Motion to Amend in Boyle, Barbara vs. County of Placer et al| Trellis.Law

On October 05, 2018 a Complaint,Petition was filed involving a dispute between Barbara Boyle, County Of Placer, Devon Bell, and County Of Placer, Devon Bell, for Civil-Roseville in the District Court of Placer County.

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LAW OFFICE OF STRATTON S. BARBEE FILLED
Superior Court of California
Stratton S. Barbee, Bar No. 231026 coumy
6700 Freeport Blvd., Ste. 203-A SEP i8 2020
Sacramento, CA 95822
(916) 684-9389 coon Cer & Clerk
By: L.Sanders, Deputy
Attorney for Plaintiff
Barbara Boyle
12:24

SUPERIOR COURT OF THE STATE OF CALIFORNIA
08/27/2020

COUNTY OF PLACER
Received

BARBARA BOYLE, ) Case No.: SCV0041807
)
Plaintiff, ) SECOND AMENDED COMPLAINT FOR
vs. ) COMPENSATORY AND EXEMPLARY
Electronically

) TORT DAMAGES; DEMAND FOR JURY
COUNTY OF PLACER; ) TRIAL
DEVON BELL; CALIFORNIA FORENSIC _ )
MEDICAL GROUP INC.; M. KENDRICK, )
DIANA LAWSON; DR. DAVID DUNCAN; |)
Does 1-10 )
)
17 Defendants. )

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Comes now the plaintiff and complains against the above named defendants, and for a
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cause of action alleges on information and belief that:
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1. Plaintiff Barbara Boyle isa natural person and competent adult.
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22 2. Plaintiff is,and was at alltimes mentioned herein, a resident of the State of California.

23 3. Defendant Placer County is a municipality, organized under the laws of the State of
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California.
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4. Defendant Devon Bell is,and atall relevant times was, a natural person and competent adult,
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and the Sheriff of Placer County.

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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
5. Defendant California Forensic Medical Group Incorporated (CFMG) is a corporation,

organized under the laws of California, and is registered and authorized to do business in the

State of California.

6. Defendant M. Kendrick is,and at all relevant times was, a natural person and competent

adult, and a registered nurse employed by CFMG.

7. Defendant Diana M. Lawson is,and at all relevant times was, a natural person and competent

adult, and was an employee of CFMG.

8. Dr. David Duncan is,and at allrelevant times was, a natural person and competent adult, and
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was a medical doctor employed by CFMG.
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9. Does 1-10 are natural persons and competent adults whose identities are unknown to plaintiff.
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13 At all relevant times Does 1-10 were either employees of Placer County, CFMG, or were acting

14 at the direction of, and as agents of, Placer County or CFMG.

15
10. In accordance with Government Code section 910, on or about November 7, 2017, plaintiff
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filed a claim against the Placer County Sheriff's Office (PCSO) and its jail employees for the
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acts discussed herein. On or about December 7, 2017, Placer County rejected plaintiff's claim.
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19 Equitable Tolling

20 11. On or about June 7, 2017, plaintiff filed a Civil Rights Action, pursuant to 42 United
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States Code section 1983, in the United States District Court, Eastern District of California.
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Plaintiff, who was stillincarcerated at the time, and who was indigent, applied to the District
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Court to have the initial filing fee waived. However, the Eastern District would not waive
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25 plaintiff's filing fee unless she submitted a certified copy of her inmate trust account (books) by

26 July 27, 2018. Plaintiff was unable to obtain a certified copy of her books because the Placer
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County Jail staff was not familiar with how to certify said record, and as such, plaintiff's case
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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
was injeopardy of being involuntarily dismissed. Out of desperation plaintiff's counsel fronted

the $400.00 filing fee on behalf of plaintiff on or about July 29, 2018. However, as of October 4,

2019, the federal court still had not issued a summons. Plaintiff's counsel was afraid that

plaintiff's case might be involuntarily dismissed due to failure to produce the certified books

(which plaintiff could not procure, despite her counsel’s diligent efforts), or the filing fee, on

time. Therefore, on October 4, 2018, plaintiff voluntarily dismissed her federal case, without

prejudice, pursuant to Federal Rule of Civil Procedure (FRCP) Rule 41, subdivision

(a)(1)(A)&(B). (See Case #2:18-cv-01690) Plaintiff hereby asserts that the statute of limitations

was equitably tolled during the time her case was pending in federal court. (See McDonald v.

