¶ 30. When he was older, he regularly helped his mother, by

3 doing household chores and acting as her caretaker. Compl. ¶ 38. D.P-O is the seven-year-old2

4 minor son and sole heir of Mr. Parenti. Compl. ¶ 8. After D.P-O was born in 2007, he lived with

5 his birth mother, but he had an ongoing relationship with Mr. Parenti, who made child support

6 payments, visited regularly, and brought D.P-O to spend time with Mr. Parenti’s family. Compl. ¶

7 32. In 2013, Mr. Parenti was awarded primary custody of D.P-O and brought D.P-O to live with

8 him in Monterey, California. Compl. ¶¶ 34–35. When Mr. Parenti was incarcerated in February

9 2013 for three months, his cousin, Matthew Oberholtz cared for D.P-O. Compl. ¶ 36. Mr. Parenti

10 began a separate period of incarceration in August 1, 2013 at Monterey County Jail (“Jail”),

11 during which he kept in regular contact with his son, his mother, and his other family members.

United States District Court Northern District of California

12 Compl. ¶¶ 40–42.

13

Throughout the first few months of his incarceration, Mr. Parenti told his mother that the

14 Jail was not providing him with his prescribed blood pressure and psychotropic medications.

15 Compl. ¶ 44. His mother complained to the Jail many times and even brought his medications to

16 the Jail and gave them to the nurse to ensure that Mr. Parenti received them. Compl. ¶ 44. On or

17 around both January 10 and January 12, 2014, Mr. Parenti reported to the staff that he thought he

18 had the flu. Compl. ¶¶ 45, 47. He was not called for sick call. Compl. ¶ 48. Around January 10,

19 Mr. Parenti began to cough up blood, and this continued throughout the next few days. Compl. ¶¶

20 46, 48.

21

On January 15, at breakfast around 3:45 a.m., Mr. Parenti appeared awake and alert.

22 Compl. ¶ 49. At 9:45 a.m., Defendant Collins came to collect several inmates for a nurse visit, but

23 Mr. Parenti, who was lying on his bunk, could not respond when Defendant Collins called his

24 name several times. Compl. ¶¶ 50–51. Defendant Collins went to Mr. Parenti’s bunk, said his

25 name a few more times, and repeatedly tapped and shook him, but Mr. Parenti was unresponsive

26 and had labored breathing. Compl. ¶ 52. Defendant Collins left the cell without summoning help.

27

28 2 The Complaint was filed in 2014. D.P-O is now approximately 11 years old. 2

1 Compl. ¶ 53.

2

An hour later, at approximately 10:45 a.m., Mr. Parenti’s cellmates noticed he had stopped

3 breathing and his face had a bluish tint. Compl. ¶ 55. One inmate started CPR while the others

4 attempted to call the deputies. Compl. ¶ 55. Deputies arrived first but did not attempt CPR; fire

5 personnel and nurses then arrived and unsuccessfully attempted to resuscitate Mr. Parenti. Compl.

6 ¶ 56. At 11:05 a.m., Mr. Parenti was pronounced dead. Compl. ¶ 57. Susan Parenti learned of

7 her son’s death from an inmate that night. Compl. ¶ 58.

8

The County’s autopsy concluded that Mr. Parenti had died due to drug intoxication, but an

9 independent autopsy commissioned by Susan Parenti concluded he had died from viral influenza

10 syndrome complicated by pneumonia. Compl. ¶ 63. At the time of Mr. Parenti’s death,

11 Defendants knew that Monterey County was experiencing a high rate of influenza. Compl. ¶ 64.

United States District Court Northern District of California

12 Another inmate died from influenza on January 20, 2014, after being taken to the hospital on

13 January 12, 2014. Compl. ¶ 65. Plaintiffs allege that Defendants failed to provide appropriate

14 medical care to Mr. Parenti, and this his death has caused substantial damage to Plaintiffs,

15 including emotional distress and loss of physical and financial support. Compl. ¶¶ 66–73.

16 Plaintiffs also allege that the Jail has had a history of providing inadequate medical care to its

17 inmates since at least 2007, and that Defendants knew of these failings. Compl. ¶¶ 19–26.

18

On December 15, 2014, Plaintiffs initiated this lawsuit against Defendants. ECF 1.

19 Defendants California Forensic Medical Group and Dr. Taylor Fithian were dismissed on October

20 5, 2017. ECF 99. After substantial discovery, resolution of a summary judgment motion, and

21 motions in limine briefing, the parties reached an agreement resolving the case. ECF 131, 133.

22 II. LEGAL STANDARD

23

“District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), to

24 safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638 F.3d 1177, 1181 25 (9th Cir. 2011). “Rule 17(c) provides, in relevant part, that a district court ‘must appoint a 26 guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person 27 who is unrepresented in an action.’” Id. (quoting Fed. R. Civ. P. 17(c)). “In the context of 28 proposed settlements in suits involving minor plaintiffs, this special duty requires a district court
3

1 to ‘conduct its own inquiry to determine whether the settlement serves the best interests of the

2 minor.’” Id. (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978)).

3

In cases involving the settlement of a minor’s federal claims, a district court must consider

United States District Court Northern District of California

4 whether the proposed settlement is fair and reasonable as to each minor plaintiff. Id. at 1182.

5 “[T]he district court should evaluate the fairness of each minor plaintiff’s net recovery without

6 regard to the proportion of the total settlement value designated for adult co-plaintiffs or plaintiffs’

7 counsel—whose interests the district court has no special duty to safeguard.” Id.

8

While the Robidoux Court expressly limited its holding to settlement of a minor’s federal

9 claims, “district courts have found the Robidoux rule reasonable in the context of state law claims

10 and have applied the rule to evaluate the propriety of a settlement of a minor’s state law claims as

11 well.” Frary v. Cnty. of Marin, Case No. 12-cv-03928, 2015 WL 3776402, at *1 (N.D. Cal. June

12 16, 2015); see also Mitchell v. Riverstone Residential Grp., No. S-11-2202, 2013 WL 1680641, at

13 *1 (E.D. Cal. Apr. 17, 2013) (collecting cases). California law, which governs the state law

14 causes of action, also requires that a settlement for a minor be approved by the court. See Cal.

15 Prob. Code § 3601; Cal. Fam. Code § 6602.

16 III. DISCUSSION

17

Defendants settled this case for $365,000. Plaintiffs’ counsel seek fees of 40% of Susan

18 Parenti’s recovery and 25% of D.P-O’s recovery. See Mot. at 3–4. Plaintiffs’ counsel also is due

19 costs of $85,802.98, to be taken from Plaintiffs’ recoveries in proportion to each Plaintiff’s

20 individual recovery. Susan Parenti is to receive 40% of the total recovery ($146,000), and D.P-O

21 is to receive 60% of the total recovery ($219,000). After subtracting fees ($58,400) and her

22 proportion of the costs ($34,321.19), Susan Parenti will receive $53,278.81. After subtracting fees

23 ($54,750) and his proportion of the costs ($51,481.79), D.P-O will receive $112,768.21. D.P-O’s

24 recovery will be deposited into a custodial Uniform Gifts to Minors Act account in his name.

25 Oberholtz Decl. ¶ 4, ECF 139. Mr. Oberholtz created this account in February 2018 and has

26 already placed approximately $100,000 in the account for D.P-O. Id. D.P-O is the owner of the

27 account but cannot access it until he reaches the age of 18. Id.

28

The compromise is consistent with other cases in California. See E.R. v. Cty. of Stanislaus,

4

1 2016 WL 3354334, at *3 (E.D. Cal. June 16, 2016), report and recommendation adopted, 2016

2 WL 4011718 (E.D. Cal. July 26, 2016) (minor plaintiffs each received $19,000 of $150,000 total

3 settlement where father committed suicide in prison after jail failed to hold him in a safety cell for

4 the doctor-recommended period of time); E.S. by & through Gonzalez v. City of Visalia, No. 1:13-

5 CV-1697-LJO-BAM, 2015 WL 6956837, at *3 (E.D. Cal. Nov. 3, 2015), report and

6 recommendation adopted, 2015 WL 13215675 (E.D. Cal. Nov. 20, 2015) (minor paid $130,444.83

7 of $600,000 total in action involving the shooting and killing of minor’s father); Armstrong v.

8 Dossey, 2013 WL 4676541 (E.D. Cal. Aug. 30, 2013) (minors received $22,500 and $11,000,

9 respectively, of $82,500 total for defendants’ failure to provide medical care); Doe ex rel. Scott v.

10 Gill, 2012 WL 1939612 (N.D. Cal. May 29, 2012) (minor received $7,188.85 of $50,000 in case

11 involving police’s allegedly unlawful killing of mother during arrest).

