case3:11-cv-02868-jst document146 filed12/20/13 page1 of 30 · plaintiffs, vs. county of alameda, a...

MICHAEL J. HADDAD, Esq./ State Bar #189114 1

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JULIA SHERWIN, Esq./State Bar #189268 GENEVIEVE K. GUERTIN, Esq./State Bar #262479 HADDAD & SHERWIN 505 Seventeenth Street Oakland, CA 94612 Telephone: (510) 452-5500 Facsimile: (510) 452-5510 Attorneys for Plaintiffs Joseph Harrison, Krystle Harrison, Martin Harrison, Jr., and Tiffany Harrison

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

M.H., a minor, through his Guardian Ad Litem, Michelle Henshaw, JOSEPH HARRISON, KRYSTLE HARRISON, MARTIN HARRISON, JR., and TIFFANY HARRISON, all Individually and as Co-Successors in Interest of Decedent MARTIN HARRISON, Plaintiffs,

vs.

COUNTY OF ALAMEDA, a municipal corporation; SHERIFF GREGORY J. AHERN, in his individual andofficial capacities; DEPUTIES MATTHEW AHLF, ALEJANDRO VALVERDE, JOSHUA SWETNAM, ROBERTO MARTINEZ, ZACHARY LITVINCHUK, RYAN MADIGAN, MICHAEL BARENO, FERNANDO ROJAS-CASTANEDA, SHAWN SOBRERO, SOLOMON UNUBUN; MEGAN HAST, A.S.W.; CORIZON HEALTH, INC., a Delaware corporation; HAROLD ORR, M.D.; ZELDA SANCHO, L.V.N.; and DOES 5-20, individually,

jointly and severally,

Defendants.

) )))))))))))))))))))))))))))))

Case No. C11-2868 JST (MEJ) PLAINTIFFS’ RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT BY DEFENDANT ZELDA SANCHO, L.V.N. Date: January 23, 2014 Time: 2:00 p.m. Place: Courtroom 9, 19th Floor Judge: Hon. Jon S. Tigar

No. C11-2868 JST (MEJ): PLAINTIFFS’ OPPO. TO SANCHO’S MOTION FOR SUMMARY JUDGMENT i

Case3:11-cv-02868-JST Document146 Filed12/20/13 Page1 of 30

No. C11-2868 JST (MEJ): PLAINTIFFS’ OPPO. TO SANCHO’S MOTION FOR SUMMARY JUDGMENT ii

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TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES ............................................................................................................. iii MEMORANDUM OF POINTS AND AUTHORITIES .....................................................................1 I. INTRODUCTION....................................................................................................................1 II. STATEMENT OF THE FACTS..............................................................................................2 A. Martin Harrison's Intake ..............................................................................................2

B. Defendant Sancho Failed to Institute CIWA Protocols ...............................................3

C. Martin Harrison Predictably Went Into Severe Alcohol Withdrawal .........................7

D. Corizon Terminated Ms. Sancho for Gross Negligence or Incompetence ..................8

E. Ms. Sancho Mutilated Mr. Harrison's Medical Record .............................................10

F. Plaintiffs Were Not Aware of Defendant Sancho’s Liability Until July 2012 ..........11

G. Relevant Procedural History ......................................................................................14

III. STANDARD OF REVIEW ...................................................................................................15

IV. LEGAL ARGUMENT ...........................................................................................................15

A. Defendant Sancho was Deliberately Indifferent to Mr. Harrison's Serious Medical Needs............................................................................................................15 B. Plaintiffs' Claims are Not Barred by the Statute of Limitations.. ................................20

C. Defendant Sancho Violated the Bane Act, California Civil Code § 52.1....................24

D. Plaintiffs Agree to Dismiss the Claim Against Defendant Sancho for Negligence ....25

V. CONCLUSION ......................................................................................................................25


TABLE OF AUTHORITIES 1

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Page No(s).

Federal Cases

Baker v. County of Sonoma, 08-cv-03433-EDL, 2009 WL 330937 (N.D. Cal. Feb. 10, 2009) ........18

Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010) ...............................................................................17

Bolbol v. City of Daly City, 2011 U.S. Dist. LEXIS 81228 (N.D. Cal. July 11, 2011) .....................22

Cabrales v. County of Los Angeles, 864 F.2d 1454 (9th Cir. 1988) ...................................................21

Conn v. City of Reno, 591 F.3d 1081 (9th Cir. 2010) .........................................................................16

Dillman v. Tuolumne County, 2013 U.S. Dist. LEXIS 65206 (E.D. Cal. May 7, 2013) ...................24

Estelle v. Gamble, 429 U.S. 97 (1976)...............................................................................................16

Farmer v. Brennan, 511 U.S. 825 (1994)...........................................................................................17

Funai Electric Company v. Daewoo Electrics Corporation, 2007 U.S. Dist. LEXIS 102668 (N.D. Cal. 2007) .....................................................................................................................................20

Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002), ......................................................15, 17

Harper v. Lawrence County, 592 F.3d 1227 (11th Cir. 2010) ............................................................16

Hudson v. McMillian, 503 U.S. 1 (1992) ...........................................................................................17

Hunt v. Dental Dep't, 865 F.2d 198 (9th Cir. 1989) ..........................................................................17

Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988) ...............................................................16

Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006).....................................................................................16

Lancaster v. Monroe County, Ala., 116 F.3d 1419 (11th Cir. 1997) ..................................................16

Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990) ..................................................................................16

M.H. v. County of Alameda, 2013 U.S. Dist. LEXIS 55902, (N.D. Cal. 2013) ...........................24, 25

Martell v. Trilogy, Ltd., 872 F.2d 322 (9th Cir. 1989) ........................................................................21

Mateos-Sandoval v. County of Sonoma, 2013 U.S. Dist. LEXIS 103549 (N.D. Cal. 2013) .............24

McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992)...........................................................................17

Mendocino Envt’l Center v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999)...............................15

No. C11-2868 JST (MEJ): PLAINTIFFS’ OPPO. TO SANCHO’S MOTION FOR SUMMARY JUDGMENT iii


Merritt v. County of Los Angeles, 875 F.2d 765 (9th Cir. 1989) ..................................................20, 21 1

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Milgard Tempering v. Selas Corporation of America, 902 F.2d 703 (9th Cir. 1990) .................20, 24

Mishler v. Nevada State Bd. of Medical Examiners, 1996 U.S. App. LEXIS 20590 (9th Cir. 1996).21

Redman v. County of San Diego, 942 F.2d 1435 (9th Cir.1991), cert. denied, 502 U.S. 1074 (1992)......................................................................................................................................................17

Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150-151 (2000) .........................................15

Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996) ........................................................18

Rodriguez v. City of Modesto, 2013 U.S. Dist. LEXIS 172958, (E.D. Cal. 2013) ............................24

Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994) .....................................................................................18

Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012) .........................................................................17, 19

Thomas v. Bible, 983 F.2d 152 (9th Cir. 1993)..................................................................................20

Thompson v. Upshur County, Tex., 245 F.3d 447 (5th Cir. 2001) ......................................................16

Whitley v. Albers, 475 U.S. 312 (1986)..............................................................................................17

California Cases

Amaral v. Cintas Corp., 163 Cal. App. 4th 1157 (2008) ....................................................................21

Barnes v. Wilson, 40 Cal. App. 3d 199 (1974)...................................................................................22

Barrington v. A.H. Robbins Co., 39 Cal. 3d 146 (1985) ....................................................................21

Bender v. County of Los Angeles, 217 Cal.App.4th 968 (2013) ........................................................24

Grudt v. City of Los Angeles, 2 Cal. 3d 575 (1970) ...........................................................................21

Hazel v. Hewlett, 201 Cal.App.3d 1458 (1988) .................................................................................24

Jones v. Kmart Corp., 17 Cal. 4th 329 (1998) ....................................................................................25

Little v. City of Richmond, 2013 U.S. Dist. LEXIS 149804 (N. D. Cal. 2013)..................................24

Venegas v. County of Los Angeles, 32 Cal.4th 820 (2004) ................................................................24

No. C11-2868 JST (MEJ): PLAINTIFFS’ OPPO. TO SANCHO’S MOTION FOR SUMMARY JUDGMENT iv


No. C11-2868 JST (MEJ): PLAINTIFFS’ OPPO. TO SANCHO’S MOTION FOR SUMMARY JUDGMENT v

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Statutes

California Code of Civil Procedure § 474..........................................................................................21

California Government Code § 845.6 ................................................................................................25

Rules

Federal Rule of Civil Procedure 15(c)(1)(B) .....................................................................................21


I. INTRODUCTION 1

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This is a civil rights wrongful death/survival action arising from the denial of appropriate

medical care to -- and use of excessive force against -- Martin Harrison, a 50-year-old detainee in

Santa Rita Jail who was suffering from severe, untreated alcohol withdrawal.

Defendant Zelda Sancho, LVN, did the intake nursing assessment on Mr. Harrison. Mr.