Antelope Valley Community College Dist. (2008) 45 Cal. 4th 88, 103; Addison v. State of.

California (1978) 21 Cal. 3d 313, 315.) The following day, on October 5, 2018, plaintiff filed

the instant action and served iton Placer County.

PLAINTIFF’S FACTUAL ALLEGATIONS

12. On June 22, 2017, plaintiff Barbara Boyle was arrested and placed in the custody of the

PCSO. Plaintiff was housed in the Placer County Jail. Plaintiff wears contact lenses without

which her vision is severely impaired. Prior to September 22, 2017, plaintiff requested, on

20 multiple occasions, that the jail staff provide her with contact lenses, but her requests were
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always denied or simply ignored. The staff would always give plaintiff an excuse for why they
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could not provide her with contact lenses. Plaintiff also asked for glasses in the alternative, but
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the staff did not provide her with glasses either.
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25 13. On or about Friday, September 22, 2017, plaintiff began to feel a severe irritation in her

26 right eye. She feared that there was a swollen or broken capillary and infection in her right eye.
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Plaintiff informed the Sheriffs deputies and medical staff and was instructed to complete a
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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
“kite” (a jail request for services or assistance), which she did. However, plaintiff received no

treatment.

14. The next day (Saturday), September 23, 2017, plaintiff told the on-duty officer that her

eye was in pain and that itwas rapidly getting worse. Once again plaintiff was instructed to

write a kite. Later that day the afternoon pill call nurse happened to see plaintiff's right eye and

stated that it was in terrible condition, and assured her that she would be placed on the Sunday

sick call listwhich would allow plaintiff to be seen by a doctor. However, nothing was done to

cure plaintiff that day. Plaintiffs eye condition was rapidly getting worse, but the PCSO treated
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her condition with no sense of urgency.
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15. | On Sunday, September 24, 2017, plaintiff was not summoned for sick call. Plaintiff

informed Deputy Wehe of her serious eye condition, but he callously responded with words to

the effect of, “Oh well, you’re not on the list.” Plaintiff summoned Deputy Wehe again and told

him that she was in pain and that a puss pocket had developed on her right eye. Deputy Wehe

expressed that he did not care, and that if plaintiff continued complaining he would issue her a

citation (write her up). Due to the severe emergency with her eye plaintiff summoned Deputy

19 Wehe again and pleaded with him to allow her to go to the medical clinic, but he would not assist

20 her. It was not until plaintiff told Deputy Wehe that she was having a heart problem that he
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allowed her to go to the medical clinic. However, Deputy Wehe told plaintiff that ifshe
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mentioned any other issues besides a heart problem he would issue her a citation. Wehe did not
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send plaintiff to the medical clinic until approximately an hour and a half after plaintiff first
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25 requested medical attention. During this time plaintiff suffered severe emotional distress and

26 unnecessary pain. Plaintiff had already been experiencing emotional distress and unnecessary
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pain, even before Deputy Wehe refused to let her be seen for her eye.
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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
16. While at the medical clinic an African-American nurse by the name of Shae Phinney

expressed serious concerns about plaintiff's right eye. Phinney wanted to transport plaintiff to a

doctor but could not do so without permission from the Sheriff's deputies in charge. Thus,

plaintiff was not seen by a doctor. Instead, Phinney apparently spoke with aCFMG doctor by

phone who instructed her to apply ointment on plaintiff's eye and to cover it with a patch.

Plaintiff isinformed and believes that this physician was Dr. David Duncan. However, the

person with whom Phinney spoke may have been a physician’s assistant, employed by CFMG.

