Novak v. Merced Police Dep't

NANCY JUNE NOVAK, Plaintiff, v. MERCED POLICE DEPARTMENT, et al., Defendants.

Case No. 1:13-cv-01402-BAM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

May 23, 2016

ORDER DISMISING CAREMERIDIAN, LLC FROM THIS ACTION

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT

(Doc. 52)

Plaintiff Nancy June Novak ("Plaintiff") filed a civil rights action against the City of Merced, Merced Police Officers Rasmussen and Chavez, Sgt. Struble, The Mentor Network, Loyd's Liberty Home, CareMeridian, LLC (erroneously sued as Meridian Care, LLC), Christina Trigg, Joella Brewer and Does 1-25 arising from the alleged use of excessive force.¹ This action currently proceeds on Plaintiff's First Amended Complaint, filed on March 20, 2014. Doc. 23.

Presently before the Court is a motion for summary judgment brought by Defendants The Mentor Network, Loyd's Liberty Homes, Inc., CareMeridian, LLC, Christina Trigg and Joella Brewer. Doc. 52. Plaintiff opposed the motion on April 29, 2016, and Defendants replied on May 6, 2016. The Court heard oral argument on May 13, 2016. Counsel Timothy Magill appeared on behalf of Plaintiff Nancy Novak. Counsel Douglas Smith appeared on behalf of Defendants The Mentor Network, Loyd's Liberty Homes, Inc., CareMeridian, LLC, Christina Trigg and Joella Brewer.

I. Dismissal of CareMeridian, LLC

Following questioning by the Court, the parties represented that CareMeridian, LLC (erroneously sued as Meridian Care, LLC) had no relationship to or involvement in this action. As a result, Plaintiff and Defendant CareMeridian, LLC stipulated to dismissal of CareMeridian, LLC from this action. Based on the oral stipulation and at the request of Plaintiff, Defendant CareMeridian, LLC shall be dismissed from this action. Fed. R. Civ. P. 41(a)(2).

II. Motion for Summary Judgment

A. Background

The following facts are not reasonably in dispute.² In September 2012, Defendants Mentor Network and Loyd's Liberty Homes, Inc. (the "Mentor entity defendants") operated a licensed residential care facility (the "Mentor home") in Merced, California. Doc. 52 at 8. T.E., a developmentally disabled adult with a history of seizures, epilepsy, and who wore a helmet, was a resident of the Mentor home. Doc. 54, Defendants' Separate Statement of Undisputed Facts ("DSF") 3, 5-6.

On the evening of September 1, 2012, T.E. started acting aggressively toward other residents and staff. Defendant Brewer, Mentor's Qualified Mental Retardation Professional, responded to a call from the staff at the Mentor home that T.E. had become aggressive. DSF 9-11; Doc. 55-2, Plaintiff's Separate Statement of Undisputed Facts ("PSF") 98. There were four shifts on the weekends at the Mentor home, with the last one from 10:00 p.m. to 6:00 a.m. Only one person worked the last shift. PSF 99. Defendant Brewer then called Defendant Trigg, an employee of Loyd's Liberty Home with an A.S. degree in nursing, and instructed her to go to the home because T.E. was acting out and it might be an emergency. DSF 8, 12, PSF 106, 109-110. Defendant Trigg then went to the Mentor home and met Defendant Brewer outside. DSF 13. Defendant Brewer and Defendant Trigg both observed T.E.'s aggressive behaviors. DSF 15, 19-21.

T.E. was physically restrained at the Mentor home because of his aggressive actions towards other patients and staff members at the residence, epileptic seizures, retardation and other physical problems. DSF 22. Defendant Trigg was able to do a nursing assessment of T.E., which did not reveal any evidence of a physical or medical condition being the cause of T.E.'s unusual behavior. DSF 23-24.

Defendant Trigg called Joann Bolton, R.N., Mentor's on-call nurse, and explained the situation, including T.E.'s aggressive behaviors and absence of any injury to explain the behaviors. DSF 26-28.

A person named "Joala" called 911 at 8:23 p.m. to report that T.E. was attacking clients and staff. PSF 102. When the phone call was made, T.E. already had been strapped in his wheelchair. Defendant Brewer was unsure if T.E. had his helmet on at the time. PSF 103. Merced City Police Officers Rasmussen and Jeremy Salyers arrived at the Mentor home at approximately 8:28 p.m. PSF 104. Defendant Trigg talked with the officers and told them that she was the nurse at the facility. PSF 112. Defendant Trigg also told Officer Rasmussen that they only had one girl that worked the night shift and they were concerned that T.E. would choke someone when no one else was around. PSF 115. Defendant Brewer told Officer Rasmussen that she believed they should call Rigg's Ambulance Service to take T.E. to the hospital for a full medical examination. Officer Rasmussen responded that it would be "absolutely canceling us." Defendant Trigg then told Officer Rasmussen that she would check to see if they were going to use the ambulance, and the reason they called the police dispatch was so that they could use the officers rather than Rigg's Ambulance. Officer Rasmussen then explained to Officer Salyers that they were going to check and see if they could get the medication and things together so they could put a hold on T.E. and take him to Marie Green because in an hour so he would start going "berserk." PSF 116. Marie Green, located in Merced, is a County of Merced in-patient psychiatric facility and crisis center run by the County's Department of Mental Health. DSF 1; Pl's First Amend. Compl. ¶ 18.