Harrison knew he had a drinking problem, and he wanted to recover. He informed Ms. Sancho that

he drinks alcohol every day, his last drink was that day, and he has a history of alcohol withdrawal.

Ms. Sancho failed to get the most basic further information the assessment required, such as the

type and amount of alcohol Mr. Harrison consumed. Ms. Sancho initially decided to put Mr.

Harrison on a Clinical Institute Withdrawal Assessment (CIWA) protocol for the safe detoxification

of alcohol-dependent inmates. However, Ms. Sancho changed her mind and decided to send Mr.

Harrison into the general population with no medical follow-up.

Untreated, Mr. Harrison went into Delirium Tremens, a life-threatening form of severe

alcohol withdrawal. As set forth in Plaintiffs’ response to the County Defendants’ motion for

summary judgment, instead of summoning medical care for Mr. Harrison as required, Defendant

Deputy Ahlf put him into an isolation cell. Twelve hours later, when another deputy requested

Defendant County mental health social worker Megan Hast to assess Mr. Harrison, Ms. Hast

repeatedly delayed for three hours. In the meantime, Mr. Harrison became paranoid due to his

Delirium Tremens and flooded his cell. Ten Defendant Deputies repeatedly Tased and beat him

into unconsciousness. He was sent to the hospital, where he remained unresponsive and died two

days later.

Defendant Sancho was later fired, in part, for her indefensible screening of Mr. Harrison and

failure to put him on the required CIWA detoxification protocols. Defendant Corizon reported her

to the Board of Licensed Vocational Nurses as grossly negligent or incompetent. Numerous issues

of material fact remain, precluding summary judgment.

No. C11-2868 JST (MEJ): PLAINTIFFS’ OPPO. TO SANCHO’S MOTION FOR SUMMARY JUDGMENT 1


II. STATEMENT OF FACTS 1

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A. Martin Harrison's Intake. An Oakland police officer stopped Decedent Martin Harrison

for jaywalking on August 13, 2010. (Ex. 1, Consolidated Arrest Report).1 A warrant check

revealed an outstanding warrant for failure to appear in court on a drunk driving charge, and Mr.

Harrison was arrested and taken to Glenn Dyer jail. (Id.). For the past few years, Mr. Harrison was

a chronic alcoholic, who drank every day. (Ex. 2, Martin Harrison, Jr. Dep.,Vol. 1, pp. 32:23 -

33:18; Ex. 3, Martin Harrison, Jr. Dep., Vol. 2, pp. 21:11 - 22:12; Ex. 4, Joseph Harrison Dep. Vol.

2, p. 26:10-15; Ex. 5, Krystle Harrison Dep. Vol. 1, pp. 40:18 - 41:13; Ex. 6, Tiffany Harrison Dep.

Vol. 1, pp. 34:1 - 35:20, 36:15 - 38:4). According to his children, Mr. Harrison favored brown hard

liquor such as brandy, and seldom drank beer. (Ex. 4, Joseph Harrison Dep. Vol. 2, pp. 23:20 -

24:2; Ex. 7, Krystle Harrison Dep. Vol. 2, pp. 23:21-23, 25:20 - 26:6; Ex. 3, Martin Harrison, Jr.

Dep., Vol. 2, p. 21:22-23; Ex. 8, Tiffany Harrison Dep. Vol. 2, p. 17:3-10).

Mr. Harrison knew he had an alcohol problem, wanted to heal from his dependence, and

cried when he and his son discussed the issue. (Ex. 3, Martin Harrison, Jr. Dep. Vol. 2, pp. 33:1-15,

35:4-16). He told his children that when he got arrested on the DUI warrant, he knew the jail would

detoxify him, and he planned to use the time in jail as a fresh start to begin healing from his alcohol

dependence. (Ex. 4, Joseph Harrison Dep. Vol. 2, pp. 26:25 - 28:3; Ex. 5, Krystle Harrison Dep.

Vol. 1, pp. 43:19 - 44:14; Ex. 3, Martin Harrison, Jr. Dep. Vol. 2, pp. 44:25 - 45:9; Ex. 6, Tiffany

Harrison Dep. Vol. 1, p. 48:2-23).

During Mr. Harrison’s intake medical screening at Glenn Dyer Jail, Defendant Zelda

Sancho, L.V.N., at the time an employee of Defendant Corizon (formerly Prison Health Services),

spent approximately 3 to 10 minutes with Mr. Harrison at 4:20 p.m. (Ex. 9, Zelda Sancho Dep., p.

60:6-18; 62:8-12; Ex. 10, Intake Screener). Mr. Harrison informed Ms. Sancho of his alcohol

dependence, including that he drinks every day, his last drink was that day, and he has a history of

alcohol withdrawal. (Ex. 10, Intake Screener; Ex. 9, Sancho Dep., pp. 26:17-20, 58:20-23). Ms.

Sancho failed to get the most basic further information required by the intake screening form,

including the type of alcohol Mr. Harrison drank and the amount, as required by item 21 on the

1 All exhibits are to the declaration of Julia Sherwin filed with Plaintiffs’ oppositions to summary judgment.



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form. (Ex. 10, Intake Screener; Ex. 11, Bill Wilson Dep., p. 32:4-8; Ex. 12, Lenore Gilbert Dep.,

pp. 80:16-21, 85:3-6).

Defendant Sancho has since admitted that Mr. Harrison also smelled like alcohol and had a

red, puffy face during his intake evaluation, critical facts she did not document. (Ex. 9, Sancho

Dep., pp. 73:8-24, 101:22 – 102:14; Ex. 12, Gilbert Dep., p. 85:11-14; Ex. 14, August 17, 2010,

Gilbert Memo to Wilson).

B. Defendant Sancho Failed to Institute CIWA Protocols. Defendant Sancho’s nursing

assessment note states, “with history of alcohol withdrawal” and “CIWA” -- Clinical Institute

Withdrawal Assessment. (Ex. 10, Intake Screener). If a person is at risk for developing alcohol

withdrawal symptoms, he should be put on CIWA for his safety. (Ex. 15, Corizon PMK Harold

Orr, Jr., M.D., Dep., pp. 38:23 - 39:19; Ex. 12, Gilbert Dep., 94:8-23).

A patient on CIWA withdrawal protocols will be seen at the next available medical visit,

and will be assessed every eight hours by a nurse who takes his vital signs and completes a

comprehensive symptom checklist to make sure the alcohol clears his system safely. If the patient

begins displaying symptoms of alcohol withdrawal, he will receive fluids, thiamine,

benzodiazepines, and multivitamins. (Ex. 15, Orr. PMK Dep., pp. 43:9 - 44:7; Ex. 17, CIWA Form

and Orders).

Ms. Sancho initially decided to place Mr. Harrison on the required CIWA protocol, but she

changed her mind and cross out “with history of alcohol withdrawal” and “CIWA.” (Ex. 10).

Ms. Sancho should have put Mr. Harrison on the CIWA protocol, as she planned to do

before she changed her mind. (Ex. 18, COR 33, Nurse Assessment Protocol Standardized

Procedures; Ex. 10; Ex. 9, Sancho Dep. p. 103:2-23; Ex. 15, Orr PMK Dep., pp. 39:20 - 40:3; Ex.

11, Wilson Dep., pp. 49:22 – 50:4; Ex. 12, Gilbert Dep., pp. 91:5 - 92:13).

Had Defendant Sancho not crossed out “with history of alcohol withdrawal” and “CIWA,”

Mr. Harrison would have been on CIWA monitoring protocols. (Ex. 12, Gilbert Dep., p. 81:2-8).

Instead, Ms. Sancho assigned Mr. Harrison a medical rating of "3," meaning he had no medical

needs and would receive no medical care, despite his obvious and serious medical needs. (Ex. 12,

Sancho Dep. pp. 112:24 – 113:8; Ex. 11, Wilson Dep., p. 55:11-15). Mr. Harrison was transferred

to Santa Rita Jail and assigned to the general population with no medical follow-up: no vital signs,



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lab tests, medication, or further examination by any medical personnel ever occurred, even after Mr.

Harrison issued a “sick call” slip requesting medical attention on August 15, 2010.2 (Ex. 19, Jail

Medical Records, PLF 293-305 & Sick Call Slip, PLF 303).

After Deputies Tased and beat Mr. Harrison into unconsciousness, Corizon’s Assistant

Health Services Administrator, Lenore Gilbert, questioned Ms. Sancho. In the August 17, 2010,

meeting, Ms. Gilbert noted that Ms. Sancho’s screening of Mr. Harrison was “not satisfactory or

complete.” Ms. Gilbert stated, “On the screener you documented that the inmate drank daily (q.d.)

and the last drink was today. This documentation is incomplete and unsatisfactory because there

was no type or amount documented.” (Ex. 14, 8/17/10 Gilbert Memo, pp. 1-2).