Later that evening plaintiff visited the clinic again to seek treatment due to pus coming from her
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right eye. Defendant Diana Lawson of CFMG denied that pus was coming from plaintiff's eye
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and replaced the patch that was applied to plaintiff's eye earlier that day.
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17. The next day, Monday, September 25, 2017, the jail sent plaintiff to Auburn Eye Care

14 Associates. The doctors at this clinic stated that they had never seen a patient with such a

terrible eye condition. They also stated that the medical professional who diagnosed plaintiff by
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phone gave very bad orders when he told the nurse to place ointment on plaintiff's eye and then
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cover it. By covering the eye in such a moist environment it actually caused the infection and
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19 the bacteria to spread much faster. These specialists told plaintiff that she would need surgery

20 and that she might lose sight in her right eye, or even lose that eye altogether.
21 had
18. On Tuesday, September 26, 2017, the eye specialists stated that plaintiff's condition
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become so bad that they were unable to treat her. They referred plaintiff to UC Davis Medical
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Center for immediate treatment (As Soon As Possible). However, plaintiff was not taken to UC
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25 Davis that day as the specialists ordered. By the next day a gray film had developed over

26 plaintiff's right eye and she had become blind in that eye. (See attached photos.) Yet, plaintiff
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was not taken to UC Davis that day either.
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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
19. Plaintiff suffered blindness in her right eye and diminished beauty due to the unsightly

gray membrane that covered that eye for numerous months.

I. FIRST CAUSE OF ACTION AGAINST PLACER COUNTY, DEVON BELL, AND DOES

1-10, FOR VIOLATING PLAINTIFF’S CIVIL RIGHTS WITHIN THE MEANING OF 42

U.S.C. §1983.

20. = At all relevant times Placer County, through its Sheriff Devon Bell, was responsible for

the health and physical wellbeing of all inmates in the custody of the PCSO. Placer County,

Devon Bail, and Does | through 10, failed to provide plaintiff with eyeglasses, contact lenses, or
10
to expeditiously provide plaintiff with medical care once they learned of the rapidly deteriorating
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condition of her right eye. The failure to provide plaintiff with proper medical care in the form
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of eyeglasses, contact lenses, or expeditious treatment, caused her to suffer pain and anguish,

14 emotional distress, the loss of vision in her right eye, and the trauma of having to live with a

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physical oddity and deformity in the most viewed part of the human body. The defendants’
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failure to care for plaintiff's serious medical conditions amounted to cruel and unusual
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punishment within the meaning of the Eighth Amendment to the United States Constitution and
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Article One, Section 24 of the California Constitution.

20 21. Unknown Doe defendants, (and possibly some of the named defendants), were on notice
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that plaintiff needed new contact lenses, or eyeglasses, in order to function safely within the
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Placer County Jail. At all relevant times on and after September 22, 2017, some of the Doe
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defendants, and all of the named defendants, knew that plaintiff was suffering from a serious
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25 medical need. In regards to the medical conditions discussed in this complaint, alldefendants

26 knew that plaintiff faced a substantial risk of serious harm if the medical needs went untreated;
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they consciously disregarded that risk by not taking reasonable steps to treat plaintiff's medical
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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
needs, they were acting, or purporting to act in the performance of their official duties; plaintiff

was harmed, and the defendants’ conduct was a substantial factor in causing plaintiffs harm.

Plaintiff hereby alleges that defendant Placer County and its Sheriff are directly liable for failing

to perform their non-delegable duty to provide plaintiff with proper medical care. Plaintiff also

hereby alleges that defendants Placer County and itsSheriff, Devon Bell, have a custom and

practice of being deliberately indifferent to the medical needs of Placer County Jail inmates, and

that this custom and practice was a moving force behind the failure to provide plaintiff with

proper medical care in this case.
10
Il. SECOND CAUSE OF ACTION AGAINST SHERIFF DEVON BELL, PLACER COUNTY,
1]
AND DOES 1-10 FOR NEGLIGENCE.
12

13 22. At all relevant times defendants Bell, Placer County, and Does 1-10, owed a duty of care

14 to plaintiff in that she was in their custody, or they had a legal obligation to look after her

