Free Amended Complaint - District Court of California - California

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HERMEZ MORENO, ESQ., SBN 72009 FRANK PEREZ, ESQ., SBN 205377 RICHARD T. COPELAND, ESQ., SBN 213605 MORENO & PEREZ A Professional Law Corporation 714 West Olympic Blvd., Suite 450 Los Angeles, CA 90015 Tel: (213) 745-6300 Fax:(213) 745-6060

Judy Perez, Esq., SBN 223019 LAW OFFICES OF JUDY PEREZ 7 453 S. Spring Street, Suite 1000 Los Angeles, CA 90013 8 Tel: (213) 622-3330 Fax: (213) 622-3335
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FIRST AMENDED COMPLAINT

Attorneys for Plaintiff: HENRY KODIMER, by and through his Guardian Ad Litem, LYN RAMSKILL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA HENRY KODIMER, by and through ) through his guardian ad litem, ) LYN RAMSKILL, ) ) Plaintiff, ) ) v. ) ) ) CITY OF ESCONDIDO, COUNTY ) OF SAN DIEGO, OFFICER WYSE, ) OFFICER UMSTOT, SERGEANT ) DISTEL, AND DOE DEFENDANTS 1) THROUGH 10, INCLUSIVE, ) ) ) ) Defendant(s). ) ) ) ) ) ) ) _______________________________ ) CASE NO.:07-CV-2221-BEN(NLS) FIRST AMENDED COMPLAINT FOR DAMAGES FOR VIOLATION OF CIVIL RIGHTS ( 42 U.S.C. § 1983); VIOLATION OF AMERICANS WITH DISABILITIES ACT (42 U.S.C. § 12101, ET.SEQ.); NEGLIGENCE DEMAND FOR JURY TRIAL

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COMPLAINT PLAINTIFF HENRY KODIMER, an individual, by and through his guardian ad litem, LYN RAMSKILL, complains and alleges against Defendants CITY OF ESCONDIDO, COUNTY OF SAN DIEGO, OFFICER WYSE, OFFICER UMSTOT, SERGEANT DISTEL, and DOE DEFENDANTS 1 through 10, INCLUSIVE as follows: I. VENUE AND JURISDICTION 1. This action is brought pursuant 42 U.S.C. §§ 1983 and 1988, 42 U.S.C.§ 12101, et.seq., and the Fourth and Fourteenth Amendments of the United States Constitution. Jurisdiction is founded on 29 U.S.C. §§1331 and 1343(1), (2), (3) and (4), and the aforementioned statutory and Constitutional provisions. 2. Venue is proper in the Southern District of California. The injury occurred in Escondido, California and/or at the Vista Detention Center, both of which are in the County of San Diego, State of California. II. PARTIES 3. At all times relevant hereto, Plaintiff HENRY KODIMER ("Plaintiff") was a resident of the County of San Diego, California. As Plaintiff has suffered from paranoid schizophrenia for the majority of his life, and has been a quadriplegic since sustaining injuries on or about February 18, 2007, Plaintiff brings this action by and through his guardian ad litem, LYN RAMSKILL, his natural mother. 4. At all times mentioned herein, Defendant CITY OF ESCONDIDO was a public entity, duly organized and existing under and by virtue of the laws of the State of California. 5. At all times mentioned herein, Defendants OFFICER WYSE, OFFICER
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UMSTOT, SERGEANT DISTEL, and DOES 1-3, were duly sworn peace officers with the Defendant CITY OF ESCONDIDO Police Department who were specifically authorized by Defendant CITY OF ESCONDIDO and the City of Escondido Police Department (a subdivision and/or department of Defendant CITY OF ESCONDIDO) to perform the duties and responsibilities of sworn officers of the CITY OF ESCONDIDO, and all acts hereinafter complained of were performed by them within the course and scope of their duties as peace officers for said Defendant CITY OF ESCONDIDO and its Police Department and at all times herein acted under the color of the statutes, ordinances, regulations, policies, customs, usages and authority of Defendant CITY OF ESCONDIDO and under the color of the statutes, regulations and policies of the State of California. Defendant CITY OF ESCONDIDO and its Police Department either encouraged, assisted, ratified and/or with deliberate indifference failed to prevent the acts and omissions complained of herein. 6. DEFENDANTS DOES 4 through 5, and each of them, were duly appointed police officers, sergeants, lieutenants, detectives, or other officers, officials, executives and/or policymakers of the CITY OF ESCONDIDO Police Department, a department and subdivision of defendant CITY OF ESCONDIDO, and at all times mentioned herein said defendants were acting under color of law, i.e., under the color of the statutes, ordinances, regulations, policies, customs, and usages of defendant CITY OF ESCONDIDO and under the color of the statutes, regulations, policies of the State of California, and all said defendants were acting within their capacity as employees, agents, representatives and servants of the defendant CITY OF ESCONDIDO which is liable under the doctrine of respondeat superior pursuant to section 815.2 of the California Government Code for the State claims herein. Said DEFENDANTS are sued individually and in their capacities as the herein and above defined employees, agents and representatives of DEFENDANT CITY OF ESCONDIDO.
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7.

At all times mentioned herein, Defendant COUNTY OF SAN DIEGO (hereinafter "COUNTY") was a public entity, duly organized and existing under and by virtue of the laws of the State of California. Defendant COUNTY is responsible for and administers the COUNTY Sheriff's Department ("SDSD"), which in turn promulgates policies and practices for the housing, custody, care, safe keeping, medical care and protection of inmates in the COUNTY Detention Facilities including the Vista Detention Center. COUNTY, through its component departments, and Bill KOLENDER, as Sheriff of San Diego COUNTY ("KOLENDER"), runs, operates, oversees, administers, supervises, and is otherwise responsible for the conduct of SDSD in COUNTY facilities, including both the acts and omissions of SDSD and other detention facility workers, including but not limited to medical personnel. At all times COUNTY possessed the power and authority to adopt policies and prescribe rules, regulations and practices affecting all facets of the training, supervision, control, employment, assignment and removal of individual members of the SDSD, including those individuals charged with protecting the health and safety of inmates, including Plaintiff, at COUNTY Detention facilities and to assure that said actions, policies, rules, regulations, practices and procedures of the SDSD and its employees and agents comply with the laws and constitutions of the United States and of the State of California.