Ms. Gilbert then asked Ms. Sancho if Mr. Harrison told her what kind of alcohol he drank

and how much he drank. For the very first time, Ms. Sancho asserted that Mr. Harrison told her he

drank “two beers” and she “forgot” to document it. (Ex. 14, 8/17/10 Gilbert Memo, p. 2). Corizon

nurses are trained, “IF IT WAS NOT DOCUMENTED, IT DIDN’T HAPPEN!” (Ex. 21, COR 2968,

Documentation Policy, emphasis in original; Ex. 11, Wilson Dep., pp. 85:3 - 86:21). As Corizon

stated in its Employer Arbitration Brief contesting Ms. Sancho’s grievance of her termination, “[I]f

something is not written down, for all practical purposes, it did not happen, because to allow

otherwise would allow a nurse to fabricate facts after the fact, when faced with discipline.”

(Ex. 23, COR 1114, n. 22). 3

A jury can find that Ms. Sancho’s assertion that Mr. Harrison told her he ‘only drank two

beers,’ is a self serving statement she made up to protect herself, especially since Mr. Harrison’s

children confirm he was not a beer drinker and preferred to drink brandy. (Ex. 4, Joseph Harrison

Dep. Vol. 2, pp. 23:20 - 24:2; Ex. 7, Krystle Harrison Dep. Vol. 2, pp. 23:21-23, 25:20 - 26:6; Ex. 3,

Martin Harrison, Jr. Dep. Vol. 2, p. 21:22-23; Ex. 8, Tiffany Harrison Dep. Vol. 2, p. 17:3-10).

And, it is undisputed in this case that Ms. Sancho’s “two beers” excuse does not justify her

intentional failure to put Mr. Harrison on the required CIWA protocols. In the August 17, 2010,

2 Mr. Harrison’s sick call appointment was not scheduled until two days later, after he had already been Tased and severely beaten, and lay unconscious in the hospital. (Ex. 19; Ex 20, Med. Rcds). 3 After this incident, Defendants terminated Ms. Sancho’s employment, in part due to her incompetent handling of Martin Harrison’s intake assessment. Ms. Sancho grieved the termination, and it was upheld by the arbitrator. (Ex. 28, Arbitrator's Decision, COR 1023-1024).



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meeting, Corizon agents Lenore Gilbert and Nurse Manager Joel Smith told Ms. Sancho, even after

her “two beers” excuse, “Zelda, you failed to start the inmate on CIWA. You were aware of the

inmate’s alcohol use and yet you failed [to] take appropriate actions to ensure that he was

monitored. These failures are considered unsatisfactory performance by you as the nurse.

…[S]tarting inmates who drink alcohol regularly on a CIWA is critical for the safety of the

inmate.” (Ex. 14, 8/17/10 Gilbert memo, p. 2, Emphasis added).

According to Defendant Dr. Harold Orr, Jr., Defendant Corizon's Western Regional Medical

Director and the Medical Director for Alameda County Jails, someone who drinks at least two beers

every day, has a history of alcohol withdrawal and comes into the jail smelling of alcohol with a

red, puffy face, should be provided medication and nutritional support in order to safely detox from

alcohol. (Ex. 15, Orr PMK Dep., p. 95:10-19).

Furthermore, Defendant Orr admits that Mr. Harrison should have been placed on CIWA

protocols, and Defendant Sancho's intake assessment of Mr. Harrison was deficient because she did

not start Mr. Harrison on CIWA. (Ex. 15, Orr PMK Dep. pp. 39:20 - 40:3).

According to Defendant Corizon's own training on alcohol withdrawal, someone who drinks

just two beers a day is at significant risk of alcohol withdrawal and "whenever there is any reason to

believe that [an inmate] is at risk of alcohol withdrawal," that inmate should be placed on CIWA.

(Ex. 23, Employer's Arbitration Brief, pp. 18 - 20; Ex. 24, 2010 Continuing Education Program on

Substance Abuse and Withdrawal; Ex. 12, Gilbert Dep., 94:8-23). Lenore Gilbert acknowledged

that a person who drinks two beers a day, every day, and then stops is bound to have a

"physiological response." (Ex. 12, Gilbert Dep., pp. 21:8 – 22:4).

Ms. Gilbert’s supervisor, Corizon Health Services Administrator Bill Wilson, confirmed that

Zelda Sancho should have put Martin Harrison on CIWA even if Mr. Harrison told her he only

drank two beers a day. (Ex. 11, Wilson Dep., pp. 49:22 – 50:4). And, even Defendant Sancho

herself admitted that an inmate stating that he drinks alcohol every day is “probably” enough

to require that he be put on CIWA. (Ex. 25, Sancho Arb’n Testimony, COR 1842).4

4 Ms. Sancho denied that fact in her in deposition in this case. (Ex. 9, Sancho Dep., p. 78:6-25). In her Declaration submitted in support of the instant Motion, Ms. Sancho similarly contradicts her sworn arbitration testimony. As the Ninth Circuit has held, however, defendants may not file defense witness declarations that contradict their sworn testimony, and courts should disregard such



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Additionally, Defendant Sancho had been trained to recognize the risk factors for alcohol

withdrawal, and the utmost importance of these clinical skills, as recently as January 2010. (Ex. 27,

1/21/10 All Staff Meeting Minutes; Ex. 24, Substance Abuse and Withdrawal Training; Ex. 9,

Sancho Dep. pp. 11:5 - 13:20). The January 2010 training included recognizing the risk factors for

alcohol withdrawal, evaluating patients for alcohol dependence, recognizing the signs and

symptoms of alcohol withdrawal, and how to accurately complete, interpret and initiate care using

the CIWA form. (Ex. 24, COR 1966). Ms. Sancho was trained that "Stage I" of alcohol withdrawal

does not begin until six-to-eight hours after an individual's last drink, and a thorough intake

screening, including observations of the patient's general appearance and responses to questions, is

necessary. (Ex. 24, COR 1967, 1969, 1977). The training also explicitly stated:

"In Correctional Health Care, the likelihood of encountering an inmate with a history of substance abuse and risk factors for withdrawal is significant. Recognizing the risk factors and the signs and symptoms of withdrawal is a "core competency" for Correctional Health Care Professionals and an essential component of inmate patient safety and risk management." (Ex. 24, COR 1978, emphasis added). Defendant Sancho admits she was trained that she was required to ask the patient not only

the type and amount of alcohol he uses, but also the frequency of usage, how long the patient has

been a drinker, what time the patient last used alcohol, and what side effects he had in the past when

ceasing alcohol use. (Ex. 9, Sancho dep. pp. 42:10 – 43:3; Ex. 24, COR 1967,1969, 1977).

Ms. Sancho knew that Stage I symptoms of alcohol withdrawal do not appear until six to

eight hours after the last drink. (Ex. 9, Sancho Dep., pp. 86:21 – 87:22). Furthermore, Ms. Sancho

knew that she was required to put an inmate on CIWA protocol not only if the inmate was currently

experiencing alcohol withdrawal, but also if the inmate was at risk for going into alcohol

withdrawal. (Ex. 9, Sancho Dep., p. 43:4-10).

Contrary to her training and Corizon procedures, Ms. Sancho failed to ask what kind of

alcohol Mr. Harrison drank, how much he drank every day, how many years he’d been drinking,

how much and what kind of alcohol he had consumed prior to being arrested. She also failed to

note that he smelled like alcohol and his face was red and puffy. (Ex. 18, COR 32, Nurse

declarations. See Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991); Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1462 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986).



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Assessment Protocol Standardized Procedures; Ex. 9, Sancho Dep., 69:24 - 74:5; Ex. 14, 8/17/10

Gilbert Memo).

Ms. Sancho has subsequently claimed that Mr. Harrison "assured" her that he had no

problems with alcohol withdrawal and displayed no signs of alcohol withdrawal at that time. (Ex.

9, Sancho Dep., pp. 69:24 - 75:10). However, she never documented these statements, and “IF IT

WAS NOT DOCUMENTED, IT DIDN’T HAPPEN!” (Ex. 21, COR 2968).

Even Corizon found Ms. Sancho’s excuses incredible and ultimately terminated her

employment, for failing to substitute her own clinical judgment for Mr. Harrison's alleged

statements regarding his alcohol withdrawal history, and for failing to put Mr. Harrison on CIWA

protocols. (Ex. 29, Termination Papers; Ex. 13, Gilbert’s PMK dep, pp. 122:13 - 123:13; Ex. 11,

Wilson Dep., pp. 58:23 - 60:22). An inmate who drinks alcohol regularly must be started on CIWA

because it is "critical for the safety of the inmate." (Ex. 23, Corizon’s Arbitration Brief, pp. 23-24;

Ex. 14).

Defendant Sancho knew that an inmate who is alcohol dependent and goes into untreated

alcohol withdrawal can progress to severe alcohol withdrawal, a life-threatening medical

emergency. (Ex. 9, Sancho Dep, p. 43:11-20; Ex. 24, 1/10 Training). Despite this knowledge --

and the fact that she knew, even based on the limited information she asserts she had, that Mr.