15
physical health. The defendants breached the duty of care they owed to plaintiff by failing to
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provide her with contact lenses or glasses, and failing to provide her with swift and proper
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medical treatment once plaintiff informed them of her deteriorating condition. Plaintiff suffered
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19 pain, emotional distress, and lost vision as a result of the defendants’ negligence. Plaintiff

20 hereby alleges that defendant Placer County and its Sheriff are directly liable for failing to
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perform their non-delegable duty to provide plaintiff with proper medical care. Furthermore,
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Placer County is vicariously liable for the negligent acts of its employees.
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Ill. THIRD CAUSE OF ACTION AGAINST CFMG, M. KENDRICK, DIANA LAWSON,
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25 DR. DAVID DUNCAN, AND DOES 1-10 FOR MEDICAL NEGLIGENCE.

26 23. By failing to expeditiously treat plaintiffs serious medical need, and by mistreating it(by
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instructing a nurse to apply ointment to the eye and to cover it),Nurse Kendrick, Ms. Lawson
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7
BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
(whom plaintiff presumes is a nurse), Dr. Duncan, and Does 1-10, engaged in medical

negligence. Kendrick, Lawson, Duncan, and Does 1-10 failed to use the skill, knowledge, and

care in diagnosis and treatment that other reasonably careful medical professionals would use in

the same or similar circumstances. Specifically, upon learning of plaintiffs serious medical

condition Nurse Kendrick and Lawson failed to have plaintiff immediately seen, in person, by a

doctor. Both Kendrick and Lawson caused ointment and a patch to be placed in/on plaintiff’s

right eye, which likely caused plaintiff's condition to worsen. Plaintiff is also informed and

believes that Kendrick and Lawson took their orders from Dr. Duncan.

24. Defendants Kendrick, Lawson, Duncan, and Does 1-10 breached the duty of care they

owed to plaintiff by failing to provide her with swift and proper medical treatment once plaintiff

13 informed them of her deteriorating condition. Plaintiff suffered pain, emotional distress, and lost

14 vision as a result of the defendants’ medical negligence.
15
25. Plaintiff hereby alleges that Placer County and CFMG are vicariously liable for the
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wrongful acts of defendants Kendrick, Lawson, and Duncan, and the unknown Doe defendants

who worked for CFMG, and who may be liable for medical negligence toward plaintiff.

26. Plaintiff also hereby alleges that defendants Placer County and its Sheriff, Devon Bell,

20 are directly liable to plaintiff for the medical negligence of any persons toward plaintiff because
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Placer County and its Sheriff had a non-delegable duty to provide proper treatment to plaintiff.
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IV. FOURTH CAUSE OF ACTION AGAINST DEFENDANT PLACER COUNTY AND
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DEVON BELL FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
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25 27. On September 24, 2017, plaintiff was suffering from a very serious eye condition for

26 which she ultimately needed surgery in order to restore her vision. This condition was visible to
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anyone who cared to notice it. Yet, when plaintiff asked Deputy Wehe to send her to the medical
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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
clinic Wehe disregarded her request. Plaintiff was suffering from an extremely serious medical

condition but Deputy Wehe simply did not care. In fact, Deputy Wehe threatened to take

disciplinary action against plaintiff if she continued to complain about her eye. Deputy Wehe

refused to procure medical assistance for plaintiff until she stated that she was suffering from a

heart condition. Wehe even threatened to issue plaintiff a “write-up” if she spoke to the staff

about anything other than a heart condition.

28. Deputy Wehe’s refusal to procure medical assistance for plaintiff, and his threats to

discipline plaintiff for requesting assistance, or ifshe spoke to the medical staff about her eye

condition, constituted outrageous conduct. Wehe’s refusal to obtain medical assistance for

plaintiff, and his threats to discipline her for requesting assistance, or if she spoke to the medical
12

13 staff about her eye condition, were intended to cause plaintiff emotional distress. Wehe’s

14 conduct did, in fact, cause plaintiff to suffer severe emotional distress. Placer County and its
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Sheriff are vicariously liable for the conduct of Deputy Wehe.

V. PLACER COUNTY AND ITS SHERIFF MAY BE HELD DIRECTLY OR VICARIOULY

LIABLE FOR ALL THE WRONGFUL ACTS OF ITS AGENTS AND EMPLOYEES.