Defendant Brewer told the officers that T.E. had not been this aggressive before. PSF 116. Defendant Brewer also stated that T.E. was strapped in a wheelchair with a helmet on because he suffered from gran and mal seizures. Defendant Brewer said they wanted the officers to take T.E. toMarie Green because she did not want him to hurt the other patients. PSF 118. Officer Rasmussen asked if they were trained in self-defense. Defendant Brewer indicated they were an absolute no-restraint facility. PSF 119. Defendants Brewer and Trigg asked Officer Rasmussen if they should get all of T.E.'s medications in a medic-grocery bag and also his PRNs. PSF 120.

While waiting to get the okay to take T.E.'s medications, Officer Rasmussen discussed with Defendants Trigg and Brewer about using the Mentor home van to transport T.E. because he was in a wheelchair and they could strap him down in the back of the van. Officer Rasmussen did not want to take T.E. out of the wheelchair because he could start kicking and flailing, causing injury or harm. There was discussion between Defendants Trigg and Brewer and Officer Rasmussen about transporting T.E. and that it would be safer for everybody. Officer Rasmussen stated, "Your safety is paramount." PSF 123. Defendant Trigg then stated that T.E. had a very bad medical experience in April from a hospital stay. PSF 124.

Prior to leaving the Mentor home, Officer Rasmussen asked Officer Salyers for a form, but he was not sure if it was the face page form for his reports or the Welfare & Institutions Code § 5150 form for placing a hold and transporting someone for a 72 hour involuntary hold to a facility, such as Marie Green. PSF 127. At this point, Officer Rasmussen had made the decision to put a hold on T.E. and have him admitted into Marie Green as a Welfare & Institutions Code § 5150. PSF 128. Upon receiving the radio call, and before arriving at the Mentor home, Officer Rasmussen was told by dispatch that this was a "5150" call for service. He also was told that it was for an aggressive person in a home. PSF 129. Before leaving the Mentor home, Officer Rasmussen had a conversation with Officer Salyers, stating "This is a first one for me." Officer Rasmussen meant that it was the first time he was taking someone to Marie Green strapped to a wheelchair with a helmet on his head. PSF 130.

Defendants Trigg and Brewer left the Mentor home, with Defendant Trigg driving the van, to go to Marie Green. Officer Rasmussen also left and requested dispatch to notify Marie Green of an involuntary and that they were in route. PSF 125. The service detail report indicated that at 9:15 p.m., Officer Rasmussen notified dispatch to notify Marie Green that he had an involuntary, and "we will be in route." PSF 125. They arrived at Marie Green at approximately 9:46 p.m. PSF 125. After arriving at Marie Green's parking lot, Officer Rasmussen told Defendants Brewer and Trigg to stay in the vanwith T.E., and he contacted Plaintiff, a Psychiatric Staff Nurse II for the County of Merced, working at Marie Green. PSF 126; DSF 2; First Amend. Compl. ¶¶ 17-18. Officer Rasmussen told Plaintiff that they had an adult in a wheelchair with a mental capacity of a two-year old, was epileptic and was violently attacking staff. PSF 131. Plaintiff inquired about the seizure disorder and the Dilantin levels. Officer Rasmussen told her that the two caregivers, Defendants Trigg and Brewer, could tell her everything and that they only had one staff member on that night. They were afraid that the night person would be choked. Plaintiff then asked, so in other words, their inadequate staffing is enough to have him admitted. Plaintiff further told Officer Rasmussen that Marie Green could not keep T.E. if he could not ambulate and get out of the building in case of a fire or emergency. PSF 132. Officer Rasmussen then said this was a first one for him. He explained in his deposition that it was the first time he had brought someone for a 5150 evaluation that was restrained in a wheelchair, like T.E. PSF 133.

Plaintiff and Defendants Brewer and Trigg had a discussion in which Plaintiff said that there was nothing that Marie Green could do, so she would call Dr. Manuel and see was she wanted her do. Defendant Trigg responded that T.E. could not stay with them and that they did not know where to take him. PSF 134. Plaintiff explained that it was a job for T.E.'s advocate, not Officer Rasmussen or someone having inadequate staffing. PSF 134. Plaintiff asked how long T.E. had been...