Harrison was at risk for alcohol withdrawal -- Defendant Sancho chose not to institute CIWA

protocols for Mr. Harrison.

C. Martin Harrison Predictably Went Into Severe Alcohol Withdrawal. If Defendant

Sancho had put Mr. Harrison on CIWA protocols, severe withdrawal would have been unlikely.

Defendant Orr testified that 90 percent of patients put on CIWA protocols are detoxed safely

without going into Delirium Tremens: "it's effective therapy. It works. If you get it started early, it

works. … It is a very effective therapy, actually." (Ex. 15, Orr PMK Dep., pp. 175:12 - 177:8).

Most cases of severe alcohol withdrawal occur within 72 hours of the person’s last drink,

and Martin Harrison’s severe withdrawal occurred right on schedule. (Ex. 24, January 2010 In-

Service Training; Ex. 15, Orr PMK Dep. p. 70:6-8).

Defendant Deputy Ahlf testified that Mr. Harrison twice requested medication in the pill call

line, but there was no medication order for Mr. Harrison. (Ex. 30, Ahlf Dep., pp. 50:24 - 51:9, 53:1



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- 55:10). The first time, Ahlf gave Mr. Harrison a sick call slip and told him to fill it out. (Ex. 30,

Ahlf Dep. p. 53:6-15). On August 15, 2010, Mr. Harrison followed Ahlf’s instructions and

completed a sick call request form, stating “I was told to.” (Ex. 19, Sick call slip). He never saw

any medical care provider. (Ex. 19; Ex. 20, Med. Recs.).

By around 4:00 a.m. on August 16, 2010, almost three days after Defendants took him into

custody, Mr. Harrison was displaying obvious signs of severe alcohol withdrawal, including bizarre

behavior, hallucinations, anxiety, disorientation to time and place, and incoherent mumbling. (Ex.

30, Ahlf, 58:5-9; Ex. 31, Hast, 31:2-6, 35:18-23). Defendants Sancho and Orr confirm that these

symptoms are consistent with Delirium Tremens, a life-threatening medical emergency. (Ex. 9,

Sancho Dep. pp. 43:17-20, 46:20 - 47:3, 52:15 - 53:22; Ex. 15, Orr PMK Dep. pp. 69:2 - 70:5).

As discussed more fully in Plaintiffs’ opposition to the County Defendants’ motion for

summary judgment, Ahlf put Mr. Harrison into an isolation cell and failed to summon the required

medical care. Fifteen hours later, Mr. Harrison was delusionally paranoid and flooded his cell,

resulting in the ten Deputy Defendants Tasing him repeatedly and beating him into

unconsciousness.

D. Corizon Terminated Ms. Sancho for Gross Negligence or Incompetence. At the August

17, 2010, counseling session with Corizon manager Lenore Gilbert, Ms. Gilbert instructed Ms.

Sancho to put all inmates who drink alcohol regularly on CIWA withdrawal protocols for their

safety. (Ex. 14, 8/17/10 memo p. 2).

Just four days later, Ms. Sancho again failed to ask a patient what type and amount of

alcohol he drank. She also abjectly refused to follow a physician’s order with respect to another

patient. At the August 21, 2010, meeting concerning her repeated intake assessment failure, when

asked why she again failed to document this essential information even after being told to do so four

days earlier, Ms. Sancho stated, “Does this mean that I don’t have to work there (ITR [Intake,

Transfer and Release, or Booking]) anymore?” (Ex. 32, 8/31/10 Gilbert Memo).

Ms. Sancho’s question about not having to work in the booking area any more caused Ms.

Gilbert to believe Ms. Sancho was looking for a way out of working in booking, and “Is that why

she is doing an inadequate job?” (Ex. 32, 8/31/10 Gilbert Memo).



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Corizon finally terminated Ms. Sancho’s employment, in part due to her inadequate

assessment of Martin Harrison and failure to put him on CIWA. (Ex. 13, Gilbert PMK Dep, pp.

122:13 - 123:13). Corizon reported to the California Board of Vocational Nursing that Ms. Sancho

displayed gross negligence or incompetence. (Ex. 33, Henson Letter to CBVNP, COR 1365-1366).

Corizon’s managing agents, Lenore Gilbert, Assistant Health Services Administrator, and

Bill Wilson, Health Services Administrator, testified strongly to Zelda Sancho’s deliberate

indifference to Martin Harrison’s serious medical needs, during the arbitration concerning the

termination of Ms. Sancho’s employment.

The intake screening form is a “minimum data set” nurses must obtain, and Mr. Wilson was

“very distressed” that Ms. Sancho failed to include all of the required information. (Ex. 11, Wilson

Dep., pp. 29:16 – 30:1; Ex. 34, Wilson Arb. Testimony, COR 1633-34). Defendant Sancho’s

failure to document the type of alcohol or amount of alcohol Martin Harrison consumed was a

failure to “get the basic, basic, basic, nursing information required to make a proper

assessment.” (Ex. 11, Wilson Dep., pp. 54:18 – 55:1; Ex. 34, Wilson Arb'n Testimony, COR 1651;

Ex. 10, Intake Screener; Ex 25, Gilbert Arb. Testimony, COR 1519-1520, 1521, 1534). Ms.

Sancho’s failure to complete those two questions presented “life and death issues:”

It may seem like two questions, but that can lead to life or death if you don’t get answers to those two questions and follow up appropriately. And that’s what we had here.

(Ex. 34, Wilson Arb. Testimony, COR 1677, emphasis added).

While Ms. Sancho’s post-hoc excuse is that she “forgot” to document that Martin Harrison

told her he drank “two beers” a day, she admits she failed to ask what amount of beer – such as 40

ounce or 12 ounce – or what kind of beer – such as malt liquor or light beer. (Ex. 26, COR 1846;

Ex. 9, Sancho Dep., pp. 71:16 – 72:18).

The fact that Mr. Harrison still smelled of alcohol and had a red, puffy face on intake should

have prompted Ms. Sancho, who believes “most of the inmates lie,” to use her own clinical

judgment and put Mr. Harrison on CIWA. She offered “no reason” and “no excuse” for her failure.

(Ex. 9, Sancho Dep. pp. 45:20 – 46:6; Ex. 12, Gilbert Dep., pp. 86:3-9, 93:15-24; Ex. 14, 8/17/10

Gilbert Memo; Ex. 32, 8/31/10 Gilbert Memo; Ex. 25, COR 1535-1536).



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Ms. Gilbert was also critical of Ms. Sancho’s knowledge that Martin Harrison’s vital signs

were elevated and Ms. Sancho “said she did nothing about the abnormal vital signs.” (Ex. 9, Gilbert

Dep., p. 95:6-8; Ex. 25, COR 1537).

Mr. Wilson testified that Ms. Sancho “had no justifiable defense for the manner in which the

intake screenings had been carried out.” (Ex. 11, Wilson Dep., p. 54:11-17; Ex. 34, COR 1632).

Ms. Sancho “gave no defense for what I saw as an egregious breach of medical care.” (Ex. 11,

Wilson Dep., p. 89:10-22; Ex. 34, COR 1633).

Even with the limited information she did document, Ms. Sancho should not have assigned

Martin Harrison to a Level 3 care, which meant he would go into the general population with no

medical care whatsoever. Martin Harrison should not have been a Level 3, “period.” (Ex. 11,

Wilson Dep., p. 55:2-25; Ex. 34, COR 1652).

Mr. Wilson testified, “without a doubt” Ms. Sancho jeopardized patient safety, and “I did

not in any way, shape, or form feel comfortable having nurse Zelda go back and interact with

patients.” (Ex. 11, Wilson Dep., p. 60:16-22; Ex. 34, COR 1635-1636).

In addition, Corizon made several factual admissions in its arbitration brief and submissions,

discussed at pp. 12-13 of Plaintiffs’ opposition to Corizon’s motion for summary judgment.

The labor arbitrator found the following facts:

• “When a nurse determines that there might be any reason to believe that there may be some

risk that the inmate could experience withdrawal symptoms, they are to employ the Clinical

Institute Withdrawal Assessment (CIWA)” (Ex. 28, COR 1019);

• Ms. Sancho was aware of Martin Harrison’s alcohol use “and yet failed to take appropriate

actions to ensure that he was monitored” (Ex. 28, COR 1020);

• Ms. Sancho’s “admitted failures with respect to the two patients [Martin Harrison and

another patient] were serious and jeopardized the care of these patients.” (Ex. 28, COR 1024); and

• Ms. Sancho’s “repeated failure to follow assessment protocol jeopardizes patient care and

creates an unacceptable level of risk for the future if any more inmates are placed under her care”

(Ex. 28, COR 1034).