8.

Plaintiff is informed and believes that Defendants DOES 6 through 9 were duly sworn peace officers, sergeants, sheriffs, deputies and/or medical personnel, specifically authorized by defendant COUNTY and the COUNTY OF SAN DIEGO Sheriff's Department, (a subdivision and/or department of defendant COUNTY) to perform the duties and responsibilities of sworn officers of the COUNTY, and all acts hereinafter complained of were performed by them within the course and scope of their duties as peace officers and employees or agents for said DEFENDANT COUNTY and its Sheriff's Department, and are herein sued in
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their capacities as officers and/or employees of the COUNTY. Said defendant COUNTY and its Sheriff's Department either encouraged, assisted, ratified and/or with deliberate indifference failed to prevent all of the acts and omissions complained of herein. 9. DEFENDANTS DOE 10, was a duly appointed police officer, sergeant, lieutenant, detectives, or other officer, official, executive and policymaker of the COUNTY OF SAN DIEGO Sheriff's Department, a department and subdivision of defendant COUNTY, and at all times mentioned herein said DEFENDANT was acting under color of law, i.e., under the color of the statutes, ordinances, regulations, policies, customs, and usages of DEFENDANT COUNTY and under the color of the statutes, regulations, policies of the State of California, and all said defendants were acting within their capacity as employees, agents, representatives and servants of the DEFENDANT COUNTY which is liable under the doctrine of respondeat superior pursuant to section 815.2 of the California Government Code for the State claims herein. Said defendant is sued individually and in his/her capacity as the herein and above defined employee, agent and representative of defendant COUNTY. 10. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES 1 through 10, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend this complaint to allege said defendants' true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiff's injuries as herein alleged were proximately caused by the acts and/or omissions of said fictitiously named defendants. /// /// ///
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III. FACTS COMMON TO ALL CAUSES OF ACTION 11. At all relevant times, PLAINTIFF was a 35-year old male suffering from chronic paranoid schizophrenia. For the majority of his life, PLAINTIFF has taken numerous medications for treatment of his condition. Due to his condition, PLAINTIFF resided with his mother, Lyn Ramskill, at her home located at 1540 S. Redwood Street, Escondido, California. 12. On or about the evening of February 16, 2007, PLAINTIFF and his mother were in their residence. PLAINTIFF began to act erratically and entered his mother's bedroom and for a few minutes, refused to let her leave the room. PLAINTIFF's mother ultimately exited the room and secured herself in another area of the home. 13. Because of PLAINTIFF's long history of mental illness, and because his behavior on or about February 16, 2007 was out of character, PLAINTIFF'S mother called the police so they could transport him to a mental facility for treatment. 14. Officers from DEFENDANT CITY OF ESCONDIDO Police Department including but not limited to DEFENDANT OFFICERS WYSE, OFFICER UMSTOT, and SERGEANT DISTEL ("collectively hereinafter DEFENDANT OFFICERS) responded to the scene. PLAINTIFF'S mother informed the officers of what had transpired in her home that evening, and advised them of PLAINTIFF'S mental illness. She stressed the critical nature of PLAINTIFF'S condition, informed the DEFENDANT OFFICERS of his psychiatric diagnosis, history and current regimen of prescription medication, and pleaded with the DEFENDANT OFFICERS to transport PLAINTIFF to a mental facility for treatment. 15. Despite being advised of PLAINTIFF'S medical history and condition, and despite knowing, or having reason to know that peace officer standards and training called for the summoning of a mental health professional to the scene of this type of call, DEFENDANT OFFICERS, in contravention of all training and due care
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demanded by the norms of their profession, failed to, among other things, summon a police mental care professional and instead, with deliberate indifference to the life and safety of PLAINTIFF, ignored and otherwise disregarded PLAINTIFF'S condition and attendant needs thereto. 16. In further violation of all peace officer standards and training, the DEFENDANT OFFICERS simply arrested PLAINTIFF, and in a complete failure to adhere to all policies and training within DEFENDANT CITY OF ESCONDIDO Police Department ("EPD") and EPD formally adopted policies and procedures, with deliberate indifference to the life and safety of PLAINTIFF, booked PLAINTIFF as a regular suspect, thus failing to provide him with the requisite medical attention, required by a mentally handicapped individual. 17. DEFENDANT OFFICERS then transported PLAINTIFF to the custody of DEFENDANT COUNTY'S Sheriff's Department at the Vista Detention Center tendering custody to DEFENDANT COUNTY and failing to inquire of Defendant COUNTY which mental health hospital or facility to take PLAINTIFF to. 18. At all times, DEFENDANT OFFICERS were aware of PLAINTIFF'S MENTAL DISABILITY and the fact that he was under medical care for it and taking prescription medication as prior to leaving the residence of PLAINTIFF's mother, PLAINTIFF'S mother provided DEFENDANT OFFICERS with PLAINTIFF'S prescriptions, and advised said DEFENDANTS that it was critical that said medication be administered to PLAINTIFF while in custody. At no time after PLAINTIFF was taken from his mother's residence was he ever administered his medically necessary medication. 19. Once transported to Vista Detention Center, DEFENDANT DOES 6-9, and other agents of DEFENDANT COUNTY knew or reasonably should have known that PLAINTIFF was an individual suffering from acute paranoid schizophrenia. Moreover, deputies and other agents of DEFENDANT COUNTY knew or reasonably should have known that PLAINTIFF was under the treatment of