United States District Court Northern District of California

12

The Court also finds the request for attorney’s fees totaling approximately 33% of the

13 recovery (including 25% from D P-O.’s recovery and 40% from Susan Parenti’s recovery) is

14 reasonable. The case was on the eve of trial and involved much diligent effort by Plaintiffs’

15 attorneys, and the parties engaged in extensive negotiations with a magistrate judge to reach

16 settlement. See generally Mot.

17

In light of the facts of the case, the minor’s claims against Defendants, and the settlement

18 of disputes regarding prisoner-rights litigation, the Court finds that the net amount to be

19 distributed is fair and reasonable. The terms achieve the goal that D.P-O and his guardian had for

20 bringing the lawsuit. Accordingly, the Court APPROVES the settlement of D.P.-O’s claims.

21 IV. ORDER

22

Based on the foregoing, it is hereby ORDERED that:

23

1. The Court APPROVES the settlement on behalf of the minor as set forth herein.

24

2. D.P-O’s guardian, Matthew Oberholtz, is authorized and directed to execute any

25 and all documents reasonably necessary to carry out the terms of the settlement.

26

3. D.P-O’s guardian, Matthew Oberholtz, is authorized and directed to place D.P-O’s

27 net proceeds into his existing Uniform Gift to Minors Act account. Neither D.P-O nor his

28 guardian or other representative may withdraw any funds from this account until D.P-O is 18 5

1 years old without prior Court approval.

2

4. All future dates and deadlines in this case are VACATED.

3

5. The parties shall file, a stipulation regarding dismissal of this case or a written

4 status report on or before April 30, 2019.

5

6

IT IS SO ORDERED.

7

8 Dated: March 18, 2019

9

______________________________________

BETH LABSON FREEMAN

10

United States District Judge

11

United States District Court Northern District of California

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28 6

 
 Create an Alert for This Case on RECAP ADRMOP,CLOSED,CONSENT,REFSET-NC,RELATE
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:14-cv-05481-BLF

Parenti et al v. County Of Monterey et al Assigned to: Judge Beth Labson Freeman Referred to: Magistrate Judge Susan van Keulen
Magistrate Judge Nathanael M. Cousins (Settlement) Relate Case Cases: 5:13-cv-02354-BLF
5:16-cv-00945-BLF Cause: 42:1983 Civil Rights Act

Date Filed: 12/16/2014 Date Terminated: 04/29/2019 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Jacob Parenti deceased, by and through Matthew Oberholtz Estate of Estate of Jacob Parenti

represented by Brian D Olney Hadsell Stormer and Renick LLP 128 N. Fair Oaks Ave. Pasadena, CA 91103 626-585-9600 Email: bolney@hadsellstormer.com ATTORNEY TO BE NOTICED

Joshua Piovia-Scott Hadsell Stormer & Renick LLP 4300 Horton Street, #15 Emeryville, CA 94608 415-685-3591 Fax: 626-577-7079 Email: jps@hadsellstormer.com ATTORNEY TO BE NOTICED

Lori Rifkin Rifkin Law Office 2855 Telegraph Ave Suite 517 Berkeley, CA 94705 5104144132 Email: lrifkin@rifkinlawoffice.com ATTORNEY TO BE NOTICED

Plaintiff D.P-O. a minor Guardian ad litem Matthew Oberholtz
Plaintiff Susan Parenti

Mohammad K Tajsar Hadsell Stormer Richardson and Renick 128 N. Fair Oaks Avenue Pasadena, CA 91103 626-585-9600 Email: mtajsar@hadsellstormer.com TERMINATED: 10/19/2017 ATTORNEY TO BE NOTICED
Dan Lewis Stormer Hadsell Stormer & Renick LLP 128 N. Fair Oaks Avenue Pasadena, CA 91103 626-585-9600 Fax: 626-577-7079 Email: dstormer@hadsellstormer.com ATTORNEY TO BE NOTICED
represented by Brian D Olney (See above for address) ATTORNEY TO BE NOTICED
Joshua Piovia-Scott (See above for address) ATTORNEY TO BE NOTICED
Lori Rifkin (See above for address) ATTORNEY TO BE NOTICED
Mohammad K Tajsar (See above for address) TERMINATED: 10/19/2017 ATTORNEY TO BE NOTICED
Dan Lewis Stormer (See above for address) ATTORNEY TO BE NOTICED
represented by Brian D Olney (See above for address)

V. Defendant County of Monterey

ATTORNEY TO BE NOTICED
Joshua Piovia-Scott (See above for address) ATTORNEY TO BE NOTICED
Lori Rifkin (See above for address) ATTORNEY TO BE NOTICED
Mohammad K Tajsar (See above for address) TERMINATED: 10/19/2017 ATTORNEY TO BE NOTICED
Dan Lewis Stormer (See above for address) ATTORNEY TO BE NOTICED
represented by Susan K. Blitch County Counsel Office of the County Counsel County of Monterey 168 West Alisal Street, 3rd Floor Salinas, CA 93901-2680 831-755-5045 Fax: 831-755-5283 Email: blitchsk@co.monterey.ca.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elias Ethan Salameh Monterey County Counsel 168 West Alisal Street Third Floor Salinas, CA 93901 831-755-5045 Fax: 831-755-5283 Email: salamehe@co.monterey.ca.us ATTORNEY TO BE NOTICED
Irven L. Grant

Defendant
Scott Miller Sheriff of Monterey County in his official capacity

Monterey County Office of County Counsel 168 W. Alisal Street, Third Floor Salinas, CA 93901-2680 831-755-5045 Fax: (831) 755-5283 Email: granti@co.monterey.ca.us ATTORNEY TO BE NOTICED
Janet L. Holmes County Counsel's Office County of Monterey 168 West Alisal Street, 3rd Floor Salinas, CA 93901 (831) 755-5045 Fax: (831) 755-5283 Email: HolmesJL@co.monterey.ca.us ATTORNEY TO BE NOTICED
Michael Rudolph Philippi County of Monterey County Counsel 168 West Alisal Street 3rd Floor Salinas, CA 93901 (831) 755-5045 Email: Michael_Philippi@msn.com ATTORNEY TO BE NOTICED
represented by Susan K. Blitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elias Ethan Salameh (See above for address) ATTORNEY TO BE NOTICED
Irven L. Grant (See above for address) ATTORNEY TO BE NOTICED
Janet L. Holmes (See above for address)

Defendant Officer Collins in his individual capacity
Defendant California Forensic Medical Group TERMINATED: 10/05/2017

ATTORNEY TO BE NOTICED
Michael Rudolph Philippi (See above for address) ATTORNEY TO BE NOTICED
represented by Susan K. Blitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elias Ethan Salameh (See above for address) ATTORNEY TO BE NOTICED
Irven L. Grant (See above for address) ATTORNEY TO BE NOTICED
Janet L. Holmes (See above for address) ATTORNEY TO BE NOTICED
Michael Rudolph Philippi (See above for address) ATTORNEY TO BE NOTICED
represented by Peter G. Bertling Bertling Law Group, Inc. 21 East Canon Perdido Street, Suite 204B Santa Barbara, CA 93101-8215 (805) 879-7558 Fax: 805-869-1597 Email: peter@bertlinglawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jemma A. Parker Saunders Bertling Law Group 21 East Canon Perdido Street Suite 204B Santa Barbara, CA 93101

Defendant
Taylor Fithian, M.D. TERMINATED: 10/05/2017

805-879-7558 Fax: 805-962-0722 Email: jemma@bertlinglawgroup.com ATTORNEY TO BE NOTICED
represented by Peter G. Bertling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jemma A. Parker Saunders (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/16/2014
12/16/2014 12/16/2014 12/16/2014

# Docket Text

COMPLAINT for Damages against All Defendants ( Filing fee $ 400, receipt

1

number 0971-9146615.). Filed byD.P-O., Jacob Parenti, Susan Parenti.