E. Ms. Sancho Mutilated Mr. Harrison's Medical Record. Defendant Sancho initially wrote

that Mr. Harrison would be placed on a CIWA protocol. (Ex. 10, Intake Screener). Instead of



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placing him on CIWA, however, Defendant Sancho at some point wrote a line through the portion

of her notes that documented Mr. Harrison's history of alcohol withdrawal and need for CIWA

protocol, with merely the word "error" written over CIWA. (Ex. 10). According to Corizon's own

training, Ms. Sancho was required to add a note in the margin stating why she crossed out this entry,

which she failed to do. (Ex. 35, Corizon PMK Terri Granlund, RN, Dep., p. 40:7-11).

Additionally, Ms. Sancho's deletion of her notation by scratching it out constitutes impermissible

“mutilation” of the medical record. (Ex. 35, Granlund Dep., 40:12-19).

Defendant Sancho claims that she crossed out her notations regarding Mr. Harrison’s history

of alcohol withdrawal and need for CIWA protocol immediately when Mr. Harrison “assured her”

that he had no “problems of alcohol withdrawal.” (Ex. 9, Sancho Dep., pp. 79:21 – 80:16).

However, Plaintiffs' forensic document examiner, Patricia Fisher, examined Mr. Harrison's original

medical record and determined that the "cross-out was written at a later time and the word, 'error'

was not written simultaneously." (Declaration of Patricia Fisher, Ex. A, Fisher Report, p. 2). No

Defendant offers contrary expert testimony.

Moreover, Mr. Harrison knew he had a drinking problem, wanted to recover, and planned to

use time in jail as a forced detox so he could begin his recovery. (Ex. 4, Joseph Harrison Dep. Vol.

2, pp. 26:25 - 28:3; Ex. 7, Krystle Harrison Dep. Vol. 1, pp. 43:19 - 44:14; Ex. 3, Martin Harrison,

Jr. Dep. Vol. 2, pp. 44:25 - 45:9; Ex. 6, Tiffany Harrison Dep. Vol. 1, p. 48:2-23). Mr. Harrison’s

oldest son, Martin, Jr., testified to the many times he saw his father withdrawing from alcohol. (Ex.

3, Martin Harrison, Jr. Dep. Vol. 2, pp. 13:3 - 14:6; 15:3-25). There would be no reason for Mr.

Harrison not to tell Ms. Sancho about his alcohol dependence. A jury can find Defendant Sancho’s

assertion that Mr. Harrison had no history of alcohol withdrawal is something she made up in a

disciplinary meeting, to protect her job.

F. Plaintiffs Were Not Aware of Defendant Sancho’s Liability Until July 2012. Mr.

Harrison's minor son, M.H., filed the original complaint in this matter against the County of

Alameda, Sheriff Gregory Ahern, Defendant Ahlf, and Does 1-100 on June 10, 2011. (Doc. No. 1).

M.H. was represented by the Law Offices of John Burris. Mr. Harrison’s four other children

retained separate counsel, Haddad & Sherwin.



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Haddad & Sherwin ordered Martin Harrison’s medical records from Santa Rita Jail on

October 4, 2010. (Altomare Decl. ¶ 4). Lenore Gilbert called Plaintiffs’ counsel, Gina Altomare,

and told her to send the request to Ms. Gilbert’s attention at “PHS Correctional Healthcare,” still at

Santa Rita Jail. Ms. Gilbert did not tell Ms. Altomare that PHS Correctional Healthcare is a

separate corporation and is not a part of Alameda County. Ms. Gilbert did not tell Ms. Altomare

that PHS Correctional Healthcare employs the medical staff at Alameda County jails, or that it

provides the medical care at the jails. Ms. Gilbert did not even tell Ms. Altomare to send the

request to the correct entity, “PHS Correctional Healthcare, Inc.” (Altomare Decl. ¶ 5).

Ms. Gilbert was directly involved in Corizon’s investigation into Martin Harrison’s death,

knew full well that Plaintiffs’ counsel were ordering Mr. Harrison’s records in connection with his

death, and never revealed facts that would have alerted Plaintiffs’ counsel to the fact that Corizon

was responsible and a separate entity.

Before producing the medical chart to Plaintiffs’ counsel, Corizon health information clerk

Sylvia Schwartz removed a note from mental health social worker Megan Hast that stated that

Martin Harrison was in fact placed on CIWA protocols. ( Ex. 20, Hast Note; Ex. 12, Gilbert Dep

pp. 35:16 - 37:2, 39:25, 41:6 - 42:19). The records were scant, and did not reveal which medical

personnel were deliberately indifferent to Martin Harrison’s serious medical needs. (Ex. 19, Martin

C. Harrison's Medical Chart).

These four Plaintiffs filed their Government Tort claim on February 7, 2011, in which they

alleged deliberate indifference to Martin Harrison’s serious medical needs. (Ex. 36). Defendant

County never informed Plaintiffs that another company provided the medical care for Alameda

County inmates until June 1, 2012. (Altomare Decl. ¶¶ 4-18).

On May 24, 2011, Plaintiffs requested Mr. Harrison’s jail records. On May 26, 2011,

Randall Andrada responded that he had been retained to respond to Plaintiffs’ request for Mr.

Harrison’s jail records. Plaintiffs’ counsel followed up on July 27, 2011, after Mr. Andrada had not

produced the records. He did not produce them until August 9, 2011. (Altomare Decl. ¶¶ 7, 10).

In California, “PHS,” later known as Corizon, only had contracts for medical care in

Alameda County and Santa Barbara County. (Ex. 15, Orr PMK Dep pp. 16:3-18). Plaintiffs’

counsel had handled jail medical cases in other counties in California, but never in Alameda County



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nor Santa Barbara County. (Sherwin Decl. ¶ 24). There is no reason Plaintiffs’ counsel should

have speculated that the jail medical care was provided by a separate corporation, especially when

that corporation had done nothing to make itself known.

Plaintiffs did not join this action until September 16, 2011, when the parties stipulated to

allow Plaintiff M.H. to file a First Amended Complaint adding Mr. Harrison's four adult children,

Joseph Harrison, Krystle Harrison, Martin Harrison Jr., and Tiffany Harrison, as Plaintiffs, as well

as substituting named Defendant deputies in place of Doe defendants. (Doc. Nos. 13 and 14).

Plaintiffs filed the First Amended Complaint on September 20, 2011, which was these Plaintiffs’

first complaint. (Docket No. 16).

These Plaintiffs made claims for deliberate indifference to Martin Harrison’s serious

medical needs, and alleged that Doe Defendants were responsible. (FAC ¶¶ 25-27, 34, 38, 44, 51).

In its Answer, Defendant County never revealed that it had contracted the medical care to a private

company. Rather, in response to Plaintiff's allegations that the County and Doe Defendants were

deliberately indifferent to Martin Harrison’s serious medical needs, the County responded only that

it denied the allegations and that "defendants admit that Martin Harrison came to be at Santa Rita

Jail following an arrest on a warrant for failure to appear. Defendants admit that Mr. Harrison was

held in an isolation cell for certain periods. Defendants deny the remaining allegations." (County

Defendants' Answer to First Amended Complaint ¶23. See also ¶¶24-25, 30, 32, 34, 36.)

On May 18, 2012, Plaintiffs’ counsel asked Alameda County’s counsel for dates for

depositions, including of medical witnesses Sancho, Dr. Maria Magat, and Megan Hast. (Altomare

Decl., ¶14, Ex. D). Defendant County’s counsel did not reveal that two of the medical witnesses

were employed by a different entity. (Altomare Decl., Ex. D).

On May 30, 2012, Plaintiff’s counsel again inquired about the depositions, asking the

County’s counsel to let her know whether the proposed deposition schedule “works for you and

your clients.” (Altomare Decl., ¶16, Ex. D). That day, for the first time, the County’s counsel

Valerie Ly stated, “The fact that PHS is a separate entity from the ACSO may cause a few hurdles.”

(Altomare Decl., ¶17, Ex. D). Ms. Ly only stated that “PHS” was separate from the Alameda

County Sheriff’s Office, not the County itself.



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On June 1, 2012, Ms. Ly informed Ms. Altomare by email for the first time that Corizon

employed two of the medical witnesses Plaintiffs wanted to depose. (Altomare Decl., ¶19, Ex. D).

The same day, Ms. Altomare made her first contact with counsel for Corizon, stating that she had

just been informed that witnesses Sancho and Dr. Magat are employed by Corizon. (Altomare

Decl., ¶¶ 19-20, Ex. D). It took several weeks to schedule the witnesses’ depositions. (Altomare

Decl., ¶¶20 - 22, Ex. D).

Plaintiffs did not get Megan Hast’s medical chart note until the County produced the records

with their Initial Disclosures on November 21, 2011.