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prescription medications for his medical illness. Despite this actual and/or constructive knowledge, and with deliberate indifference to PLAINTIFF'S life and safety, DEFENDANT COUNTY's deputies, employees and/or agents, including but not limited to DOES 6-9, wrongfully failed to proceed pursuant to peace officer standards and training which call for the provision of treatment by mental health professionals, including but not limited to failing to administer PLAINTIFF his medication, and failing to provide him with psychiatric care. 20. Moreover, Defendant DOES 6-9 from DEFENDANT COUNTY'S Sheriff's Department, knew or reasonably should have known that in light of PLAINTIFF'S mental condition, he required separation from the general population within the detention facility, and placement in a separate mental ward where he could reasonably and constantly be supervised for suicide prevention. With deliberate indifference for PLAINTIFF'S life and safety, however, PLAINTIFF was placed in the general population in a cell that contained bunk beds. 21. DEFENDANT COUNTY Deputies DOES 6-9, and its employees and/or agents knew or reasonably should have known that in light of PLAINTIFF'S mental condition, he required protection and/or medical care. Despite this actual and/or constructive knowledge, and in deliberate indifference to PLAINTIFF'S needs, DEFENDANT COUNTY Deputies, DOES 6-9, and its employees, and/or agents, failed to take any appropriate measures to protect him or provide him with the needed medication and other medical attention as required by their rules, regulations, procedures, the law and their status and functions as DEFENDANT COUNTY jail personnel. 22. Said DEFENDANT COUNTY'S deputies, including but not limited to DOES 6-9, and its employees and/or agents, purposely or with reckless disregard to PLAINTIFF'S well being failed to administer his psychiatric medication and failed to otherwise administer to his medical and psychiatric needs, placing him instead in a crowded cell with the general population where it was reasonably
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known and anticipated that such placement would place him at undue and unreasonable risk of harm and subject him to unreasonable risk of harm. 23. As a result of the actions, and omissions of the COUNTY deputies (including but not limited to DOES 6-9), employees and/or agents who were charged with PLAINTIFF'S custody and care, on February 18, 2007, PLAINTIFF, who was in a deteriorated mental state, as a result of his lack of medication and as a result of not being properly monitored and being placed in a cell inappropriate for his mental state, fell and/or jumped from atop a bunk bed, breaking his neck, causing him to suffer permanent quadriplegia. IV. FIRST CAUSE OF ACTION VIOLATION OF CIVIL RIGHTS (42 U.S.C. SECTION 1983) (PLAINTIFF As Against DEFENDANTS OFFICER WYSE, OFFICER UMSTOT, SERGEANT DISTEL, and DOES 1-3) 24. 25. PLAINTIFF incorporates all the foregoing paragraphs herein by this reference. This cause of action arises under United States Code Title 42, §1983, wherein PLAINTIFF seek to redress a deprivation under color of law of a right, privilege, or immunity secured him by the Fourth and Fourteenth Amendments to the United States Constitution and under the laws of the Constitution of the State of California. Additionally, by reason of all the foregoing and following allegations, Plaintiff was required to retain counsel to institute and prosecute this action and to render legal assistance and advice that they may properly vindicate the loss and impairment of his rights and by reason thereof, Plaintiff requests and is entitled to a reasonable sum of attorney's fees pursuant to 42 U.S.C. §1988. 26. On or before February 16, 2007, there existed within the EPD: (1) an administrative manual; (2) a written compilation of policies and procedures; and (3) orally conveyed department policies, regarding the issues of the safety, health and welfare of arrestees, including but not limited to issues regarding providing
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medical necessary services to arrestees, and regarding the necessity of summoning a mental health professional to the scene of a call involving a known mentally disabled suspect. 27. From the time that they arrived at PLAINTIFF'S mother's house on February 16, 2007, and until the time they released PLAINTIFF to the custody Vista Detention Center, said Defendants, acting in conscious and reckless disregard for PLAINTIFF'S rights and in complete derogation of their responsibilities as alleged above, did under color of law, knowingly and/or intentionally engage in the following acts and omissions among others: 1. Failed and refused to summon a mental health professional to PLAINTIFF'S mother's home, so that PLAINTIFF could be properly assessed and sent to the appropriate detention facility for his condition; and 2. Failed and refused to provide PLAINTIFF with medically necessary care, by among other things: a. b. c. 28. Failing to provide PLAINTIFF'S medication to the personnel at Vista Detention Center and/or; Failing to advise the personnel at Vista Detention Center of PLAINTIFF'S mental condition and/or Failing to inquire of Defendant COUNTY which mental facility/hospital to which to transport PLAINTIFF. In this manner, DEFENDANTS, under color of law, and with intentional and deliberate indifference to PLAINTIFF'S medical condition, failed to protect PLAINTIFF'S life, health and safety, to which protection PLAINTIFF had a constitutional right, and thereby caused PLAINTIFF's mental condition to worsen and subjected him to inappropriate classification and prison housing, ultimately resulting in PLAINTIFF'S injuries as set forth herein. DEFENDANTS acted as they did in part because they knew or were otherwise aware that they would
