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Nattell v. Curry County

United States District Court, Ninth Circuit

August 28, 2013

TINA NATTELL, Plaintiff,
v.
CURRY COUNTY, et al, Defendants.

REPORT & RECOMMENDATION

MARK D. CLARKE, Magistrate Judge.

The Plaintiff brings claims against the defendants for violations of the Due Process Clause of the Fourteenth Amendment, as well as for negligence, wrongful death, medical malpractice, and vicarious liability. The court has jurisdiction through 42 U.S.C. § 1983 over the constitutional claims and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367. This case comes before the court on motions for summary judgment filed by defendants Curry County and Deputy Rod McAllister (collectively "County Defendants") (#38), Reginald Williams (#43), and Arthur Shaw, Amanda Summers, Lisa Scherbarth, and Westlog, Inc. (collectively "Cal-Ore Defendants") (#47). For the reasons below, the motions should be GRANTED.

BACKGROUND

On December 28, 2010, Wally Nattell called his mother Carol Rokos in Santa Maria California from his home in Brookings, Oregon. He told her he was calling to say "goodbye." He said that he had taken a bottle of pills. His words were slurring and unintelligible. His mother knew he had had a drinking problem in the past, but he "had never sounded like that before." When the line abruptly went dead, she tried calling his house, but did not get an answer. She then called Brookings Police dispatch and informed them of the conversation with her son. She asked them to help him and to call her back. 2nd Am. Compl. 6 (Doc. #23); Decl. Rokos 2-3 (Doc. #63).

Curry County Deputy Rod McAllister, along with two other deputies, responded to the dispatch reporting the call from Mrs. Rokos, which indicated a possible intentional drug overdose. When he arrived at the residence, McAllister observed Mr. Nattell outside walking toward his car with his keys in his hand. He had an odor of alcohol and was swaying while walking, such that McAllister did not want him to drive his car, although he appeared to be in control of his physical faculties, and was coherent. McAllister Decl. 3 (Doc. #39). When McAllister greeted Mr. Nattell, he told the deputy, "Oh, I was thinking about leaving, but I'm not now." McAllister said, "[It] wouldn't be a very good idea, " and Mr. Nattell agreed. Vid. Tr. 2.[1]

Deputy McAllister then followed Mr. Nattell into the residence, and into the back bedroom. McAllister Decl. 3 (Doc. #39). EMTs Scherbarth and Shaw arrived at the scene shortly thereafter. Vid. Tr. 8. Scherbarth said the scene was a little "chaotic" due to what she described as "the domestic situation in the house, " which included yelling by Mrs. Nattell from another room of the residence. Scherbarth Depo. 35-40 (Doc. #68-2).

When McAllister asked Mr. Nattell what medications he took that night, "he indicated that he took his daily dose of valium, methadone, alprazolam, and possibly his blood pressure medication." McAllister Decl. 3. Mr. Nattell told McAllister that he drank two glasses of wine with his medication and that "this was his normal routine." Id. at 4; Vid. Tr. 11-12. After confirming that "this is all a normal event for you, " EMT Scherbarth asked Mr. Nattell whether he would like to "go to the hospital and get checked out." He responded, "No, I don't." She replied, "Okay. I guess my issue is that if we don't take you to the hospital and you stay here, how's the rest of the evening going to go with your wife...?" Id. at 12. He responded by talking about locking his bedroom door, and Scherbarth replied, "Well, I just want to make sure that if we don't take you and you lay here, that you didn't take more than you're telling us and I come back later and you're not breathing." Id. at 13.

Scherbarth and McAllister then discussed some of the symptoms of Mr. Nattell's consumption of alcohol, methadone, and muscle relaxers; they agreed that "[t]he effects that we're seeing could be the methadone and the muscle relaxers working together." Id. at 14.

Scherbarth then went back to talking to Mr. Nattell: "And the story we got from dispatch is that you took a whole bunch of pills."

Mr. Nattell: "No. Four pills is enough... (inaudible)."

Scherbarth: "Okay, well I'm just concerned that - I don't want to leave here and something bad to happen to you."

Nattell: "Well, you know what? I think that would be great. Put me out of my misery." Id . When McAllister asked if that was really what he wanted to happen, Mr. Nattell continued, explaining that he "just want[ed] everything to go away" because he was sore. He also suggested that he did not want to "deal" with the other people in his house. Scherbarth then offered the idea that he go to the hospital with them, just for the hell of it, " but Mr. Nattell declined, saying, "All I'm trying to do is sit here and sleep."

Scherbarth: "But it might get you out of this situation for a night and let things calm down and maybe get you checked out."

Nattell: "It's going to calm down, because I'm going to lock that door again." Id. at 15.

Scherbarth asked Mr. Nattell if he knew the current year and location, and he answered correctly. A little later, she asked him, twice, if he thought it might help the situation if he just came with them to the hospital, but he again said no, both times. Scherbarth then conferred with Deputy McAllister, who said, "I can't place him on hold."

Scherbarth: "And we can't take him against his will, so..." Id. at 16.

Scherbarth then proceeded to tell Mr. Nattell that he would need to sign the paperwork releasing the EMTs of liability, saying at the same time, "But it doesn't stop us from coming back. I mean, but if you want us to come back later, if the pain's getting worse and your medication's not helping or you just need to get away from what's going on here tonight." Id. at 17. A few minutes later she asked him, "Are you able to sign? Because if you can't sign, then I'm going to take you with us. You're making me nervous." Id. at 22. EMT Shaw continued, "This document right here says that you're refusing medical care and treatment, right down here on this line. Right there. Sign your name there."

Scherbarth then repeated her earlier statement that they could come back later to "just diffuse the moment" and give him a ride. "Don't take any more pills, though, tonight, please, because I think you've had enough." Id. at 23.

As the group of responders were leaving, Ms. Nattell, the plaintiff, protested, saying, "And what, he's going to come at me (inaudible) frickin' lying here? Don't leave him here, please."

Deputy McAllister: "Can't make him go. He'll be asleep in about two minutes."

Ms. Nattell: "I hope so. You don't know him. He don't give up."

At around 2:00 a.m. Ms. Nattell tried to enter the bedroom, but found the door locked. She pried it open with a butter knife in order to retrieve her pillow. The next day, Ms. Nattell heard occasional snoring throughout the day, but believed she should "let Wally sleep it off as Deputy McAllister directed [her] to." Decl. Nattell 11. Later that evening, she went in to see him, and he was unresponsive and not breathing; "he appeared to be dead." She began CPR and called 911. Id.

Around 6:00 p.m. on December 29, 2010, the EMTs, including Scherbarth, were called back to the scene to assist Mr. Nattell for an apparent drug overdose. Scherbarth Depo. 77, 81. A cardiac monitor showed that his heart was not beating. The EMTs administered CPR, an IV with saline, Atropine, and Epinephrine, intubation, and defibrillation, and loaded him into the ambulance to transport him to the hospital. Summers Rpt. 4 (Doc. #50-5). En route, ...


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