(Attachments: # 1 Exhibit 1 (Part 1), # 2 Exhibit 1 (Part 2), # 3 Exhibit 2,

# 4 Exhibit 3, # 5 Exhibit 4, # 6 Civil Cover Sheet)(Stormer, Dan) (Filed on

12/16/2014) (Entered: 12/16/2014)

2 Proposed Summons. (Stormer, Dan) (Filed on 12/16/2014) (Entered: 12/16/2014)

3 Certificate of Interested Entities by D.P-O., Jacob Parenti, Susan Parenti re 1

Complaint, (Stormer, Dan) (Filed on 12/16/2014) (Entered: 12/16/2014) 4 Case assigned to Magistrate Judge Paul Singh Grewal.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (kcS, COURT STAFF) (Filed on 12/16/2014) (Entered: 12/16/2014)

12/16/2014 12/16/2014 12/16/2014 12/16/2014 12/30/2014 12/30/2014 12/31/2014 01/08/2015
02/05/2015 02/06/2015 02/06/2015

5 NOTICE of Appearance by Mohammad K Tajsar (Tajsar, Mohammad) (Filed on 12/16/2014) (Entered: 12/16/2014)
6 NOTICE of Appearance by Joshua Piovia-Scott (Piovia-Scott, Joshua) (Filed on 12/16/2014) (Entered: 12/16/2014)
7 Summons Issued as to California Forensic Medical Group, Collins, County Of Monterey, Taylor Fithian, M.D., Scott Miller, Sheriff of Monterey County in his Official Capacity. (cv, COURT STAFF) (Filed on 12/16/2014) (Entered: 12/16/2014)
8 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 4/21/2015. Case Management Conference set for 4/28/2015 10:00 AM in Courtroom 5, 4th Floor, San Jose. (cv, COURT STAFF) (Filed on 12/16/2014) (Entered: 12/16/2014)
9 MOTION to Relate Case filed by D.P-O., Jacob Parenti, Susan Parenti. (Tajsar, Mohammad) (Filed on 12/30/2014) (Entered: 12/30/2014)
10 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by D.PO., Jacob Parenti, Susan Parenti.. (Tajsar, Mohammad) (Filed on 12/30/2014) (Entered: 12/30/2014)
11 ORDER GRANTING MOTION TO RELATE CASE by Magistrate Judge Paul Singh Grewal granting 9 . Case No. 14-cv-05481 related to Case No. 13-cv-02354. (psglc1S, COURT STAFF) (Filed on 12/31/2014) (Entered: 12/31/2014)
12 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE FOLLOWING REASSIGNMENT: Case Management Conference set for 4/28/2015 at 10:00 AM in Courtroom 5, 4th Floor, San Jose. Case Management Statement due by 4/21/2015. ***This is a text only docket entry, there is no document associated with this notice.*** (ofr, COURT STAFF) (Filed on 1/8/2015) (Entered: 01/08/2015)
13 ANSWER to Complaint with Jury Demand byCollins, County of Monterey, Scott Miller. (Attachments: # 1 Certificate/Proof of Service)(Blitch, Susan) (Filed on 2/5/2015) (Entered: 02/05/2015)
14 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Collins, County of Monterey, Scott Miller.. (Blitch, Susan) (Filed on 2/6/2015) (Entered: 02/06/2015)
15 CERTIFICATE OF SERVICE by D.P-O., Jacob Parenti, Susan Parenti
re 7 Summons Issued, 4 Case Assigned by Intake,,, 1 Complaint, 5 Notice of Appearance, 11 Order on Motion to Relate Case, 6 Notice of

02/06/2015 02/06/2015 02/06/2015 02/06/2015 02/10/2015

Appearance, 8 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 10 Consent/Declination to Proceed Before a US Magistrate Judge Proof of Service of Summons on Defendant California Forensic Medical Group (Piovia-Scott, Joshua) (Filed on 2/6/2015) (Entered: 02/06/2015)
16 CERTIFICATE OF SERVICE by D.P-O., Jacob Parenti, Susan Parenti
re 7 Summons Issued, 4 Case Assigned by Intake,,, 1 Complaint, 5 Notice of Appearance, 6 Notice of Appearance, 8 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 10 Consent/Declination to Proceed Before a US Magistrate Judge Proof of Service of Summons on Defendant County of Monterey (PioviaScott, Joshua) (Filed on 2/6/2015) (Entered: 02/06/2015)
17 CERTIFICATE OF SERVICE by D.P-O., Jacob Parenti, Susan Parenti
re 7 Summons Issued, 4 Case Assigned by Intake,,, 1 Complaint, 5 Notice of Appearance, 11 Order on Motion to Relate Case, 6 Notice of Appearance, 8 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 10 Consent/Declination to Proceed Before a US Magistrate Judge Proof of Service of Summons on Defendant Dr. Taylor Fithian (Piovia-Scott, Joshua) (Filed on 2/6/2015) (Entered: 02/06/2015)
18 CERTIFICATE OF SERVICE by D.P-O., Jacob Parenti, Susan Parenti
re 7 Summons Issued, 4 Case Assigned by Intake,,, 1 Complaint, 5 Notice of Appearance, 11 Order on Motion to Relate Case, 6 Notice of Appearance, 8 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 10 Consent/Declination to Proceed Before a US Magistrate Judge Proof of Service of Summons on Defendant Officer Collins (Piovia-Scott, Joshua) (Filed on 2/6/2015) (Entered: 02/06/2015)
19 CERTIFICATE OF SERVICE by D.P-O., Jacob Parenti, Susan Parenti
re 7 Summons Issued, 4 Case Assigned by Intake,,, 1 Complaint, 5 Notice of Appearance, 11 Order on Motion to Relate Case, 6 Notice of Appearance, 8 Initial Case Management Scheduling Order with ADR Deadlines, 3 Certificate of Interested Entities, 10 Consent/Declination to Proceed Before a US Magistrate Judge Proof of Service of Summons on Defendant Sheriff Scott Miller (Piovia-Scott, Joshua) (Filed on 2/6/2015) (Entered: 02/06/2015)
20 NOTICE of Appearance by Irven L. Grant (Grant, Irven) (Filed on 2/10/2015) (Entered: 02/10/2015)

02/10/2015 02/10/2015 03/11/2015 03/11/2015 03/24/2015
03/25/2015 04/07/2015 04/08/2015 04/15/2015
04/16/2015

21 NOTICE of Appearance by Michael Rudolph Philippi (Philippi, Michael) (Filed on 2/10/2015) (Entered: 02/10/2015)
22 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Blitch, Susan) (Filed on 2/10/2015) (Entered: 02/10/2015)
23 Defendant California Forensic Medical Group, Inc. and Taylor Fithian, M.D.'s ANSWER to Complaint with Jury Demand byCalifornia Forensic Medical Group, Taylor Fithian, M.D.. (Attachments: # 1 Certificate/Proof of Service)(Bertling, Peter) (Filed on 3/11/2015) (Entered: 03/11/2015)
24 NOTICE of Appearance by Jemma Allison Parker Saunders on behalf of Defendants California Forensic Medical Group, Inc. and Taylor Fithian, M.D. (Attachments: # 1 Certificate/Proof of Service)(Saunders, Jemma) (Filed on 3/11/2015) (Entered: 03/11/2015)
25 CLERK'S NOTICE Re: Consent or Declination: Defendants California Forensic Medical Group and Taylor Fithian, M.D. shall file a consent or declination to proceed before a magistrate judge within 14 days of this notice, by 4/7/2015. Forms are available at: http://cand.uscourts.gov/civilforms. (ofr, COURT STAFF) (Filed on 3/24/2015) (Entered: 03/24/2015)
26 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by California Forensic Medical Group, Taylor Fithian, M.D... (Attachments: # 1 Certificate/Proof of Service)(Saunders, Jemma) (Filed on 3/25/2015) (Entered: 03/25/2015)
27 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Rifkin, Lori) (Filed on 4/7/2015) (Entered: 04/07/2015)
28 ADR Clerk's Notice Setting ADR Phone Conference on Wednesday, April 22, 2015 at 11:30 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 4/8/2015) (Entered: 04/08/2015)
29 MOTION to Appear by Telephone at the April 28, 2015 Case Management Conference filed by D.P-O., Jacob Parenti, Susan Parenti. (Attachments: # 1 Proposed Order Granting Request to Appear Telephonically at Case Management Conference)(Piovia-Scott, Joshua) (Filed on 4/15/2015) (Entered: 04/15/2015)
30 ORDER GRANTING PLAINTIFFS' REQUEST TO APPEAR TELEPHONICALLY AT THE APRIL 28, 2015 CASE MANAGEMENT CONFERENCE by Judge Paul S. Grewal, granting 29 . Counsel is instructed to contact CourtCall at 866-582-6878 to arrange for telephonic appearance. (ofr, COURT STAFF) (Filed on 4/16/2015) (Entered: 04/16/2015)