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receive no discipline or punishment for their conduct and that their constitutionally violative conduct wold otherwise be ratified and condoned by their superiors. 29. As a proximate result of the aforementioned acts and omissions of said DEFENDANTS and each of them, PLAINTIFF was denied access to his prescribed and medically necessary medication, causing his condition to worsen, and subjected him to inappropriate classification and prison housing, ultimately resulting in PLAINTIFF'S injuries as set forth herein. 30. As proximate result of the aforementioned acts and omissions of said DEFENDANTS, and each of them, PLAINTIFF sustained great physical and mental pain, injury and shock to his nervous system, fear, anxiety, anguish, torment, degradation, emotional distress, and loss of strength, loss of income and loss of future income. PLAINTIFF was forced to incur medical treatment and to employ hospitals, doctors, and/or other medical professionals to treat his condition. PLAINTIFF will continue to need medical treatment and the assistance of medical devices for the remainder of his life. 31. The aforementioned acts by or omissions of the said individual DEFENDANTS and each of them were willful, wanton, malicious and oppressive, done with a conscious disregard for the rights of PLAINTIFF and constitute the type of despicable conduct that no civilized society should be forced to endure, and this conduct justifies the awarding of exemplary and punitive damages against said individual Defendants. /// /// /// /// /// ///
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V. SECOND CAUSE OF ACTION FAILURE TO INTERVENE TO PREVENT CIVIL RIGHTS VIOLATION (PLAINTIFF As Against DEFENDANTS OFFICER WYSE, OFFICER UMSTOT, SERGEANT DISTEL, and DOES 1-5) 32. 33. PLAINTIFF repeats and reallege each and every allegation contained above as though fully set forth herein. At all times relevant herein during all the failures and omissions relevant to PLAINTIFF sustaining injury, DEFENDANTS, from the time they arrived at PLAINTIFF'S mother's house on February 16, 2007, and until the time they released PLAINTIFF to the custody Vista Detention Center and were charged with the Constitutional duties of protection of PLAINTIFF, a known schizophrenic, and charged with the duty to not knowingly or with wanton disregard, cause his life, health and safety to be placed in danger by intentionally and deliberately ignoring PLAINTIFF'S medical condition and his need for medication. 34. Each said DEFENDANT was in the position and authority to lawfully intervene in and prevent the unjustified and unwarranted exposure of PLAINTIFF to danger to his life health and safety by, among other things: 1. Summoning a mental health professional to PLAINTIFF'S mother's home, so that PLAINTIFF could be properly assessed and sent to the appropriate detention facility for his condition; and 2. Providing PLAINTIFF with medically necessary care, by among other things: a. b. c. Providing PLAINTIFF'S medication to the personnel at Vista Detention Center and/or; Advising the personnel at Vista Detention Center of PLAINTIFF'S mental condition; and/or Failing to inquire of Defendant COUNTY which mental
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facility/hospital to which to transport PLAINTIFF. 35. Each said DEFENDANT had ample and reasonably sufficient time and opportunity to so intervene and prevent the exposure of PLAINTIFF to injury to life, health and safety, and was compelled to do so as a police officer under the laws of the State of California and under the Constitution of the United States of America. 36. In deliberate indifference to the life, health and safety of PLAINTIFF, each said DEFENDANT intentionally and with deliberate indifference to the civil rights of PLAINTIFFS, refrained from intervening in the acts leading to PLAINTIFF'S injuries, by including, but not limited to the following: 1. Failing and refusing to summon a mental health professional to PLAINTIFF'S mother's home, so that PLAINTIFF could be properly assessed and sent to the appropriate detention facility for his condition; and 2. Failing and refusing to provide PLAINTIFF with medically necessary care, by among other things: a. b. c. 37. Failing to provide PLAINTIFF'S medication to the personnel at Vista Detention Center and/or; Failing to advise the personnel at Vista Detention Center of PLAINTIFF'S mental condition; and/or Failing to inquire of Defendant COUNTY which mental facility/hospital to which to transport PLAINTIFF As a result thereof, PLAINTIFF was unjustifiably, purposely, or recklessly and wantonly ignored when he clearly was in need of specified medical treatment and handling by said DEFENDANTS as alleged in the First Cause of action in violation of his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments of the Constitution of the United States of America. 38. The acts and omissions constituting this cause of action were purposeful,
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malicious, and reckless and wanton so as to justify the imposition of punitive damages on these Defendants in their individual capacity. VI. THIRD CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. §1983) FOR FAILURE TO TRAIN AND FAILURE TO SUPERVISE, CAUSING CONSTITUTIONAL VIOLATIONS (PLAINTIFF As Against Defendant CITY OF ESCONDIDO) 39. 40. PLAINTIFF incorporates all preceding allegations by reference, with the exception of allegations relating to punitive damages. The CITY OF ESCONDIDO, through its Chief of Police, sergeants, lieutenants, policy makers, executives and DOES 4-5, is responsible for training and supervising the police officers, agents, and employees of the Escondido Police Department. 41. Among the activities which the CITY OF ESCONDIDO has established legal and accepted review, supervision and control are the policies, practices and procedures of its Police Department, including recruitment, training, job performance and evaluation, record keeping and management practices, as they relate to conduct which subjects citizens of ESCONDIDO, including mentally and psychologically impaired citizens to the police activities of the Escondido Police Department. 42. In the CITY OF ESCONDIDO, at all times relevant, there existed an obvious need to train officers as to: (1) the necessity to assess and categorize a citizen who is suffering from a mental or psychological illness; (2) the necessity in calling a mental health professional to the scene of a call when dealing with a mentally or psychologically ill citizen; and (3) the necessity in providing mentally or psychologically ill citizens with medically necessary care. Said training was at all time necessary to avoid violating the Constitutionally protected rights of the citizens of ESCONDIDO, including PLAINTIFF.
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43.