Because of the scant records, Plaintiffs did not learn of the role and liability of Defendant

Sancho in Mr. Harrison's death until the July 27, 2012, deposition of Maria Magat, M.D., a staff

physician at the Santa Rita Jail employed by Defendant Corizon. Prior to Dr. Magat’s deposition,

Plaintiffs did not know who had crossed out the notations for "CIWA" and "history of alcohol

withdrawal" on Mr. Harrison's intake form, nor did they know who was responsible for failing to

implement the CIWA protocols that Ms. Hast’s note said were instituted.

It was not until Dr. Magat's deposition that Plaintiffs learned significant and specific facts

concerning Nurse Sancho’s failures, including the following: the cursory and incomplete intake

screening of Mr. Harrison, the failure to follow through with the CIWA protocol for Mr. Harrison,

the failure to complete a CIWA screening questionnaire for Mr. Harrison, the fact that Zelda Sancho

was responsible for the failure to put Mr. Harrison on CIWA, the failure to check Mr. Harrison’s

blood alcohol levels or perform any laboratory tests, the failure to request any medication for Mr.

Harrison to prevent severe alcohol withdrawal, and the failure to summon any medical personnel to

follow up with Mr. Harrison after Defendant Sancho’s cursory and incomplete intake. (Ex. 38,

Magat Dep., pp. 37:4-23, 44:7-9, 48:21-25, 49:1-6, 55:18-59:5, 62:6-12.).

Following this discovery, Plaintiffs promptly informed the County Defendants, on August

23, 2012, of their intent to file a Second Amended Complaint naming Defendants Sancho, Corizon,

Orr, and Hast. When the County Defendants would not stipulate Plaintiffs' amended complaint,

Plaintiffs promptly filed a Motion to Amend on September 12, 2012.

G. Relevant Procedural History. Judge Claudia Wilken of this Court granted Plaintiffs'

Motion for Leave to Amend on November 16, 2012. (Doc. 45). Plaintiffs promptly filed their



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Second Amended Complaint, substituting Defendants Hast, Sancho, Corizon and Orr for Doe

Defendants on November 19, 2012. (Doc. No. 46). On April 18, 2013, this Court denied

Defendants Sancho, Corizon and Orr's Motion to Dismiss, and rejected raised many of the same

arguments Defendants raise again here. (Doc. No. 76). Defendant’s current motion is an improper,

late motion for reconsideration.

III. STANDARD OF REVIEW

In Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150-151 (2000), the Supreme

Court noted the standards for a motion for summary judgment:

[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. [ ] Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. [ ] Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.

(emphasis added, internal citations and quotations omitted). Questions involving state of mind are

generally factual issues inappropriate for resolution by summary judgment. Mendocino Envt’l

Center v. Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999). Defendant states the facts in the

light most favorable to herself, omits material facts that do not favor her, and improperly asks this

Court to find her excuses credible.

IV. LEGAL ARGUMENT

A. Defendant Sancho was Deliberately Indifferent to Mr. Harrison's Serious Medical Needs.

Defendants owed Martin Harrison the duty, under the Fourteenth Amendment and the California

Constitution, Article 1, section 17, to provide for his serious medical needs. Neither Mr. Harrison

nor his family were in any position to provide for his needs. Gibson v. County of Washoe, 290 F.3d

1175 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003). Since Mr. Harrison was a pretrial

detainee, his right to receive care for his serious medical needs derived from the Due Process Clause

of the Fourteenth Amendment rather than the Eighth Amendment. Id, at 1187.



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The Ninth Circuit summarized the deliberate indifference claim in Conn v. City of Reno, 591

F.3d 1081, 1091 (9th Cir. 2010) (emphasis added):

When an individual is taken into custody and thereby deprived of her liberty, the officials who hold her against her will are constitutionally obligated to respond if a serious medical need should arise. If, with deliberate indifference, these officials fail to respond appropriately and instead act in a manner that will foreseeably result in harm, they violate her due process rights. The same is true when a municipality, with deliberate indifference, fails to train its law enforcement officers or fails to adopt and implement policies when it is highly predictable that such inaction will result in constitutional violations.

This Court already has found that Mr. Harrison had the right not to be subjected to deliberate

indifference to his serious medical needs in jail, citing Estelle v. Gamble, 429 U.S. 97, 101 (1976)

and Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006):

In order to state a deliberate indifference claim, Plaintiffs must first show a “serious medical need” such that “failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Id. (quotations and citations omitted). Next, Plaintiffs must show that Defendants' response to the serious medical need was deliberately indifferent. Id. The second prong may be established by allegations of “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Id. Deliberate indifference may be shown where prison officials or practitioners “deny, delay or intentionally interfere with medical treatment.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). In contrast, “mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights.” Id.

(Doc. 76, 4/18/13 Order Regarding Motion to Dismiss, pp. 7-8). Alcohol withdrawal and the

prevention and treatment of Delirium Tremens constitute serious medical needs. Thompson v.

Upshur County, Tex., 245 F.3d 447, 457 (5th Cir. 2001). See also, Lancaster v. Monroe County,

Ala., 116 F.3d 1419, 1425 (11th Cir. 1997) (“a jail official who is aware of but ignores the dangers

of acute alcohol withdrawal and waits for a manifest emergency before obtaining medical care is

deliberately indifferent”); Harper v. Lawrence County, 592 F.3d 1227, 1235-37 (11th Cir. 2010)

(denying qualified immunity where decedent did not receive any medical care for his severe alcohol

withdrawal). Liscio v. Warren, 901 F.2d 274, 276-77 (2d Cir. 1990) (doctor failed to inquire into

cause of arrestee’s delirium and failed to diagnose alcohol withdrawal).5

5 Defendant Harold Orr, M.D. – Corizon’s Medical Director and “PMK” about Defendants’ policies concerning alcohol withdrawal in Alameda County jails – admits that the need to have withdrawal



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“‘Deliberate indifference’ is the conscious choice to disregard the consequences of one’s

acts or omissions.” Ninth Cir. Model Civil Jury Instruction 9.7. In the context of a prisoner’s

medical needs claim, Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), explains:

[D]eliberate indifference requires "more than ordinary lack of due care for the prisoner's interests or safety." Farmer [v. Brennan], 511 U.S. [825,] at 835 [(1994)] (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986)). The state of mind for deliberate indifference is subjective recklessness. See id. at 835-41. But the standard is "less stringent in cases involving a prisoner's medical needs . . . because 'the State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (partially overruled on other grounds) (quoting Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992)) (alterations omitted). Similarly, "[i]n deciding whether there has been deliberate indifference to an inmate's serious medical needs, we need not defer to the judgment of prison doctors or administrators." Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). “[A] prisoner need not prove that he was completely denied medical care in order to

prevail.” Id, at 986.6 Nor does deliberate indifference require express intent to harm. Redman v.

County of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991), cert. denied, 502 U.S. 1074 (1992).

“In order to comply with their duty not to engage in acts evidencing deliberate indifference

to inmates' medical and psychiatric needs, jails must provide medical staff who are ‘competent to

deal with prisoners' problems.’” Gibson, 290 F.3d at 1187. Deliberate indifference can be proven

by the failure to medically screen a new jail inmate with serious medical needs. Id. at 1189-93.

And this Court has already ruled (Doc. 76, pp. 8-9):

Plaintiffs' allegations here, if true, establish that Corizon and Nurse Sancho knew that Mr. Harrison was at risk of a serious medical condition, that they violated prison and County procedure in failing to attend to his medical needs, and that they failed to satisfy the medical standard of care, which resulted in substantial harm. Viewed in the light most favorable to Plaintiffs, the allegations in the Second Amended Complaint sufficiently state a claim that Nurse Sancho was deliberately indifferent to Mr. Harrison's medical needs. See Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989) (prisoner's deliberate indifference allegations were sufficient where he alleged “prison officials were aware of his bleeding gums, breaking teeth,

protocols in place to safely detoxify an alcohol-dependent person is a serious medical need. (Orr PMK Dep., 95:20-24). 6 Thus, the standard is not whether the defendant “ignored” the inmate, as some Defendants claim, and the Seventh Circuit case, Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010), is not controlling.



and his inability to eat properly, yet failed to take any action to relieve his pain or to prescribe a soft food diet until new dentures could be fitted.”); Baker v. County of Sonoma, 08-cv-03433-EDL, 2009 WL 330937, at *4 (N.D. Cal. Feb. 10, 2009) (allegations of prison officials denying prisoner his pain medication were sufficient to state deliberate indifference claim).

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As Corizon admitted when it terminated Defendant Sancho and defended against her

grievance, Defendant Sancho knew that Mr. Harrison was at risk of alcohol withdrawal, and knew

that Delirium Tremens is a life-threatening medical emergency that can result from untreated

alcohol withdrawal. It is undisputed that the need for safe detoxification from alcohol is a serious

medical need. Ms. Sancho deliberately violated Corizon and County policy when she chose not to

put Mr. Harrison on CIWA protocol, causing him to go into severe alcohol withdrawal, which

prompted the Deputy Defendants’ Tasing and beating of him. Moreover, Corizon reported Ms.