04/21/2015 04/21/2015 04/21/2015 04/22/2015
04/22/2015
04/23/2015 04/28/2015

31 MOTION to Appear by Telephone filed by Collins, County of Monterey, Scott Miller. (Attachments: # 1 Declaration Irven L. Grant, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Grant, Irven) (Filed on 4/21/2015) (Entered: 04/21/2015)
32 MOTION to Appear by Telephone at the 4-28-15 CMC filed by California Forensic Medical Group, Taylor Fithian, M.D.. (Attachments: # 1 Declaration Jemma Parker Saunders, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Saunders, Jemma) (Filed on 4/21/2015) (Entered: 04/21/2015)
33 JOINT CASE MANAGEMENT STATEMENT and [Proposed] Order filed by D.P-O., Jacob Parenti, Susan Parenti. (Piovia-Scott, Joshua) (Filed on 4/21/2015) (Entered: 04/21/2015)
34 ORDER GRANTING DEFENDANTS COUNTY OF MONTEREY, SHERIFF SCOTT MILLER AND OFFICER COLLINS' REQUEST TO APPEAR TELEPHONICALLY AT THE APRIL 28, 2015 CASE MANAGEMENT CONFERENCE by Judge Paul S. Grewal, granting 31 . Counsel is instructed to contact CourtCall at 866-582-6878 to arrange for telephonic appearance. (ofr, COURT STAFF) (Filed on 4/22/2015) (Entered: 04/22/2015)
35 ORDER GRANTING DEFENDANTS CFMG AND TAYLOR FITHIAN'S REQUEST TO MAKE A TELEPHONIC APPEARANCE AT THE APRIL 28, 2015 CMC by Judge Paul S. Grewal, granting 32 . Counsel is instructed to contact CourtCall at 866-582-6878 to arrange for telephonic appearance. (ofr, COURT STAFF) (Filed on 4/22/2015) (Entered: 04/22/2015)
ADR Remark: ADR Phone Conference held 4/22/2015 with Robin W. Siefkin. (cmf, COURT STAFF) (Filed on 4/23/2015) (Entered: 04/23/2015)
36 Minute Entry for proceedings held before Magistrate Judge Paul Singh Grewal: Case Management Conference held on 4/28/2015 as to 5:13-cv02354-PSG and 5:14-cv-05481-PSG. As to Case No. 5:14-cv-05481-PSG, Jury Trial set for 11/7/2016 at 9:30 AM in Courtroom 5, 4th Floor, San Jose. Case management scheduling order to issue. As to 5:13-cv-02354PSG, case schedule to remain as presently set. Parties may submit a stipulated request to modify schedule for the court's review. FTR Time: (10:02 to 10:16). Plaintiff Attorney(s) present: Lori Rifkin. Also present (telephonically): Michael Bien and Josh Piovia-Scott. Defendant Attorney(s) present: Michael Philippi. Also present (telephonically): Irven Grant and Jemma Saunders. This is a text only Minute Entry. (ofr, COURT STAFF) (Date Filed: 4/28/2015) (Entered: 04/28/2015)

04/28/2015

***Setting Hearing: Jury Trial set for 11/7/2016 at 9:30 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. Pursuant to ECF No. 36 . (ofr, COURT STAFF) (Filed on 4/28/2015) (Entered: 04/28/2015)

04/29/2015 37

CASE SCHEDULING ORDER. Signed by Judge Paul S. Grewal on April 29, 2015 re 33 . (psglc1S, COURT STAFF) (Filed on 4/29/2015) (Entered: 04/29/2015)

04/29/2015

***CASE REFERRED to Magistrate Judge Nathanael M. Cousins for Settlement. Pretrial Conference set for 10/25/2016 at 10:00 AM in Courtroom 5, 4th Floor, San Jose before Magistrate Judge Paul Singh Grewal. Pursuant to

ECF No. 37 04/29/2015)

. (ofr, COURT STAFF) (Filed on 4/29/2015) (Entered:

06/02/2015

38 NOTICE OF SETTLEMENT CONFERENCE AND ORDER - Settlement Conference set for 10/30/2015 09:30 AM in Courtroom 7, 4th Floor, San Jose. Signed by Judge Nathanael Cousins on 6/2/2015. (Attachments: # 1 Standing Order)(lmh, COURT STAFF) (Filed on 6/2/2015) (Entered: 06/02/2015)

10/23/2015

39 MOTION to Appear by Telephone by Defendant Taylor Fithian, M.D., at the October 30, 2015 Mandatory Settlement Conference filed by California Forensic Medical Group, Taylor Fithian, M.D.. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Saunders, Jemma) (Filed on 10/23/2015) (Entered: 10/23/2015)

10/26/2015

40 RESPONSE (re 39 MOTION to Appear by Telephone by Defendant Taylor Fithian, M.D., at the October 30, 2015 Mandatory Settlement Conference ) Opposition filed byD.P-O., Jacob Parenti, Susan Parenti. (Rifkin, Lori) (Filed on 10/26/2015) (Entered: 10/26/2015)

10/26/2015

41 Order denying 39 without prejudice Motion to Appear by Telephone entered by Magistrate Judge Nathanael M. Cousins due to: (1) failure to show a meaningful meet and confer; (2) timing of request; and (3) lack of good cause shown. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 10/26/2015)

10/26/2015

42 Supplemental Brief re 41 Order on Motion to Appear by Telephone, filed byCalifornia Forensic Medical Group, Taylor Fithian, M.D.. (Attachments: # 1 Exhibit A, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Related document(s) 41 ) (Bertling, Peter) (Filed on 10/26/2015) (Entered: 10/26/2015)

10/28/2015 43

ORDER RE DEFENDANT TAYLOR FITHIAN, M.D.'S EX PARTE REQUEST TO BE AVAILABLE BY TELEPHONE AT MANDATORY SETTLEMENT CONFERENCE OF OCTOBER 30, 2015 [42-2]. Signed

10/28/2015 10/30/2015
12/02/2015 12/02/2015 05/13/2016
06/06/2016 06/08/2016

by Judge Nathanael Cousins on 10/28/2015. (lmh, COURT STAFF) (Filed on 10/28/2015) (Entered: 10/28/2015)
44 NOTICE of Appearance by Brian D Olney (Olney, Brian) (Filed on 10/28/2015) (Entered: 10/28/2015)
45 Minute Entry for proceedings held before Magistrate Judge Nathanael M. Cousins: Settlement Conference held on 10/30/2015. Case did not settle. Plaintiffs' Attorneys: Dan Stormer, Lori Rifkin. Defendants' Attorneys: Irven Grant, Peter Bertling. (FTR Time Not recorded.) This is a text only Minute Entry. (lmh, COURT STAFF) (Date Filed: 10/30/2015) (Entered: 10/30/2015)
46 STIPULATION WITH PROPOSED ORDER re Protective Order filed by D.PO., Jacob Parenti, Susan Parenti. (Piovia-Scott, Joshua) (Filed on 12/2/2015) (Entered: 12/02/2015)
47 STIPULATION AND PROTECTIVE ORDER by Magistrate Judge Paul Singh Grewal granting 46 . (psglc1S, COURT STAFF) (Filed on 12/2/2015) (Entered: 12/02/2015)
48 CLERK'S NOTICE VACATING OCTOBER 25, 2016 PRETRIAL CONFERENCE AND NOVEMBER 7, 2016 JURY TRIAL: In light of the pending resignation of Magistrate Judge Paul S. Grewal, all hearing dates presently set before Magistrate Judge Paul S. Grewal are hereby vacated and should be re-noticed for hearing before the judge to whom this case is reassigned. Parties will be informed by separate notice of the judge to whom this case is reassigned. ***This is a text only docket entry, there is no document associated with this notice.*** (ofr, COURT STAFF) (Filed on 5/13/2016) (Entered: 05/13/2016)
49 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Beth Labson Freeman for all further proceedings. Magistrate Judge Paul Singh Grewal no longer assigned to the case. Signed by Judge The Executive Committee on 06/06/2016. (tsh, COURT STAFF) (Filed on 6/6/2016) (Entered: 06/07/2016)
50 CLERK'S NOTICE RESETTING CASE MANAGEMENT CONFERENCE FOLLOWING REASSIGNMENT. Joint Case Management Statement due by 8/04/2016. Case Management Conference set for 8/11/2016 11:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Beth Labson Freeman. All other deadlines associated with the initial case management conference are adjusted accordingly. The Court does not issue a revised Initial Case Management Scheduling Order with ADR Deadlines. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/blf This is a text only docket entry, there is no document associated with this notice.(tsh, COURT STAFF) (Filed on 6/8/2016) (Entered: 06/08/2016)

07/13/2016 07/15/2016 08/04/2016 08/04/2016 08/11/2016
08/11/2016 08/11/2016
08/11/2016
08/12/2016 08/26/2016