Defendant CITY OF ESCONDIDO, with deliberate indifference to the rights of citizens, including PLAINTIFF, failed to provide any training or to supervise the officers of the Escondido Police Department regarding: (1) the necessity to assess and categorize a citizen who is suffering from a mental or psychological illness; (2) the necessity in calling a mental health professional to the scene of a call when dealing with a mentally or psychologically ill citizen; and (3) the necessity in providing mentally or psychologically ill citizens with medically necessary care.

44.

As a direct and proximate result of the CITY OF ESCONDIDO'S deliberate indifference to training and/or supervising its officers with respect to the aforementioned issues, DEFENDANT OFFICERS violated PLAINTIFF'S rights and caused PLAINTIFF injuries, as set forth herein above, for which the CITY OF ESCONDIDO is directly liable. VII. FOURTH CAUSE OF ACTION BY PLAINTIFFS FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. SECTION 1983) (PLAINTIFF As Against Defendant CITY OF ESCONDIDO (Monell Claim))

45. 46.

PLAINTIFF incorporates all preceding allegations by reference, with the exception of allegations relating to punitive damages. Defendant CITY OF ESCONDIDO, through its police chief, and DOES 4-5, its administrators and decision makers, knowingly, recklessly, and with deliberate indifference for the health and safety and Constitutionally protected rights of citizens, including PLAINTIFF, promulgated, created, maintained, ratified, condoned and enforced a series of policies, procedures, customs and practices which authorized the arbitrary punishment and infliction of pain, torture, and physical abuse of certain classes of citizens, including, but not limited to purposely, wantonly, and recklessly refusing to properly assess, evaluate, and categorize persons with mental disabilities, and purposely, wantonly and
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recklessly failing to administer treatment, including providing medically necessary medications to persons with mental and psychological disabilities. In accordance to the above series of policies, procedures, customs and practices, the following actions including those alleged above, were taken regarding the treatment of PLAINTIFF. Said Defendants were further on notice of their wrongful policies by virtue of the Government Claims filed with the County over the last several year arising from deaths and injuries to citizens resulting from said policies. 47. DEFENDANT OFFICERS, from the time they arrived at PLAINTIFF'S mother's house on February 16, 2007, and until the time they released PLAINTIFF to the custody Vista Detention Center, failed to summon a mental health professional to evaluate PLAINTIFF, and improperly sent PLAINTIFF, a known schizophrenic, to a county jail facility to be housed with the general population. Furthermore, DEFENDANT OFFICERS failed to provide PLAINTIFF with medically necessary treatment, by failing to, among other things, provide the authorities at the Vista Detention Center with PLAINTIFF'S medication, that were necessary to maintain PLAINTIFF'S mental state. 48. These policies, procedures, customs and practices of Defendant CITY OF ESCONDIDO as alleged above were the moving forces behind the de facto custom and practice of permitting and condoning individual Escondido Police Officers and employees such as DEFENDANT OFFICERS from mistreating mentally and psychologically ill citizens, as alleged above, as a form of punishment and discipline. The custom, policy, practice and procedures described herein were a legal cause of PLAINTIFF'S injuries and each individual Defendant, acting in accord with this custom, practice, policy and procedure acted with deliberate indifference to the rights of the PLAINTIFF and DEFENDANTS acted recklessly and intentionally, under color of law, by showing conscious disregard for the life and safety of PLAINTIFF and violated PLAINTIFF'S Constitutional rights, and proximately caused the damages set forth in the
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incorporated paragraphs, all in violation of 42. U.S.C. § 1983. VIII. FIFTH COUNT/CAUSE OF ACTION NEGLIGENCE (All Plaintiffs As Against DEFENDANTS OFFICER WYSE, OFFICER UMSTOT, SERGEANT DISTEL, and DOES 1-5, and Defendant CITY OF ESCONDIDO, Inclusive) 49. 50. Except for allegations of intentional conduct, PLAINTIFF hereby repeats, realleges and incorporates all allegations above as though fully set forth herein. PLAINTIFF is informed and believes and thereon alleges that during all times leading up to and until the injuries sustained by PLAINTIFF on February 18, 2007, said Defendants did negligently and without due care, and with intent to impose unreasonable punishment on PLAINTIFF, fail in their duties to protect PLAINTIFF by, among other things: 1. Failing and refusing to summon a mental health professional to PLAINTIFF'S mother's home, so that PLAINTIFF could be properly assessed and sent to the appropriate detention facility for his condition; and 2. Failing and refusing to provide PLAINTIFF with medically necessary care, by among other things: a. b. c. 51. Failing to provide PLAINTIFF'S medication to the personnel at Vista Detention Center and/or; Failing to advise the personnel at Vista Detention Center of PLAINTIFF'S mental condition; and/or Failing to inquire of Defendant COUNTY which mental facility/hospital to which to transport PLAINTIFF. PLAINTIFF'S injuries occurred as a result of the absence of due care for the
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health and safety of others and constituted an unreasonable failure of both statutory, common law, and judicially imposed duties to protect PLAINTIFF, as failing to properly assess PLAINTIFF'S condition and failing to provide PLAINTIFF with medically necessary care, exposed an unreasonable risk of harm to PLAINTIFF. 52. The aforesaid conduct of said defendants, and each of them, was done in an intentional, reckless, unlawful, and/or negligent manner as all defendants, and each of them, knew or should have known that of the dangers PLAINTIFF was exposed to. 53. Defendant CITY OF ESCONDIDO failed to adequately train, supervise, discipline or in any other way control whether or not DEFENDANT OFFICERS and each of them, fulfilled their Constitutional, common-law, and judicially ordered duties to keep citizens, generally, and PLAINTIFF, specifically, protected while under their care and custody. 54. Defendant CITY OF ESCONDIDO was also negligent in failing to provide said DEFENDANT OFFICERS, and each of them, the proper and special training necessary for the duties they could foreseeably be expected to perform in the course of their employment in that DEFENDANT received inadequate training in the proper way to assess and categorize a mentally or psychologically ill citizen with the help of a medical professional, as well as to ensure that a mentally or psychologically ill receives proper medical treatment, including but not limited to being administered their medically necessary medications. As a direct and proximate result of this failure to provide training in these areas to and tactics training to said defendants, PLAINTIFF suffered injuries herein complained of. 55. PLAINTIFF timely complied with the filing of the Government Claims as to the Defendant CITY OF ESCONDIDO. PLAINTIFF filed a claim on April 3, 2007. Defendant CITY OF ESCONDIDO rejected PLAINTIFF'S claim on May 23, 2007.