Sancho to the nursing board as grossly negligent or incompetent. (Ex. 33, COR 1366).

Additionally, while state of mind should be resolved by a jury, the evidence here shows that

Defendant Sancho had a sufficiently culpable state of mind. She had enough information to know

that she needed to put Mr. Harrison on CIWA, she thought to do so, and she purposefully did not do

so, denying Mr. Harrison medical care for his serious medical needs.

As in a wrongful death case based on police misconduct, the Ninth Circuit requires careful

consideration of all evidence and inferences favoring the decedent, who cannot speak for himself:

Cases involving an officer’s use of deadly force can pose difficult problems for determining the reasonableness of the officer’s conduct because the officer … is often the only surviving eyewitness…. In such cases, the court must examine all of the evidence in the record as well as any expert testimony to determine if the officer’s story is internally consistent and consistent with other known facts.

Reynolds v. County of San Diego, 84 F.3d 1162, 1169 (9th Cir. 1996) (emphasis added). The Court

“may not simply accept what may be a self-serving account” by the defendant. Scott v. Henrich, 39

F.3d 912, 915 (9th Cir. 1994). It must also look at the circumstantial evidence that, if believed,

would tend to discredit the defendant’s story, and consider whether this evidence could convince a

jury that the defendant acted unreasonably. Id.

Mr. Harrison is deceased as a result of Defendants' actions and is therefore unable to

contradict the inconsistent statements and excuses that Defendant Sancho has offered since his



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death. The Court, therefore, should not simply accept Defendant Sancho's self-serving account of

what occurred in this matter, or the blame that Defendants now heap on Mr. Harrison.

Defendant Sancho's claims that she "didn't think" to put Mr. Harrison on CIWA, or that she simply

"forgot" to ask him pertinent information regarding the nature of his alcohol consumption rings

hollow in the face of the evidence. The fact that Defendant Sancho wrote down CIWA on Mr.

Harrison's intake form shows that she did, in fact, think to place him on the protocol.

Furthermore, the questions she was expected to ask Mr. Harrison regarding his alcohol use

were routine and expected to be asked of every inmate who reported alcohol consumption. So

implausible are Defendant Sancho's excuses that, when offered to her supervisors before being

terminated by Defendant Corizon, Ms. Gilbert suspected that Defendant Sancho's incompetence

with respect to her screening of Mr. Harrison and another subsequent inmate may have been

intentional: "Zelda's question about [whether she could stop] working in booking leads me to

believe that she may be looking for a way out of working where she is assigned. Is that why she

was doing an inadequate job?" (Ex. 32, COR 1193).

The jury can find that Defendant Sancho intentionally did an incompetent assessment on Mr.

Harrison and another patient just four days later, to get out of working in the booking area. The

Ninth Circuit has noted, “Evidence of an improper motive can support a conclusion that a defendant

acted with deliberate indifference.” Snow, 681 F.3d at 987.

Finally, Defendant Sancho's argument regarding her claims that Mr. Harrison was not

exhibiting symptoms of alcohol withdrawal at the time of her intake screening of him is a red

herring. Since Mr. Harrison still smelled of alcohol and had a red, puffy face on intake, he would

not be likely to be in alcohol withdrawal on intake. The question is whether Mr. Harrison was at

risk of going into alcohol withdrawal while in jail, and the answer is an undisputed “Yes.”

Defendant Sancho knew, based on the information she admitted to having at the time, that

Mr. Harrison was at risk of going into alcohol withdrawal later. She knew that the first stage of

alcohol withdrawal does not begin until six-to-eight hours after a person's last drink and she knew

that she observed Mr. Harrison only a few hours after his last drink. Based on her training and

understanding of alcohol withdrawal, Defendant Sancho knew better than to expect to observe

alcohol withdrawal symptoms from someone whose last drink had been only a few hours before.



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Knowing that Mr. Harrison was at risk of alcohol withdrawal, Ms. Sancho intentionally failed to

place him on CIWA protocol. These facts establish that Defendant Sancho purposefully failed to

respond to Mr. Harrison's obvious medical need.

Defendant Sancho's deliberate indifference to Mr. Harrison's medical needs resulted in his

inability to receive necessary medical care to prevent severe alcohol withdrawal. This ultimately

led to Mr. Harrison's death. Numerous issues of fact exist regarding Defendant Sancho’s deliberate

indifference to Mr. Harrison’s medical needs, and Defendant’s Motion should be denied.

B. Plaintiffs' Claims are Not Barred by the Statute of Limitations.

Judge Wilken rejected Defendants' arguments that Plaintiffs' claims are barred by the statute

of limitations when she granted Plaintiffs' Motion to Amend on November 12, 2012. (See Doc. No.

45). Similarly, this Court rejected Defendants Sancho, Corizon and Orr's statute of limitations

arguments and found that the California relation back doctrine permitted Plaintiffs to add

Defendants Sancho, Corizon and Orr when they filed their Second Amended Complaint. (Doc. No.

76, p. 12). These rulings constitute the law of the case. Milgard Tempering v. Selas Corporation of

America, 902 F.2d 703, 715 (9th Cir. 1990) (under the law of the case doctrine, a court is generally

precluded from revisiting an issue that has already been decided, either explicitly or by "necessary

implication" by the same court). See also, Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993);

Funai Electric Company v. Daewoo Electrics Corporation, 2007 U.S. Dist. LEXIS 102668, pp. 27-

28 (N.D. Cal. 2007). Defendant Sancho's arguments are nothing more than an untimely and

improper motion for reconsideration under circumstances and facts that have not changed since

Judge Wilken's and this Court’s earlier rulings.

As Plaintiffs successfully argued both in their Motion for Leave to Amend and in their

opposition to Defendants Sancho, Corizon and Orr's Motion to Dismiss, their claims against

Defendant Sancho were timely brought as they related back to the same operative facts as the first

amended and original complaints, and were brought promptly after Plaintiffs discovered that

Defendant Sancho was among the jail officials who denied Plaintiff essential medical care for his

medical needs while in custody.

The Ninth Circuit has held that California relation back provisions “constitute a substantive

state policy that is applicable in federal civil rights actions.” Merritt v. County of Los Angeles, 875



F.2d 765, 768 (9th Cir. 1989) (citing Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th

Cir. 1988) (applying state relation back provisions to § 1983 action)). See also, Mishler v. Nevada

State Bd. of Medical Examiners, 1996 U.S. App. LEXIS 20590, at *5 (9th Cir. Aug. 15, 1996)

(“state relation-back rules and not Fed. R. Civ. P. 15 govern § 1983 suits.”) (emphasis in original).

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Specifically, California Code of Civil Procedure § 474 provides for “Doe” pleading of unknown

defendants, and that once a complaint is amended to identify a Doe defendant, it will relate back to

the original complaint. This provision for pleading of Doe defendants must be applied in a federal

civil rights action. Merritt, 875 F.2d at 768.

Furthermore, “[u]nder California relation back rules, there is no notice-to-defendants

requirement as in the federal rule.” Id. Thus, the amended complaint relates back for statute of

limitations purposes to the date the original complaint was filed, even if the newly identified

defendant had no prior notice of the lawsuit. Id.

Under California law, “An amended complaint relates back to the original complaint, and

thus avoids the statute of limitations as a bar against named parties substituted for fictitious

defendants, if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to

the same accident and same injuries as the original complaint.” Barrington v. A.H. Robbins Co., 39

Cal. 3d 146, 150 (1985). As long as the amended complaint is based on the same operative facts as

the original complaint, it may include a new theory of liability and new damages. Amaral v. Cintas

Corp., 163 Cal. App. 4th 1157, 1199-1200 (2008) (“it is the sameness of the facts rather than the

rights or obligations arising from those facts that is determinative”) (citation omitted).

The same is true under Federal Rule of Civil Procedure 15(c)(1)(B), which allows for

relation back where the new claim arises “out of the conduct, transaction, or occurrence set out – or

attempted to be set out – in the original pleading.” See also, Martell v. Trilogy, Ltd., 872 F.2d 322,

327 (9th Cir. 1989) (even a new theory of liability will relate back where the original and amended

complaints “share a common core of operative facts sufficient to impart fair notice of the

transaction, occurrence, or conduct called into question”).

Relation back applies where both pleadings refer to the same incident and the same injury

Grudt v. City of Los Angeles, 2 Cal. 3d 575, 581-85 (1970). Plaintiffs’ original complaint, First

Amended Complaint, and Second Amended Complaint refer to the same incidents (Defendants’



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denial of necessary medical care for Mr. Harrison’s serious medical needs, and unlawful Tasing and

beating of Mr. Harrison while he was in severe alcohol withdrawal) and the same injury (Mr.

Harrison’s death). These incidents and injuries rest on the same general set of facts. Only after an

opportunity to complete some discovery were Plaintiffs able to plead the facts in greater detail. See

Barnes v. Wilson, 40 Cal. App. 3d 199, 205 (1974) (plaintiff’s addition in amended pleading of “an

incidental fact reasonably inferable from the facts alleged in the original complaint” did not defeat

relation back).