51 STIPULATION WITH PROPOSED ORDER to Continue Case Management Dates by 30 days to Complete Previously Propounded Discovery filed by D.PO., Jacob Parenti, Susan Parenti. (Attachments: # 1 Proposed Order Granting Joint Stipulation)(Olney, Brian) (Filed on 7/13/2016) (Entered: 07/13/2016)
52 ORDER APPROVING IN PART 51 STIPULATED REQUEST TO MODIFY CASE SCHEDULE. Signed by Judge Beth Labson Freeman.(blflc2S, COURT STAFF) (Filed on 7/15/2016) (Entered: 07/15/2016)
53 NOTICE of Change of Address by Joshua Piovia-Scott (Piovia-Scott, Joshua) (Filed on 8/4/2016) (Entered: 08/04/2016)
54 CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER filed by D.P-O., Jacob Parenti, Susan Parenti. (Olney, Brian) (Filed on 8/4/2016) (Entered: 08/04/2016)
55 Minute Entry for proceedings held before Hon. Beth Labson Freeman: Further Case Management Conference held on 8/11/2016.FTR Time: 11:18 - 11:45. Plaintiff Attorney: Joshua Piovia-Scott. Defendant Attorney: Irven Grant, Peter Bertling. This is a text only Minute Entry (tshS, COURT STAFF)(Date Filed: 8/11/2016) (Entered: 08/12/2016)
57 CASE MANAGEMENT ORDER re 55 Case Management Conference. Signed by Judge Beth Labson Freeman on 08/11/2016. (tshS, COURT STAFF) (Filed on 8/11/2016) (Entered: 08/15/2016)
Jury Selection set for 11/26/2018 09:00 AM before Hon. Beth Labson Freeman. Jury Trial set for 11/26/2018, 11/27/2018, 11/28/2018, 11/29/2018, 11/30/2018, 12/3/2018, 12/4/2018, 12/5/2018, 12/6/2018 and 12/7/2018 09:00 AM before Hon. Beth Labson Freeman. (tshS, COURT STAFF) (Filed on 8/11/2016) (Entered: 08/22/2016)
Set/Reset Hearing re 57 : Case Management Statement due 01/12/2017. Further Case Management Conference set for 1/19/2017 11:00 AM. Last Day to Hear Dispositive Motions set for 04/20/2017 9:00 AM. or tentative set for 08/23/2018 9:00 AM. Jury Trial set for 11/26/2018 9:00 AM. (tshS, COURT STAFF) (Filed on 8/11/2016) (Entered: 09/22/2016)
56 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by California Forensic Medical Group, Taylor Fithian, M.D... (Attachments: # 1 Certificate/Proof of Service Certificate of Service)(Saunders, Jemma) (Filed on 8/12/2016) (Entered: 08/12/2016)
58 NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Piovia-Scott, Joshua) (Filed on 8/26/2016) (Entered: 08/26/2016)

08/31/2016 09/02/2016 09/02/2016 09/14/2016 11/17/2016 11/17/2016
11/23/2016 12/01/2016 01/12/2017 01/13/2017

59 ADR Clerk's Notice Setting ADR Phone Conference on September 14, 2016 at 1:30 PM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 8/31/2016) (Entered: 08/31/2016)
60 STIPULATION WITH PROPOSED ORDER re Case Management Schedule filed by Collins, County of Monterey, Scott Miller. (Grant, Irven) (Filed on 9/2/2016) (Entered: 09/02/2016)
61 ORDER GRANTING 60 STIPULATION RE CASE MANAGEMENT SCHEDULE. Signed by Judge Beth Labson Freeman on 9/2/2016.(blflc1S, COURT STAFF) (Filed on 9/2/2016) (Entered: 09/02/2016)
62 ADR Remark: ADR Phone Conference held on 9/14/2016 with Tamara Lange. (cmf, COURT STAFF) (Filed on 9/14/2016) (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 09/14/2016)
63 STIPULATION WITH PROPOSED ORDER to Continue Expert Discovery and Dispositive Motion Deadlines filed by D.P-O., Jacob Parenti, Susan Parenti. (Attachments: # 1 Proposed Order Granting Stipulation)(Piovia-Scott, Joshua) (Filed on 11/17/2016) (Entered: 11/17/2016)
64 ORDER GRANTING 63 STIPULATION TO CONTINUE EXPERT DISCOVERY AND DISPOSITIVE MOTION DEADLINES **AS MODIFIED BY THE COURT**. Signed by Judge Beth Labson Freeman on 11/17/2016.(blflc1S, COURT STAFF) (Filed on 11/17/2016) (Entered: 11/17/2016)
Reset Hearing re 64 Order on Stipulation. Last Day to Hear Dispositive Motions set for 11/9/2017 09:00 AM before Hon. Beth Labson Freeman. (tshS, COURT STAFF) (Filed on 11/23/2016) (Entered: 11/23/2016)
65 ORDER RE SITE VISIT. Signed by Judge Beth Labson Freeman on 12/1/2016. (blflc1S, COURT STAFF) (Filed on 12/1/2016) (Entered: 12/01/2016)
66 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER filed by D.P-O., Jacob Parenti, Susan Parenti. (Olney, Brian) (Filed on 1/12/2017) Modified on 1/12/2017 (bwS, COURT STAFF). (Entered: 01/12/2017)
67 ORDER APPROVING 66 JOINT CASE MANAGEMENT STATEMENT. Signed by Judge Beth Labson Freeman on 1/13/2017. (blflc1S, COURT STAFF) (Filed on 1/13/2017) (Entered: 01/13/2017)

01/19/2017
01/20/2017 01/25/2017
02/03/2017 02/08/2017 03/02/2017 03/06/2017

69 Minute Entry for proceedings held before Hon. Beth Labson Freeman: Further Case Management Conference held on 1/19/2017. Further Case Management Conference set 01/25/2017 at 10:00 AM.FTR Time: 11:00 11:08. Plaintiff Attorney: Lori Rifkin. Defendant Attorney: Irven Grant, Jemma Saunders. This is a text only Minute Entry (tshS, COURT STAFF) (Date Filed: 1/19/2017) (Entered: 01/23/2017)
68 CLERK'S NOTICE SETTING TELEPHONIC CASE MANAGEMENT CONFERENCE. Further Case Management Conference set for 1/25/2017 10:00 AM in Courtroom 3, 5th Floor, San Jose. (This is a text-only entry generated by the court. There is no document associated with this entry.) (tshS, COURT STAFF) (Filed on 1/20/2017) (Entered: 01/20/2017)
70 Minute Entry for proceedings held before Hon. Beth Labson Freeman: Further Case Management Conference held on 1/25/2017.FTR Time: 10:00 - 10:22. Plaintiff Attorney: Lori Rifkin, Van Stromer. Defendant Attorney: Michael Philippi, Irven Grant, Peter Bertling, Jemma Saunders, Susan Blitch. This is a text only Minute Entry (tshS, COURT STAFF) (Date Filed: 1/25/2017) (Entered: 01/26/2017)
71 ORDER Referring Motion (11) to Relate Cases in 16-CV-00945-LHK. Signed by Judge Lucy H. Koh on February 3, 2017. (lhklc1, COURT STAFF) (Filed on 2/3/2017) (Entered: 02/03/2017)
72 ORDER RELATING CASES (addressing 71 ). Signed by Judge Beth Labson Freeman on 2/8/2017. (blflc1S, COURT STAFF) (Filed on 2/8/2017) (Entered: 02/08/2017)
73 TRANSCRIPT ORDER for proceedings held on 01/19/2017 before Hon. Beth Labson Freeman by D.P-O., Jacob Parenti, Susan Parenti, for Court Reporter FTR - San Jose. (Piovia-Scott, Joshua) (Filed on 3/2/2017)(TRANSCRIBER: JOAN COLUMBINI) Modified on 3/3/2017 (lmh, COURT STAFF). (Entered: 03/02/2017)
74 Transcript of Proceedings held on January 19, 2017, before Judge Beth Labson Freeman. Court Reporter/Transcriber Joan Marie Columbini, CSR, telephone number joan.columbini.csr@gmail.com 510-367-3043. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (73 in 5:14-cv-05481-BLF) Transcript Order, ) Redaction Request due 3/27/2017. Redacted Transcript Deadline set for 4/6/2017. Release of Transcript Restriction set for 6/5/2017. (Columbini, Joan) (Filed on 3/6/2017) (Entered: 03/06/2017)