29. Plaintiff is informed and believes that the PCSO has a custom and practice of not

20 providing proper medical care to itsjail inmates. The individual defendants who failed to
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provide plaintiff with eyeglasses or contact lenses, who failed to provide her with prompt
22
medical treatment, and who provided her with harmful treatment, were all employees or agents
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of the PCSO. The PCSO’s failure to properly tend to plaintiffs serious medical condition
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25 amounted to deliberate indifference to her right to be free from unreasonable searches and

26 seizures. The PCSO’s custom and culture of indifference to the medical needs of itsjail inmates
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was the moving force behind the violation of plaintiff's rights. As such, Placer County as a
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BOYLE vy.
PLACER COUNTY, ET. AL.: Second Amended Complaint
municipality should be held directly liable for the civil rights violations committed by its

employees and agents in regards to plaintiff. Under California law an employer may be held

vicariously liable for the wrongful acts of its employees.

WHEREFORE, plaintiff hereby seeks

(a) Special damages against all defendants for plaintiff’s past and future medical care, in an

amount to be determined according to proof.

(b) General damages against alldefendants in the amount of $30,000,000.00 for plaintiff's past,

present, and future, pain and suffering, emotional distress, mental anguish, and the violation of

her constitutional rights.

California Code of Civil Procedure section 1021.5, and any other laws entitling plaintiff to

14 recover of such fees.
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(d) Any other damages or relief to which plaintiff is entitled by law, according to proof, and in
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the interest of justice.

Dated: June 24, 2020 Respectfully submitted
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19 iatlen SD. Burbee
STRATTON S. BARBEE
20 Attorney for Plaintiff
Barbara Boyle
21

22 Plaintiff hereby demands a jury trial.

23
Dated: June 24, 2020 Respectfully submitted,
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Staten S. Furbee
26 STRATTON S. BARBEE
Attorney for Plaintiff
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Barbara Boyle
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BOYLE v.PLACER COUNTY, ET. AL.: Second Amended Complaint
DECLARATION OF SERVICE

I, Jean S. Barbee, declare:

Tam a citizen of the United States and am employed in the county of Sacramento,

California; I am over the age of 18 years and not a party to this action; my business address is:

6700 Freeport Blvd., Ste. 203A
Sacramento, CA 95822
E-mail: jean@barbeelawoffice.com

On June 24, 2020, I served plaintiff's SECOND AMENDED COMPLAINT on the

following parties listed below by:

depositing a true copy thereof enclosed in a sealed envelope with postage fully

prepaid, in the United States Post Office mailbox at Elk Grove, California addressed as follows:

XXXX__dispatching a pdf-copy of the attached document referenced herein via electronic

mail to:
16 Eric Brumfield
ebrumfield@placer.ca.gov
17 countycounsel@placer.ca.gov
18

I, Jean Marie S. Barbee, declare under penalty of perjury, under the laws of the State of

20 California, that the foregoing is true and correct.
21
Executed on June 24, 2020, at Elk Grove, California.
22

24
Jean Marie S. Barbee OQean Parsee
25 PRINT NAME SIGNATURE
26

1
Proof ofService

Case Info

Case No.

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Document Filed Date

September 18, 2020

Case Filing Date

October 05, 2018

County

Parties

Barbara Boyle Plaintiff
Barbee, Stratton Scott Law Office of Stratton S. Barbee Attorneys for Plaintiffs
Brumfield, Eric C. Office of County Counsel Placer County Attorneys for Defendants
Brumfield, Eric C. Office of County Counsel Placer County Attorney for the Defendant
California Forensic Medical Group, Inc. Cross Defendant
County of Placer Cross Complainant
County of Placer Defendant
Devon Bell Cross Complainant
Devon Bell Defendant
Warner, Gregory S Office of County Counsel Placer County Attorney
Warner, Gregory S Office of County Counsel Placer County Attorney for the Defendant
Margaret Tides Attorney

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Complaint,Petition: Boyle, Barbara vs. County of Placer et al

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