At the time Plaintiff M.H. filed the original complaint (June 10, 2011) and all Plaintiffs filed

their First Amended Complaint (September 20, 2011), they did not know the role and liability of

Defendant Sancho, who was substituted for a previously named Doe Defendant in the Second

Amended Complaint. “Under § 474, ‘[i]f the identity of the Doe defendant is known but, at the

time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable

person to believe that liability is probable, the requirements of section 474 are met.’” Bolbol v. City

of Daly City, 2011 U.S. Dist. LEXIS 81228, at *11 (N.D. Cal. July 11, 2011) (citing McOwen, 153

Cal. App. 4th at 943); see also, (Doc. 45, Wilkins Order, pp. 6-10) (“Plaintiffs’ decision to wait until

after July to amend their complaint does not constitute undue delay or evince a lack of diligence.”).

Thus, the issue is not whether Plaintiffs knew that Defendant Sancho was generally

involved; the issue is whether Plaintiffs had reason to believe that she was probably liable. See id. at

*12 (citing McOwen, 153 Cal. App. 4th at 943-44 (“California case law indicates that actual

knowledge is the relevant standard, not constructive knowledge.”)). While Plaintiffs suspected that

their father's death may have been related to alcohol withdrawal, they did not have information to

confirm this suspicion and the identities of the responsible parties until much later, after diligent

requests for more information records were repeatedly thwarted by Defendants.7 Additionally,

7 For example, as noted above, Corizon removed from Mr. Harrison’s medical records the note from Megan Hast that Mr. Harrison was placed on CIWA before it produced the records to Plaintiffs’ counsel. Defendants did not reveal who crossed out “CIWA” on Mr. Harrison’s intake form until the July 27, 2012, deposition of Dr. Magat. The County delayed in producing Mr. Harrison’s jail records for over three months, and failed to produce Megan Hast’s timeline demonstrating her deliberate indifference until the Friday before her Monday, July 2, 2012, deposition. Despite Plaintiffs' timely and repeated requests for documents, Defendants Corizon, Sancho and Orr did not produce documents regarding Defendant Sancho's termination and arbitration until April 25, 2013,



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while Plaintiffs may have been generally aware of Defendant Sancho’s identity earlier in the

litigation based on the cursory jail medical record, Plaintiffs could not ascertain whether she was

probably liable until after they were able to complete some discovery. Megan Hast wrote in the

chart that Mr. Harrison was placed on CIWA. Plaintiffs were not informed that he was not placed

on CIWA, or that the failure to put Mr. Harrison on CIWA was Defendant Sancho’s decision, until

the July 27, 2012, deposition of Dr. Magat.

As shown above, Plaintiffs required a significant amount of evidence to meet the deliberate

indifference standard. Given the complexity of the claim, Plaintiffs were not in a position to name

Defendant Sancho as a defendant in this action until Dr. Magat revealed some facts concerning

Defendant Sancho’s involvement in Mr. Harrison’s death, and that the failure to address his medical

needs began as early as his intake at Glenn Dyer Jail.

Defendant Sancho makes much of the records that included the "mutilated" intake medical

screener that Plaintiffs received prior to joining this action. The County Defendants made the same

argument regarding Defendant Hast's "progress note" that contained significantly more detail

regarding Defendant Hast's involvement as compared to Sancho’s intake screener form. (Progress

Note). As Judge Wilken noted in rejecting this argument (Doc. No. 45, p. 7):

"They [County Defendants] argue that the note. . .provided all of the information that Plaintiffs needed to make a determination as to whether or not Ms. Hast should be added as a defendant. This overstates the note's value to Plaintiffs. The note is extremely brief and, without Ms. Hast's accompanying deposition testimony, offered Plaintiffs very little information about Ms. Hast's exact role at Santa Rita or about her interactions with the decedent while he was in custody there." The same analysis applies here. The intake screener form is extremely brief, contains

Defendant Sancho's first initial and last name, and some limited information regarding what Mr.

Harrison told her of his alcohol use. Without Dr. Magat's deposition testimony, Plaintiffs could not

tell from this single sheet what role the document had played in the denial of medical care to Mr.

Harrison, who had crossed out the notations regarding alcohol withdrawal and CIWA, and that Ms.

Sancho was liable for the failure to prevent Mr. Harrison's descent into severe alcohol withdrawal.

As Defendant Sancho points out in her Motion, "[t]he key issue is whether the plaintiff knew the

just two business days before Defendant Sancho's deposition. That last-minute document drop included over 1800 pages of Corizon documents. (Sherwin Decl. ¶ 34).



facts and this is a determination for the trial court." Hazel v. Hewlett, 201 Cal.App.3d 1458, 1464

(1988). This Court has already determined that Plaintiffs did not know the facts rendering

Defendant Sancho probably liable, their claims relate back, and their claims against Defendant

Sancho were timely pled. (See, Doc. 76, pp. 12-13) (denying Sancho, Orr, and Corizon’s motion to

dismiss based on statute of limitations for same reasons as Judge Wilkin’s earlier ruling).

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C. Defendant Sancho Violated the Bane Act, California Civil Code § 52.1. In denying Defendants Sancho, Orr, and Corizon's Motion to Dismiss, this Court has already

addressed and rejected Ms. Sancho's argument that she cannot be liable for a violation of the Bane

Act, California Civil Code §52.1. See Doc. 76, pp. 7-12. This ruling is the law of the case.

Milgard, supra, Thomas, supra, and Funai Electric Company, supra.

Furthermore, this Court's opinion in this case has since been found persuasive by other

courts. See, e.g., Little v. City of Richmond, 2013 U.S. Dist. LEXIS 149804 (N. D. Cal. 2013) *12-

13 (§ 52.1 does not necessarily require threats, intimidation, or coercion independent from violation

of a constitutional right, especially where conduct was intentional, i.e. volitional); Mateos-Sandoval

v. County of Sonoma, 2013 U.S. Dist. LEXIS 103549, (N.D. Cal. 2013) *26-27; Rodriguez v. City

of Modesto, 2013 U.S. Dist. LEXIS 172958, (E.D. Cal. 2013) *35-36; Dillman v. Tuolumne County,

2013 U.S. Dist. LEXIS 65206 (E.D. Cal. May 7, 2013), *54-58; Sanchez v. City of Fresno 2013

U.S. Dist. LEXIS 68561 (E. D. Cal. May 14, 2013) *34-38 (quoting from M.H. at length); Bender v.

County of Los Angeles, 217 Cal.App.4th 968 (2013).

Based on this Court’s reasoning in M.H., an Eastern District of California has rethought its

analysis of § 52.1, twice recently, holding that for Fourth Amendment claims, "there is no need for

a plaintiff to allege a showing of coercion independent from the coercion inherent in the seizure or

use of force." Rodriquez v. City of Modesto, supra.; Dillman v. Tuolomne County, supra.

The burden of showing "threats, intimidation, or coercion" under the Bane Act is minimal:

"it should not prove difficult to frame many, if not most, asserted violations of any state or federal

statutory constitutional right, including mere technical statutory violations, as incorporating a

threatening, coercive, or intimidating verbal or written component." M.H. v. County of Alameda,

2013 U.S. Dist. LEXIS 55902, (N.D. Cal. 2013) *19, quoting Venegas v. County of Los Angeles, 32

Cal.4th 820, 850-851 (2004). Section 52.1 simply requires “an attempted or completed act of




interference with a legal right, accompanied by a form of coercion.” Jones v. Kmart Corp., 17 Cal.

4th 329, 334 (1998).

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"[B]ecause deliberate indifference claims necessarily require more than 'mere negligence,' a

prisoner who successfully proves that prison officials acted or failed to act with deliberate

indifference to his medical needs in violation of his constitutional rights. . .adequately states a claim

for relief under the Bane Act." M.H., 2013 U.S. Dist. LEXIS 55902 at *23-24.

The facts that establish Defendant Sancho's deliberate indifference necessarily prove a

violation of rights by “threats, intimidation, or coercion.” What can be more coercive than denying

a jail inmate, powerless to care for his own medical needs, essential medical care to prevent him

from going into a life-threatening medical emergency? Defendant Sancho violated the Bane Act.

D. Plaintiffs Agree to Dismiss the Claim Against Defendant Sancho for Negligence. To streamline this case for trial, Plaintiffs agree to dismiss the negligence claim against

Defendant Sancho.

V. CONCLUSION

For these reasons, Defendant Sancho’s motion should be denied in its entirety.

Respectfully Submitted, Dated: December 20, 2013 HADDAD & SHERWIN /s/ Genevieve K. Guertin

GENEVIEVE K. GUERTIN Attorneys for Plaintiffs JOSEPH HARRISON, KRYSTLE HARRISON,

MARTIN HARRISON, JR., and TIFFANY HARRISON


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