03/21/2017 03/30/2017 04/06/2017 04/06/2017 04/07/2017 04/13/2017

75 NOTICE AND ORDER SETTING SETTLEMENT CONFERENCE for 4/6/2017 09:30 AM in Courtroom 7, 4th Floor, San Jose. Signed by Judge Nathanael Cousins on 3/21/2017. (Attachments: # 1 Standing Order)(lmh, COURT STAFF) (Filed on 3/21/2017) (Entered: 03/21/2017)
76 MOTION to Exclude Duplicative & Inadmissible Expert Testimony filed by D.P-O., Jacob Parenti, Susan Parenti. Motion Hearing set for 9/7/2017 09:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Beth Labson Freeman. Responses due by 4/13/2017. Replies due by 4/20/2017. (Attachments: # 1 Declaration of Brian Olney and Exhibits in Support of Plaintiffs' Motion to Exclude (Vol. 1 of 2), # 2 Declaration of Brian Olney and Exhibits in Support of Plaintiffs' Motion to Exclude (Vol. 2 of 2), # 3 Proposed Order Granting Plaintiffs' Motion to Exclude Duplicative & Inadmissible Expert Testimony)(Olney, Brian) (Filed on 3/30/2017) (Entered: 03/30/2017)
77 Minute Entry for proceedings held before Magistrate Judge Nathanael M. Cousins:. Settlement Conference held on 4/6/2017: Parties to provide settlement update by 6/6/2017. Plaintiffs' Attorneys: Joshua Piovia-Scott, Don Stormer. Defendants' Attorneys: Irven Grant (County Defendants), Peter Bertling (CFMG). (FTR Time Not recorded.) This is a text-only Minute Entry. (lmh, COURT STAFF) (Date Filed: 4/6/2017) (Entered: 04/06/2017)
78 JOINT STIPULATION TO SHORTEN TIME TO HEAR PLAINTIFFS MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY re 76 MOTION to Exclude Duplicative & Inadmissible Expert Testimony filed by D.P-O., Jacob Parenti, Susan Parenti. (Attachments: # 1 Declaration of Brian Olney in Support of Joint Stipulation to Shorten Time, # 2 (Proposed) Order Granting Joint Stipulation to Shorten Time)(Olney, Brian) (Filed on 4/6/2017) Text modified on 4/7/2017 conforming to posted document (bwS, COURT STAFF). (Entered: 04/06/2017)
79 ORDER GRANTING 78 JOINT STIPULATION TO SHORTEN TIME TO HEAR 76 PLAINTIFFS' MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY. Motion Hearing set for 4/27/2017 09:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Beth Labson Freeman. Signed by Judge Beth Labson Freeman on 4/7/2017. (blflc1S, COURT STAFF) (Filed on 4/7/2017) (Entered: 04/07/2017)
80 OPPOSITION TO PLAINTIFFS MOTION TO EXCLUDE EXPERT TESTIMONY (re 76 MOTION to Exclude Duplicative & Inadmissible Expert Testimony filed by California Forensic Medical Group, Taylor Fithian, M.D.. (Attachments: # 1 Declaration of Peter Bertling and Exhibits in Support of

04/13/2017 04/20/2017 04/20/2017 04/20/2017 04/24/2017 04/27/2017

Defendants' Opposition)(Bertling, Peter) (Filed on 4/13/2017) Modified on 4/13/2017 (bwS, COURT STAFF). (Entered: 04/13/2017)
81 OPPOSITION TO PLAINTIFFS MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY (re 76 MOTION to Exclude Duplicative & Inadmissible Expert Testimony filed by Collins, County of Monterey, Scott Miller. (Attachments: # 1 Declaration of Irven L. Grant, # 2 Certificate/Proof of Service)(Grant, Irven) (Filed on 4/13/2017) Modified on 4/17/2017 (bwS, COURT STAFF). (Entered: 04/13/2017)
82 REPLY TO DEFENDANTS COUNTY OF MONTEREY, SHERIFF SCOTT MILLER AND OFFICER COLLINS OPPOSITION TO PLAINTIFFS MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY (re 76 MOTION to Exclude Duplicative & Inadmissible Expert Testimony as to Defendants County of Monterey, Miller & Collins filed by D.PO., Jacob Parenti, Susan Parenti. (Olney, Brian) (Filed on 4/20/2017) Text modified on 4/21/2017 conforming to posted document caption (bwS, COURT STAFF). (Entered: 04/20/2017)
83 REPLY TO DEFENDANTS CALIFORNIA FORENSIC MEDICAL GROUP, INC. AND TAYLOR FITHIAN, M.D.S OPPOSITION TO PLAINTIFFS MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY (re 76 MOTION to Exclude Duplicative & Inadmissible Expert Testimony as to Defendants CFMG & Fithian filed by D.P-O., Jacob Parenti, Susan Parenti. (Olney, Brian) (Filed on 4/20/2017) Modified on 4/21/2017 (bwS, COURT STAFF). (Entered: 04/20/2017)
84 Declaration of Brian Olney and Exhibits 12-17 in Support of 83 Reply to Opposition/Response, 82 Reply to Opposition/Response filed byD.P-O., Jacob Parenti, Susan Parenti. (Related document(s) 83 , 82 ) (Olney, Brian) (Filed on 4/20/2017) (Entered: 04/20/2017)
85 ORDER RESETTING HEARING ON 76 PLAINTIFF'S MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY FROM APRIL 27, 2017 AT 9:00 A.M. TO APRIL 27, 2017 AT 1:30 P.M.; AND GRANTING ALL COUNSEL PERMISSION TO APPEAR TELEPHONICALLY. Motion Hearing set for 4/27/2017 01:30 PM in Courtroom 3, 5th Floor, San Jose before Hon. Beth Labson Freeman. (blflc1S, COURT STAFF) (Filed on 4/24/2017) (Entered: 04/24/2017)
86 Minute Entry for proceedings held before Hon. Beth Labson Freeman: Motion Hearing held on 4/27/2017 re 76 MOTION to Exclude Duplicative & Inadmissible Expert Testimony filed by D.P-O., Susan Parenti, Jacob Parenti. The Court takes the matter under submission. Written order to be issued. Total Time in Court: 1:01. Court Reporter Name: Lee-Anne Shortridge. Plaintiff Attorney: Brain Olney, Josh Piovia-Scott via

Courtcall. Defendant Attorney: Peter Bertling via Courtcall, Irven Grant via Courtcall. This is a text-only Minute Entry (tshS, COURT STAFF)(Date Filed: 4/27/2017) (Entered: 04/28/2017)

05/03/2017 87

ORDER GRANTING IN PART AND DENYING IN PART 76 PLAINTIFFS' MOTION TO EXCLUDE DUPLICATIVE AND INADMISSIBLE EXPERT TESTIMONY; AND REFERRING 76 RULE 26 DISCLOSURE ISSUES TO MAGISTRATE JUDGE SUSAN VAN KEULEN FOR DISPOSITION. Signed by Judge Beth Labson Freeman on 5/3/2017. (blflc1S, COURT STAFF) (Filed on 5/3/2017) (Entered: 05/03/2017)

05/10/2017 88

REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART 76 PLAINTIFFS' MOTION TO EXCLUDE NONRETAINED EXPERTS. Signed by Magistrate Judge Susan van Keulen on 5/10/2017. (ofr, COURT STAFF) (Filed on 5/10/2017) (Entered: 05/10/2017)

05/16/2017

89 Sua Sponte Judicial Referral for Purposes of Determining Relationship of Cases. Signed by Judge Lucy H. Koh on May 16, 2017. (lhklc2S, COURT STAFF) (Filed on 5/16/2017) (Entered: 05/16/2017)

05/16/2017

90 ORDER DENYING RELATION. Signed by Judge Beth Labson Freeman on 5/16/2017. (blflc2S, COURT STAFF) (Filed on 5/16/2017) (Entered: 05/16/2017)

06/06/2017

91 Statement re 77 Settlement Conference, (JOINT) Settlement Update by D.P-O., Jacob Parenti, Susan Parenti. (Piovia-Scott, Joshua) (Filed on 6/6/2017) (Entered: 06/06/2017)

06/06/2017 92

ORDER ADOPTING 88 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART 76 PLAINTIFFS' MOTION TO EXCLUDE NON-RETAINED EXPERTS. Signed by Judge Beth Labson Freeman on 6/6/2017. (blflc1S, COURT STAFF) (Filed on 6/6/2017) (Entered: 06/06/2017)

07/25/2017

93 NOTICE by California Forensic Medical Group, Taylor Fithian, M.D. Notice of unavailability (Bertling, Peter) (Filed on 7/25/2017) (Entered: 07/25/2017)

08/04/2017

94 NOTICE of Appearance by Janet L. Holmes (Holmes, Janet) (Filed on 8/4/2017) (Entered: 08/04/2017)

08/09/2017

95 STIPULATION WITH PROPOSED ORDER re Deposition of Plaintiffs' Expert Jeffrey Schwartz, Ph.D. filed by Collins, County of Monterey, Scott Miller. (Holmes, Janet) (Filed on 8/9/2017) (Entered: 08/09/2017)

08/09/2017 09/20/2017 10/04/2017 10/05/2017 10/05/2017
10/19/2017 10/19/2017 10/26/2017 11/09/2017