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IX. SIXTH CAUSE OF ACTION VIOLATION OF CIVIL RIGHTS (42 U.S.C. SECTION 1983) (PLAINTIFF As Against DEFENDANTS DOES 6-9) 56. 57. PLAINTIFF incorporates paragraphs 1-23 herein by this reference. This cause of action arises under United States Code Title 42, Section 1983, wherein PLAINTIFF seek to redress a deprivation under color of law of a right, privilege, or immunity secured him by the Fourth and Fourteenth Amendments to the United States Constitution and under the laws of the Constitution of the State of California. Additionally, by reason of all the foregoing and following allegations, Plaintiff was required to retain counsel to institute and prosecute this action and to render legal assistance and advice that they may properly vindicate the loss and impairment of his rights and by reason thereof, Plaintiff requests and is entitled to a reasonable sum of attorney's fees pursuant to 42 U.S.C. Section 1988. 58. On or before February 16, 2007, there existed within Defendant COUNTY'S Sheriff's Department and within the Vista Detention Center: (1) an administrative manual; (2) a written compilation of policies and procedures; and (3) orally conveyed department policies, regarding the issues of the safety, health and welfare detainees, including but not limited to issues regarding the necessity of categorizing an inmate as being mentally ill, providing medical necessary services to detainees, the necessity of separating mentally ill detainees from the rest of the general population, and the necessity of providing mentally ill inmates with appropriate housing and supervision such that said inmates would not be placed in harm's way. 59. From the time that PLAINTIFF was transported to the Vista Detention Center by EPD, said COUNTY DOE defendants, acting in conscious and reckless disregard for PLAINTIFF'S rights and in complete derogation of their responsibilities, did
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under color of law, knowingly and/or intentionally engage in the following acts and omissions, among others: 1. 2. Failed to properly categorize PLAINTIFF as a mentally ill inmate; Failed to provide PLAINTIFF with medically necessary care, by among other things, failing to provide PLAINTIFF with his proscribed medication; 3. 4. Failed to separate PLAINTIFF from the general population within the detention facility; Failed to provide PLAINTIFF, whom they knew or reasonably should have known was mentally ill, with appropriate housing and supervision such that PLAINTIFF would not be placed in harm's way; and 5. 60. Failed to provide PLAINTIFF with appropriate psychiatric care. In this manner, said DEFENDANTS, under color of law, and with intentional and deliberate indifference to PLAINTIFF'S medical condition, failed to protect PLAINTIFF'S life, health and safety, to which protection PLAINTIFF had a constitutional right, and thereby caused PLAINTIFF's mental condition to worsen and subjected him to inappropriate classification and prison housing, ultimately resulting in PLAINTIFF'S injuries as set forth herein. DEFENDANTS acted as they did in part because they knew or were otherwise aware that they would receive no discipline or punishment for their conduct and that their constitutionally violative conduct wold otherwise be ratified and condoned by their superiors. 61. As a proximate result of the aforementioned acts and omissions of said DEFENDANTS and each of them, PLAINTIFF was denied access to his prescribed and medically necessary medication, was denied access to psychiatric care, causing his condition to worsen, and subjected him to inappropriate classification and prison housing, ultimately resulting in PLAINTIFF'S injuries as
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set forth herein. 62. As proximate result of the aforementioned acts and omissions of said DEFENDANTS, and each of them, PLAINTIFF sustained great physical and mental pain, injury and shock to his nervous system, fear, anxiety, anguish, torment, degradation, emotional distress, and loss of strength, loss of income and loss of future income. PLAINTIFF was forced to incur medical treatment and to employ hospitals, doctors, and/or other medical professionals to treat his condition. PLAINTIFF will continue to need medical treatment and the assistance of medical devices for the remainder of his life. 63. The aforementioned acts by or omissions of the said individual DEFENDANTS and each of them were willful, wanton, malicious and oppressive, done with a conscious disregard for the rights of PLAINTIFF and constitute the type of despicable conduct that no civilized society should be forced to endure, and this conduct justifies the awarding of exemplary and punitive damages against said individual Defendants. X. SEVENTH CAUSE OF ACTION FAILURE TO INTERVENE TO PREVENT CIVIL RIGHTS VIOLATION (PLAINTIFF As Against DEFENDANTS DOES 6-10) 64. 65. PLAINTIFF repeats and realleges each and every allegation contained in paragraphs 56-62 above as though fully set forth herein. At all times relevant herein during all the failures and omissions relevant to PLAINTIFF sustaining injury, DEFENDANTS, from the time PLAINTIFF was transported to the Vista Detention Center by EPD, were charged with the Constitutional duties of protection of PLAINTIFF, a known schizophrenic, and charged with the duty to not knowingly or with wanton disregard, cause his life, health and safety to be placed in danger by intentionally and deliberately ignoring
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PLAINTIFF'S medical condition and his need for medication and access to psychiatric care, by failing to properly categorize PLAINTIFF as a mentally ill inmate, by failing to separate PLAINTIFF from the general population, and by failing to provide PLAINTIFF with appropriate supervision and housing such that he would not be placed in harm's way. 66. Each said DEFENDANT was in the position and authority to lawfully intervene in and prevent the unjustified and unwarranted exposure of PLAINTIFF to danger to his life health and safety by, among other things: 1. 2. Properly categorizing PLAINTIFF as a mentally ill inmate; Providing PLAINTIFF with medically necessary care, by among other things, failing to provide PLAINTIFF with his proscribed medication; 3. 4. Separating PLAINTIFF from the general population within the detention facility; Providing PLAINTIFF, whom they knew or reasonably should have known was mentally ill, with appropriate housing and supervision such that PLAINTIFF would not be placed in harm's way; and 5. 67. Failing to provide PLAINTIFF with appropriate psychiatric care. Each said DEFENDANT had ample and reasonably sufficient time and opportunity to so intervene and prevent the exposure of PLAINTIFF to injury to life, health and safety, and was compelled to do so as a police officer under the laws of the State of California and under the Constitution of the United States of America. 68. In deliberate indifference to the life, health and safety of PLAINTIFF, each said DEFENDANT intentionally and with deliberate indifference to the civil rights of PLAINTIFFS, refrained from intervening in the acts leading to PLAINTIFF'S injuries, by including, but not limited to the following: 1. Failing to properly categorize PLAINTIFF as a mentally ill inmate;
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2.

