Attorneys for retired HSU professor Stephany Borges contemplate appeal of ruling letting EPD off the hook

 

 

daren-2010

Old town artist Daren Borges 1972 – 2014

Attorneys representing the mother of Daren Borges, retired Humboldt State University professor Stephany Borges, have issued a statement in response to the Eureka Police Department’s press release regarding a pretrial ruling in the civil rights action arising from Daren’s death in a sobering cell at the Humboldt County Correctional Facility. Woodland Hills attorney Dale Galipo, and Glendale attorney John Fattahi, filed the lawsuit in 2015 on behalf of Ms. Borges against the City of Eureka, the County of Humboldt, the contracted jail medical provider California Forensic Medical Group, Incorporated (CFMG), and various individuals who failed to provide Daren with medical care.

The January 25, 2016 ruling by U.S. District Judge Yvonne Gonzalez-Rogers dismissed Ms. Borges’s claims against the City of Eureka and its officers, while permitting Ms. Borges’s claims against the County of Humboldt, Sheriff Michael Downey, and four correctional officers to proceed to trial. CFMG previously agreed to settle Ms. Borges’s claims for the maximum amount of liability under California medical malpractice law.

The case:

darens-art

Daren was an artist that suffered from schizophrenia

Daren was taken into custody after a concerned citizen called to report that he was behaving erratically, including taking off his clothes and hitting his head on the ground. In fact, Daren suffered from schizophrenia and was apparently having a psychiatric episode on the day in question. Jail personnel were familiar with Daren’s mental health issues as they had been administering psychiatric medications to him when they released him from the jail just four days before his death. Drugs such as methamphetamine are often used by people like Daren with untreated schizophrenia, and officers know this.

Attorneys for Ms. Borges believe they have grounds to appeal Wednesday’s decision to the U.S. Court of Appeals for the Ninth Circuit, but will make that decision at a later date. Witness testimony, as well as the video recordings of Daren’s arrest, showed that Daren had signs and symptoms of a high level of methamphetamine intoxication and possible overdose, excited delirium, and/or a head injury. Officers are trained at the basic police academy that any one of these three conditions is sufficiently serious that it requires immediate medical attention. Even though Daren’s condition deteriorated, the EPD officers failed to take the simple step of either calling an ambulance and monitoring Daren’s condition, or taking him directly to the hospital. Instead, they chose to take him to jail, where they saw him further deteriorate while they stood idly by. Expert witnesses testified that if EPD or jail personnel had even minimally performed their duty to affirmatively address Daren’s medical condition, he would have been taken to the emergency room for life-saving medical treatment.

With respect to the County jail officers, the Court found that Ms. Borges presented sufficient evidence for a jury to find that a reasonable correctional officer “would have appreciated the high degree of risk” faced by Daren and taken reasonable measures to address it, such as calling medical staff to fully evaluate Daren instead of locking him up by himself in the poorly monitored sobering cell where they watched his level of distress escalate toward his eventual death. The Court also decided that a jury could find Daren’s death was caused by the County and Sheriff Downey’s deliberately indifferent custom and practice of insufficiently assessing and monitoring arrestees who are placed in sobering cells. Further, a jury could conclude that similar disregard for the medical needs of Martin Cotton II made the County aware of the dangers of inadequate screening and monitoring of arrestees with medical issues.

Judge Gonzalez-Rogers is expected to set a trial date for the claims against the County defendants on or about February 6, 2017.

About Dale Galipo

Dale Galipo is an attorney specializing in civil rights law based in Woodland Hills. His office currently is handling approximately sixty wrongful death police misconduct cases. Galipo was the lead attorney in the Cotton case, in which a settlement was reached with Humboldt County, then a jury awarded Cotton’s family $4,575,000 against the City of Eureka and its officers for using excessive force and being deliberately indifferent to Cotton’s medical needs.

About John Fattahi

John Fattahi is a Glendale-based civil rights attorney with an emphasis on police excessive force. For more information, please visit www.johnfattahi.com.

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10 thoughts on “Attorneys for retired HSU professor Stephany Borges contemplate appeal of ruling letting EPD off the hook

  1. Classic Mills doublespeak. Once again EPD serves as judge, jury and executioner. I hope they appeal. It seems to me that the EPD officers should have taken him to the hospital. That was policy under Garr Nielsen.

    Liked by 1 person

  2. Very interesting. I read the LOCO account and after all the negative comments about the deceased (all made without personal knowledge of the individual) I decided (also without personal knowledge of any of the parties involved) that a different take should be presented.

    It’s one of the last comments on the article and I was pleased with what research turned up. After providing a link to a website which listed various medical reasons for violent behavior, I made the comment:

    “What I’m saying is what if the person that died had suffered from a bipolar disorder and in beating their head against the car window had caused damage to the brain which cause the death?
    I would suggest that re-examining the procedures for dealing with violent prisoners should include having the ability to physically restrain them so they CAN be examined, and also not harm themselves further.

    I think that this may be the issue that will be raised in court.”