96 ORDER GRANTING 95 STIPULATION RE DEPOSITION OF PLAINTIFFS' EXPERT. Signed by Judge Beth Labson Freeman on 8/9/2017. (blflc2S, COURT STAFF) (Filed on 8/9/2017) (Entered: 08/09/2017)
97 NOTICE of Appearance by Elias Ethan Salameh (Salameh, Elias) (Filed on 9/20/2017) (Entered: 09/20/2017)
98 STIPULATION WITH PROPOSED ORDER for Dismissal of Defendants California Forensic Medical Group and Dr. Taylor Fithian filed by D.P-O., Jacob Parenti, Susan Parenti. (Piovia-Scott, Joshua) (Filed on 10/4/2017) (Entered: 10/04/2017)
99 ORDER GRANTING 98 STIPULATION FOR DISMISSAL OF DEFENDANTS CALIFORNIA FORENSIC MEDICAL GROUP AND DR. TAYLOR FITHIAN. Signed by Judge Beth Labson Freeman on 10/5/2017. (blflc2S, COURT STAFF) (Filed on 10/5/2017) (Entered: 10/05/2017)
100 MOTION for Partial Summary Judgment filed by Collins. Motion Hearing set for 11/9/2017 09:00 AM in Courtroom 3, 5th Floor, San Jose before Judge Beth Labson Freeman. Responses due by 10/19/2017. Replies due by 10/26/2017. (Attachments: # 1 Declaration of Deputy Timmy Collins, # 2 Declaration of James Bass, # 3 Declaration of Johnathan Thornburg, # 4 Declaration of Janet L. Holmes, # 5 Proposed Order, # 6 Certificate/Proof of Service)(Holmes, Janet) (Filed on 10/5/2017) (Entered: 10/05/2017)
101 NOTICE of Change In Counsel by Lori Rifkin (Withdrawal of Individual Counsel - Mohammad Tajsar) (Rifkin, Lori) (Filed on 10/19/2017) (Entered: 10/19/2017)
102 OPPOSITION/RESPONSE (re 100 MOTION for Partial Summary Judgment ) filed byD.P-O., Jacob Parenti, Susan Parenti. (Attachments: # 1 Declaration of Lori Rifkin and Exhibits in Support of Opposition (Vol. 1 of 2), # 2 Declaration of Lori Rifkin and Exhibits in Support of Opposition (Vol. 2 of 2))(Rifkin, Lori) (Filed on 10/19/2017) (Entered: 10/19/2017)
103 REPLY (re 100 MOTION for Partial Summary Judgment ) filed byCollins. (Attachments: # 1 Certificate/Proof of Service)(Holmes, Janet) (Filed on 10/26/2017) (Entered: 10/26/2017)
104 Minute Entry for proceedings held before Judge Beth Labson Freeman: Motion Hearing held on 11/9/2017. Total Time in Court: 53 Minutes. Court Reporter: Summer Fisher. Plaintiff Attorney: Lori Rifkin. Defendant Attorney: James Holmes, Elias Salameh. (This is a text-only entry generated by the court. There is no document associated with this entry.) (tshS, COURT STAFF) (Date Filed: 11/9/2017) (Entered: 11/14/2017)

11/16/2017

105 Supplemental Brief re 102 Opposition/Response to Motion, to Defendant Collins's Motion for Partial Summary Judgment filed byD.P-O., Jacob Parenti, Susan Parenti. (Related document(s) 102 ) (Olney, Brian) (Filed on 11/16/2017) (Entered: 11/16/2017)

11/21/2017

106 REPLY (re 100 MOTION for Partial Summary Judgment ) Reply to Plaintiffs' Supplemental Brief filed byCollins. (Attachments: # 1 Certificate/Proof of Service)(Holmes, Janet) (Filed on 11/21/2017) (Entered: 11/21/2017)

03/19/2018

107 **PLEASE DISREGARD - ISSUED IN ERROR** Modified on 3/19/2018 (lmh, COURT STAFF). (Entered: 03/19/2018)

03/23/2018

108 STATUS REPORT on Joint Settlement Update by County of Monterey. (Grant, Irven) (Filed on 3/23/2018) (Entered: 03/23/2018)

04/06/2018 109

ORDER GRANTING IN PART AND DENYING IN PART 100 DEPUTY COLLINS' MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 4/6/2018. (blflc2S, COURT STAFF) (Filed on 4/6/2018) (Entered: 04/06/2018)

08/28/2018

110 ORDER OF REFERENCE TO MAGISTRATE JUDGE COUSINS FOR SETTLEMENT CONFERENCE. Signed by Judge Beth Labson Freeman on 8/28/2018. (blflc2S, COURT STAFF) (Filed on 8/28/2018) (Entered: 08/28/2018)

09/04/2018

111 CLERK'S NOTICE SETTING Further Settlement Conference for 10/12/2018 09:30 AM before Judge Nathanael Cousins in San Jose, Courtroom 7, 4th Floor. Parties to submit their settlement conference statements no later than 10/5/2018. Please see Judge Cousins' Settlement Conference Standing Order on the Court's website: https://cand.uscourts.gov/nmcorders. (This is a text-only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Filed on 9/4/2018) (Entered: 09/04/2018)

09/20/2018

112 MOTION to Take Deposition from Michael Wolfe (For Trial Testimony) filed by D.P-O., Jacob Parenti, Susan Parenti. Motion Hearing set for 2/14/2019 09:00 AM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/4/2018. Replies due by 10/11/2018. (Attachments: # 1 Declaration of Joshua Piovia-Scott & Exhibits, # 2 Proposed Order)(Piovia-Scott, Joshua) (Filed on 9/20/2018) (Entered: 09/20/2018)

09/24/2018

113 STIPULATION WITH PROPOSED ORDER re 112 MOTION to Take Deposition from Michael Wolfe (For Trial Testimony) (Joint) filed by D.P-O., Jacob Parenti, Susan Parenti. (Attachments: # 1 Declaration of Joshua PioviaScott, # 2 Proposed Order)(Piovia-Scott, Joshua) (Filed on 9/24/2018) (Entered: 09/24/2018)

09/25/2018 09/25/2018 09/26/2018
09/27/2018 10/02/2018 10/02/2018
10/03/2018 10/12/2018

114 ADMINISTRATIVE MOTION Request to exclude defendant from appearance at settlement conference re 111 Clerk's Notice,, filed by Scott Miller. Responses due by 10/1/2018. (Attachments: # 1 Certificate/Proof of Service)(Grant, Irven) (Filed on 9/25/2018) (Entered: 09/25/2018)
115 ORDER GRANTING Defendant Sheriff Scott Miller's Request to be Excused from Appearance at the October 12, 2018 Settlement Conference 114 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 9/25/2018) (Entered: 09/25/2018)
116 ORDER CONSTRUING 112 PLAINTIFFS MOTION FOR LEAVE TO TAKE TRIAL TESTIMONY VIA DEPOSITION AS MOTION IN LIMINE; VACATING FEBRUARY 14, 2019 HEARING; DENYING 113 STIPULATION. Signed by Judge Beth Labson Freeman on 9/26/2018. (blflc2S, COURT STAFF) (Filed on 9/26/2018) (Entered: 09/26/2018)
Reset Motion Hearing as to 112 MOTION to Take Deposition from Michael Wolfe (For Trial Testimony). Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. (tshS, COURT STAFF) (Filed on 9/27/2018) (Entered: 09/28/2018)
117 NOTICE by D.P-O., Jacob Parenti, Susan Parenti Requesting that Matthew Oberholtz Be Permitted to Appear Via Video or Telephone at the October 12, 2018 Settlement Conference; Declaration of Joshua Piovia-Scott and Proposed Order (Piovia-Scott, Joshua) (Filed on 10/2/2018) (Entered: 10/02/2018)
118 ORDER GRANTING PLAINTIFFS' REQUEST that Matthew Oberholtz be Permitted to Appear Via Video or Telephone at Settlement Conference 117 . Matthew Oberholtz must be available by telephone for the duration of the Settlement Conference on 10/12/2018. Signed by Judge Nathanael Cousins on 10/2/2018. (lmh, COURT STAFF) (Filed on 10/2/2018) (Entered: 10/02/2018)
119 OPPOSITION/RESPONSE (re 112 MOTION to Take Deposition from Michael Wolfe (For Trial Testimony) ) filed byCounty of Monterey. (Attachments: # 1 Declaration of Irven L. Grant, # 2 Certificate/Proof of Service)(Grant, Irven) (Filed on 10/3/2018) (Entered: 10/03/2018)
120 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement Conference held on 10/12/2018: No settlement; discussions continue; Parties asked to provide confidential update to settlement judge by 10/30. Attorneys for Plaintiffs: Dan Stormer, Joshua Piovia-Scott. Attorneys for Defendants: Irven Grant, Janet Holmes. FTR Time: Not recorded.