Failing to provide PLAINTIFF with medically necessary care, by among other things, failing to provide PLAINTIFF with his proscribed medication;

3. 4.

Failing to separate PLAINTIFF from the general population within the detention facility; Failing to provide PLAINTIFF, whom they knew or reasonably should have known was mentally ill, with appropriate housing and supervision such that PLAINTIFF would not be placed in harm's way; and

5. 69.

Failing to provide PLAINTIFF with appropriate psychiatric care.

As a result thereof, PLAINTIFF was unjustifiably, purposely, or recklessly and wantonly ignored when he clearly was in need of specified medical treatment and handling by said DEFENDANTS as alleged in the Sixth Cause of action in violation of his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments of the Constitution of the United States of America.

70.

The acts and omissions constituting this cause of action were purposeful, malicious, and reckless and wanton so as to justify the imposition of punitive damages on these Defendants in their individual capacity. XI.

EIGHTH CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. §1983) FOR FAILURE TO TRAIN AND FAILURE TO SUPERVISE, CAUSING CONSTITUTIONAL VIOLATIONS (PLAINTIFF As Against Defendants COUNTY OF SAN DIEGO) 71. 72. PLAINTIFF incorporates paragraphs 56-62 and 65-69 allegations by this reference as though fully set forth herein. COUNTY, through its Sheriff, deputies, sergeants, lieutenants, policy makers, executives and DOE10, is responsible for training and supervising the police
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officers, agents, and employees of the San Diego County Sheriff's Department. 73. Among the activities which the COUNTY has established legal and accepted review, supervision and control are the policies, practices and procedures of its Sheriff's Department and its jails, including recruitment, training, job performance and evaluation, record keeping and management practices, as they relate to conduct which subjects inmates detained in COUNTY jails, including mentally and psychologically impaired inmates to the activities of the San Diego County Sheriff's Department, including activities within the COUNTY'S jails. 74. In the COUNTY, at all times relevant, there existed an obvious need to train officers as to: (1) properly categorizing inmates at jail facilities who are suffering from mental illness; (2) the necessity in providing mentally ill inmates with medically necessary care, including but not limited to administering proscribed medication; (3) the necessity in separating mentally ill inmates from the rest of the general prison population; and (4) the necessity in providing mentally or psychologically ill inmates with the appropriate supervision and housing so as to keep said inmates out of harm's way. Said training was at all time necessary to avoid violating the Constitutionally protected rights of inmates in the County's jails. 75. Defendant COUNTY, with deliberate indifference to the rights of citizens, including PLAINTIFF, failed to provide any training or to supervise the officers, agents, and/or employees of the San Diego County Sheriff's Department regarding: (1) properly categorizing inmates at jail facilities who are suffering from mental illness; (2) the necessity in providing mentally ill inmates with medically necessary care, including but not limited to administering proscribed medication; (3) the necessity in separating mentally ill inmates from the rest of the general prison population; and (4) the necessity in providing mentally or psychologically ill inmates with the appropriate supervision and housing so as to keep said inmates out of harm's way.
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76.

As a direct and proximate result of the COUNTY'S deliberate indifference to training and/or supervising its officers with respect to the aforementioned issues, DEFENDANT Sheriff's Deputies violated PLAINTIFF'S rights and caused PLAINTIFF injuries, as set forth herein above, for which the COUNTY is directly liable. XII. NINTH CAUSE OF ACTION BY PLAINTIFFS FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. SECTION 1983) (PLAINTIFF As Against Defendant COUNTY (Monell Claim))

77. 78.

PLAINTIFF incorporates paragraphs 71-76 by this reference as though fully set forth herein. Defendant COUNTY, through its sheriff, and DOE 10, its administrators and decision makers, knowingly, recklessly, and with deliberate indifference for the health and safety and Constitutionally protected rights of citizens, including PLAINTIFF, promulgated, created, maintained, ratified, condoned and enforced a series of policies, procedures, customs and practices which authorized the arbitrary punishment and infliction of pain, torture, and physical abuse of certain classes of citizens, including, but not limited to purposely, wantonly, and recklessly refusing to properly assess, evaluate, categorize, treat and care for persons with mental disabilities, including but not limited to inmates, and purposely, wantonly and recklessly failing to administer treatment, including providing medically necessary medications to persons with mental and psychological disabilities, and failing to properly separate, house and supervise said mentally ill inmates. In accordance to the above series of policies, procedures, customs and practices, the following actions including those alleged above, were taken regarding the treatment of PLAINTIFF. Said Defendants were further on notice of their wrongful policies by virtue of the Government Claims filed with the County over the last several year
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arising from deaths and injuries to citizens resulting from said policies. 79. DEFENDANT Sheriff's Deputies, from the time PLAINTIFF was transported to the Vista Detention Center by EPD, failed to properly categorize PLAINTIFF as a mentally ill inmate, failed to provide PLAINTIFF with medically necessary care, by among other things, failing to provide PLAINTIFF with his proscribed medication, failed to separate PLAINTIFF from the general population within the detention facility; and failed to provide PLAINTIFF, whom they knew or reasonably should have known was mentally ill, with appropriate housing and supervision such that PLAINTIFF would not be placed in harm's way. 80. These policies, procedures, customs and practices of Defendant COUNTY as alleged above were the moving forces behind the de facto custom and practice of permitting and condoning individual San Diego County Sheriff's Deputies and employees such as DEFENDANT Deputies from mistreating mentally and psychologically ill inmates, as alleged above, as a form of punishment and discipline. The custom, policy, practice and procedures described herein were a legal cause of PLAINTIFF'S injuries and each individual Defendant, acting in accord with this custom, practice, policy and procedure acted with deliberate indifference to the rights of the PLAINTIFF and DEFENDANTS acted recklessly and intentionally, under color of law, by showing conscious disregard for the life and safety of PLAINTIFF and violated PLAINTIFF'S Constitutional rights, and proximately caused the damages set forth in the incorporated paragraphs, all in violation of 42. U.S.C. § 1983. XIII. TENTH COUNT/CAUSE OF ACTION NEGLIGENCE (PLAINTIFF As Against DEFENDANTS DOES 6-10, Inclusive) 81. Except for allegations of intentional conduct, PLAINTIFF hereby repeats,
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realleges and incorporates all allegations in paragraphs 77-80 as though fully set forth herein. 82. PLAINTIFF is informed and believes and thereon alleges that during all times leading up to and until the injuries sustained by PLAINTIFF on February 18, 2007, said Defendants did negligently and without due care, fail in their duties to protect PLAINTIFF by, among other things: 1. 2. Failing to properly categorize PLAINTIFF as a mentally ill inmate; Failing to provide PLAINTIFF with medically necessary care, by among other things, failing to provide PLAINTIFF with his proscribed medication; 3. 4. Failing to separate PLAINTIFF from the general population within the detention facility; and Failing to provide PLAINTIFF, whom they knew or reasonably should have known was mentally ill, with appropriate housing and supervision such that PLAINTIFF would not be placed in harm's way. 83. As a direct and proximate result of said Defendants' negligent or wrongful acts or omissions, PLAINTIFF suffered injuries, as set forth herein above, for which said Defendants are liable. 84. PLAINTIFF timely complied with the filing of a Government Claim. PLAINTIFF filed a claim on April 3, 2007. Defendant rejected PLAINTIFF'S claim on May 29, 2007. XIV. ELEVENTH COUNT/CAUSE OF ACTION VIOLATION OF CALIFORNIA GOVERNMENT CODE SEC. 845.6 (PLAINTIFF As Against DEFENDANTS DOES 6-10, and Defendant COUNTY, Inclusive) 85. Except for allegations of intentional conduct, PLAINTIFF hereby repeats,
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realleges and incorporates all allegations in paragraphs 77-84 above as though fully set forth herein. 86. PLAINTIFF is informed and believes and thereon alleges that during all times leading up to and until the injuries sustained by PLAINTIFF on February 18, 2007, Defendant COUNTY and Defendant DOES 6-10, who were acting in the course and scope of their employment, knew or had reason to know that Plaintiff was in need of immediate medical care for his mental condition and failed to take reasonable action to summon medical care for Plaintiff in violation of California Government Code Section 845.6. 87. As a direct and proximate result of Defendant COUNTY'S and Defendant DOES 6-10's failure to take reasonable action to summon medical care for PLAINTIFF, PLAINTIFF suffered injuries, as set forth herein above, for which said Defendants are liable. 88. PLAINTIFF timely complied with the filing of the Government Claims as to the Defendant COUNTY. PLAINTIFF filed a claim on April 3, 2007. Defendant rejected PLAINTIFF'S claim on May 29, 2007. XV. TWELFTH COUNT/CAUSE OF ACTION VIOLATION OF AMERICANS WITH DISABILITIES ACTS (42 U.S.C. SECTION 12131, et.seq.) (PLAINTIFF As Against Defendant COUNTY, Inclusive) 89. 90. Plaintiff incorporates all allegations in paragraphs 1-23, 56-63, 65-69, 71-76, 7880, 82-83, and 86-87 above as though fully set forth herein. Plaintiff was a "qualified individual" with a mental impairment that limited and/or substantially limited his ability to care for himself and control for his mental, medical or physical health condition as defined under Title II of the A.D.A., 42 U.S.C. Section 12131, et.seq.
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91.