10/18/2018 10/18/2018 10/18/2018 10/18/2018 10/18/2018 10/18/2018 10/18/2018

(This is a text-only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 10/12/2018) (Entered: 10/12/2018)
121 First MOTION in Limine re Testimony of Plaintiffs' Declared Expert Jeffrey Schwartz filed by Collins, County of Monterey, Scott Miller. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Grant, Irven) (Filed on 10/18/2018) (Entered: 10/18/2018)
122 Second MOTION in Limine re 2007 and 2011 Jail Needs Assessments filed by Collins, County of Monterey, Scott Miller. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Grant, Irven) (Filed on 10/18/2018) (Entered: 10/18/2018)
123 Third MOTION in Limine re Hernandez v. County of Monterey filed by Collins, County of Monterey, Scott Miller. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Grant, Irven) (Filed on 10/18/2018) (Entered: 10/18/2018)
124 Fourth MOTION in Limine re Punitive Damages filed by Collins, County of Monterey, Scott Miller. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Grant, Irven) (Filed on 10/18/2018) (Entered: 10/18/2018)
125 Pretrial Conference Statement by D.P-O., Jacob Parenti, Susan Parenti . (Attachments: # 1 Appendix A - Plaintiffs' Witness List, # 2 Appendix A Defendants' Witness List, # 3 Appendix B - Joint Trial Exhibit List, # 4 Appendix C - Discovery Responses)(Piovia-Scott, Joshua) (Filed on 10/18/2018) (Entered: 10/18/2018)
126 MOTION in Limine No. 1 To Exclude And/Or Limit Evidence Of Criminal History And Alleged Drug Use filed by D.P-O., Jacob Parenti, Susan Parenti. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Attachments: # 1 Proposed Order Granting MIL No. 1)(Piovia-Scott, Joshua) (Filed on 10/18/2018) (Entered: 10/18/2018)
127 MOTION in Limine No. 2 To Exclude The Inmate Witness Interviews Conducted By Defendants And The Documents Produced After The Close Of Discovery filed by D.P-O., Jacob Parenti, Susan Parenti. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Attachments: # 1 Proposed Order Granting MIL No. 2)(Piovia-Scott, Joshua) (Filed on 10/18/2018) (Entered: 10/18/2018)

10/18/2018 10/18/2018 10/18/2018
10/24/2018 10/26/2018 10/26/2018

128 MOTION in Limine No. 3 To Exclude Evidence Re Dismissal Of Claims And Parties And Preclude Officers From Testifying In Uniform filed by D.P-O., Jacob Parenti, Susan Parenti. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Attachments: # 1 Proposed Order Granting MIL No. 3)(Piovia-Scott, Joshua) (Filed on 10/18/2018) (Entered: 10/18/2018)
129 MOTION in Limine No. 4 To Exclude And/Or Limit Defendants Expert Testimony filed by D.P-O., Jacob Parenti, Susan Parenti. Motion Hearing set for 11/1/2018 01:30 PM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 10/25/2018. (Attachments: # 1 Proposed Order Granting MIL No. 4)(Piovia-Scott, Joshua) (Filed on 10/18/2018) (Entered: 10/18/2018)
130 Declaration of Joshua Piovia-Scott in Support of 128 MOTION in Limine No. 3 To Exclude Evidence Re Dismissal Of Claims And Parties And Preclude Officers From Testifying In Uniform, 126 MOTION in Limine No. 1 To Exclude And/Or Limit Evidence Of Criminal History And Alleged Drug Use, 129 MOTION in Limine No. 4 To Exclude And/Or Limit Defendants Expert Testimony, 127 MOTION in Limine No. 2 To Exclude The Inmate Witness Interviews Conducted By Defendants And The Documents Produced After The Close Of Discovery filed byD.P-O., Jacob Parenti, Susan Parenti. (Related document(s) 128 , 126 , 129 , 127 ) (Piovia-Scott, Joshua) (Filed on 10/18/2018) (Entered: 10/18/2018)
131 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement session held on 10/24/2018: Case settled. Attorneys for Plaintiff: Joshua Piovia-Scott, Dan Stormer. Attorneys for Defendants: Irven Grant, Janet Holmes. (FTR Time: Not reported.) (This is a text-only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 10/24/2018) (Entered: 10/24/2018)
132 ORDER VACATING NOVEMBER 1, 2018 PRETRIAL CONFERENCE; DIRECTING PARTIES TO FILE NOTICE OF SETTLEMENT ON OR BEFORE NOVEMBER 9, 2018. Signed by Judge Beth Labson Freeman on 10/26/2018. (blflc2S, COURT STAFF) (Filed on 10/26/2018) (Entered: 10/26/2018)
Final Pretrial Conference VACATED per 132 ORDER VACATING NOVEMBER 1, 2018 PRETRIAL CONFERENCE; DIRECTING PARTIES TO FILE NOTICE OF SETTLEMENT ON OR BEFORE NOVEMBER 9, 2018. (tshS, COURT STAFF) (Filed on 10/26/2018) (Entered: 10/29/2018)

10/30/2018

133 NOTICE by D.P-O., Jacob Parenti, Susan Parenti (Joint) Notice of Settlement and [Proposed] Order (Piovia-Scott, Joshua) (Filed on 10/30/2018) (Entered: 10/30/2018)

11/01/2018

134 ORDER VACATING TRIAL DATE AND ALL PENDING DEADLINES; REQUESTING STATUS REPORT OR MOTION FOR APPROVAL OF SETTLEMENT OF A MINOR ON OR BEFORE JANUARY 4, 2019; TERMINATING 112 , 121 , 122 , 123 , 124 , 126 , 127 , 128 , 129 MOTIONS IN LIMINE. Signed by Judge Beth Labson Freeman on 11/1/2018.(blflc2S, COURT STAFF) (Filed on 11/1/2018) (Entered: 11/01/2018)

11/01/2018

Trial Dates and Deadlines VACATED per 134 ORDER VACATING TRIAL DATE AND ALL PENDING DEADLINES. (tshS, COURT STAFF) (Filed on 11/1/2018) (Entered: 11/02/2018)

01/04/2019

135 STATUS REPORT re Settlement (JOINT) by D.P-O., Jacob Parenti, Susan Parenti. (Piovia-Scott, Joshua) (Filed on 1/4/2019) (Entered: 01/04/2019)

01/23/2019

136 MOTION for Settlement Approval of a Minor and [Proposed] Order filed by D.P-O., Jacob Parenti, Susan Parenti. Motion Hearing set for 2/28/2019 09:00 AM in San Jose, Courtroom 3, 5th Floor before Judge Beth Labson Freeman. Responses due by 2/6/2019. Replies due by 2/13/2019. (Attachments: # 1 Declaration of Joshua Piovia-Scott)(Piovia-Scott, Joshua) (Filed on 1/23/2019) (Entered: 01/23/2019)

02/14/2019

137 ORDER VACATING FEBRUARY 28, 2019 HEARING ON PLAINTIFFS' MOTION FOR APPROVAL OF SETTLEMENT OF A MINOR. Signed by Judge Beth Labson Freeman on 2/14/2019. (blflc2S, COURT STAFF) (Filed on 2/14/2019) (Entered: 02/14/2019)

02/14/2019

HEARING re ( 136 ) VACATED per 137 Order Vacating Hearing. (tshS, COURT STAFF) (Filed on 2/14/2019) (Entered: 02/15/2019)

03/05/2019

138 ORDER REQUESTING SUPPLEMENTAL DECLARATION FROM PLAINTIFFS RE SETTLEMENT OF MINOR'S CLAIMS ON OR BEFORE MARCH 19, 2019. Signed by Judge Beth Labson Freeman on 3/5/2019. (blflc2S, COURT STAFF) (Filed on 3/5/2019) (Entered: 03/05/2019)

03/18/2019

139 Declaration of Matthew Oberholtz in Support of 136 MOTION for Settlement Approval of a Minor and [Proposed] Order, 138 Order filed byD.PO., Jacob Parenti, Susan Parenti. (Related document(s) 136 , 138 ) (PioviaScott, Joshua) (Filed on 3/18/2019) (Entered: 03/18/2019)

03/18/2019 140

ORDER APPROVING 136 SETTLEMENT OF MINOR'S CLAIMS. Dismissal or status report due on or before April 30, 2019. Signed by Judge

04/29/2019 04/29/2019

Beth Labson Freeman on 3/18/2019.(blflc2S, COURT STAFF) (Filed on 3/18/2019) (Entered: 03/18/2019)
141 NOTICE of Voluntary Dismissal of Entire Action by D.P-O., Jacob Parenti, Susan Parenti (Attachments: # 1 Proposed Order)(Piovia-Scott, Joshua) (Filed on 4/29/2019) (Entered: 04/29/2019)
142 ORDER RE: DISMISSAL OF ENTIRE ACTION. Signed by Judge Beth Labson Freeman on 4/29/2019. (blflc2S, COURT STAFF) (Filed on 4/29/2019) (Entered: 04/29/2019)

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