County's Sheriff's Department is a public entity who operates a correctional facility which is "engaged in the business of . . . health care," custody for persons whose "operations" fall within the definition of "program or activity" and a covered entity for purposes of enforcement of the ADA, 42 U.S.C. Section 12181 (7) (F).

92.

County's jails are mandated under the ADA not to "discriminate against [any individual] on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. Section 12182(a).

93.

Defendants have violated the ADA and deprived Plaintiff of his federally protected rights by, among other things: (a) failing to properly train its custody personnel for the classification, housing and placement of inmates-patients who are physically or mentally disabled as a result of a medical or mental health condition so that injury or death will not be caused; and (b) failing to provide reasonable accommodations to people with mental and medical disabilities at their facilities, and providing instead quality of care and services that is different, separate and worse than the service provided to other individuals.

94.

Because of his disability, Plaintiff was denied the benefits of services, programs and activities of County and medical and mental health care, treatment, follow-up, supervision, and transfer of medical and mental health care to a competent provider, and this denial of benefits resulted in discrimination against him.

95.

As a result of Defendant's breach of said duty to provide medical and mental health care, treatment, follow-up, supervision and transfer of medical and mental health care to a competent provider, Plaintiff suffered damages as set forth herein above.

96.

Additionally, for bringing this action, Plaintiff requests and is entitled to reasonable attorney's fees, including litigation expenses and costs, pursuant to 42 U.S.C. Section 12205.
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XVI. PRAYER Wherefore PLAINTIFF prays for judgment as follows: AS TO HENRY KODIMER: 1. 2. 3. 4. 5. 6. 7. For general damages in an amount in excess of $15,000,000 to be proven at trial; For medical expenses as proven at trial; For lost earnings and earning capacity as proven at trial; For costs of litigation; For exemplary damages as against those individual defendants named, excluding those causes of action based solely in negligence; For reasonable attorney's fees in the civil rights and Americans With Disabilities causes of action as provided by statute; and For such other and further relief as the Court may deem just and proper.

AS TO ALL CAUSES OF ACTION:

Dated:

September 17, 2008

MORENO & PEREZ A Professional Corporation By: /s/Richard T. Copeland RICHARD T. COPELAND, ESQ. Attorneys for PLAINTIFF E-mail: [email protected]

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DEMAND FOR JURY TRIAL HENRY KODIMER, by and through his guardian ad litem, LYN RAMSKILL, respectfully demands that the present matter be set for a jury trail. Dated: September 17, 2008 MORENO & PEREZ A Professional Corporation By: /s/Richard T. Copeland RICHARD T. COPELAND, ESQ. Attorneys for PLAINTIFF E-mail: [email protected]

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Declaration of Service I, the undersigned, declare:

That I am over the age of eighteen years and not a party to the case; I am employed by Moreno & Perez, A Professional Corporation, and my business address is 714 W. 5 Olympic Boulevard, Suite 450, Los Angeles, California 90015. On September 17, 2008, I served the following documents: PLAINTIFF'S 6 FIRST AMENDED COMPLAINT in the following manner:
7 8 9 10

X

By electronic filing, I served each of the above referenced documents by E-filing, in accordance with the rules governing the electronic filing of documents in the United States District Court for the Southern District of California as to the following parties: Michael R. McGuinness, Deputy Escondido City Attorney's Office 201 N. Broadway Escondido, California 92025 (760) 839-4608 (760) 741-7541(fax) E-mail: [email protected] Attorneys for Defendants CITY OF ESCONDIDO, OFFICER WYSE, OFFICER UMSTOT, SERGEANT DISTEL

Ricky R. Sanchez, Senior Deputy 11 County of San Diego County Counsel 1600 Pacific Highway, Room 355 12 San Diego, California 92101 (619) 531-4874 13 (619) 531-6005(fax) E-mail: [email protected]
14

Attorneys for Defendant 15 COUNTY OF SAN DIEGO
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I declare under penalty of perjury that the foregoing is true and correct. Executed on September 17, 2008 at Los Angeles, California. 17
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By: /s/Richard T. Copeland E-mail: [email protected]