    Then I added, because I wanted the ‘just a tweeker’ comments:

    “If you had a friend or family member who suffered from any of the above listed conditions which could cause such aggressive behavior…which in and of themselves are not illegal…wouldn’t you want the police/sheriffs to be proactive in physically securing the person and getting medical attention? What if it were a veteran with PTSD who had just experienced something which brought on the behavior? An autistic person who had slipped away from a care home and freaked out? Someone bipolar who slipped into a manic phase?”

    A long time ago through some friends I met a young woman who was living in a halfway house (mental problems, not drugs) and had compassion for her but could not bear to be around her, she was manic in odd ways. She had been that way since her teens and she was in her mid 20s. Her family couldn’t deal with her. A couple months later I saw one of the friends and asked how she was doing. He said it was amazing. An intern who worked at the halfway house took a real interest and arranged for some tests (which had not been done before). It turned out she suffered from Graves disease which is where the thyroid over produces its hormones. Medication which reduced the amount of the hormones returned her to the young woman she had been. Over ten years lost because no one else considered a physiological reason for her dementia. It made me really doubt the kind of care that is given and to not blindly accept pat assessments or diagnoses. Mr. Borges’ case reminded me of that young woman.

    I’m very glad to see this article which shows things I ‘imagined’ were actually true, that the responsibility did lie with all the authorities and that the mother is going ahead with the suit.

    Thank you for presenting a more complete account of the case

    Liked by 3 people

  3. I seem to remember Fortuna thought they were off the hook with a summary judgement like this, but is now back in court when Galipo won the appeal. Chief Mills is claiming victory a little too early, given the circumstances.

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  4. The night Tommy McClain was killed The police departments reported he was in a confrontation with a person driving a green ford truck, even though the driver walked away the officers feared the argument would escalate if the person returned. But the officers actions and statements they gave contradicts with the departments news release. The chief of police Andrew Mills stated the officers have a standard of moral obligation to intervene when it’s necessary. But the officers did not act as if there was an immediate threat or danger. In the investigation report one of the officers stated that “they would wait to see what would happen if the person that walked away came back. The driver of the green ford gave a statement to investigators, In his statement he makes no reference of a confrontation between him and McClain. THE STORY OF THE Confrontation WAS A BIG FAT LIE. It unnecessary for the officers to divert their attention from two wanted fugitives one possibly armed, to a person standing alone in his own front yard. At that time Chief Mills was not forth coming about the details, he made several comments that contradict with the facts stated in the reports. He commented the police can not arrest them selfs out of the problem, but I say something has to be done if the cause of the problem are the officers themselves. It’s my belief the officers provoked and instigated the altercation with Tommy James McClain, he had no connection with the two people the officers were looking for. Officer Linfoot stated during the trial, he heard officer Stephens tell Tommy he sees the gun don’t touch it or he would be shot. But you can not hear this on the watch guard. You can how ever hear Tommy McClain in the background asking what’s going on” what did I do? The audio taken from Linfoot’s car proved the officers simultaneously gave McClain conflicting commands such as” Put Your Hands Up”, “Get Down Here,” “Get Down On The Ground,” “Don’t.” One of the very last two commands heard is the voice of officer Linfoot’s shouting “Get Down” another officer’s voice yelling “Stop” two seconds prior to officer Linfoot shooting McClain. LINFOOT STATED THAT THERE WAS NO CONFLICTING COMMANDS given to Tommy because that would cause confusion, this to WAS A BOLD FACE LIE.
    Linfoot stated.”he shot a few times, Tommy was on the ground still moving so He shot twice more.” Tommy McClain was shot three times one bullet struck him in the head, he was then rolled over and handcuffed. Tommy’s cousin witnessed the officer(s) dragging Tommy across the yard by his legs. The corners report concluded contusions on both legs and one hand. My son was tazed three times then arrested for resisting arrest. The Office’s actions “including Linfoot’s statement” clearly fall below the standards of decency and good faith rightly required of all public law enforcement. Eureka’s police department Detective Ronald Harpham, who later would be lead investigator of the officer involved shooting gained access into Tommy’s residents, said it was part of their investigation to look around, the officers went upstairs and entered his room. A few hours later a warrant was issued to search Tommy’s belongings. In the warrant it clearly stated they were looking for a replica BB gun. The investigation concluded that because one of the seven bullets fired from officer Linfoot entered McClain’s upper right arm and passed through his chest his arms were not raised so he must have been reaching for a gun at the time he was shot. But the eyewitness stated Tommy had his hands half way up not up in the air.
    Tommy was posting to his Facebook 12:24am and 12:27am he was shot and killed at 12:30am. The Officer’s own reckless or deliberate conduct during the initial contact with Tommy escalated the situation unreasonably creating the need to use force that evidently ended the life of Tommy James McClain. “You think you got rights and justice will prevail. ” THINK AGAIN !

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  5. MR DALE GALIPO, SUCKS. HE WAS MY ATTORNEY FOR THE TOMMY MCCLAIN CASE. HE DidN’T BRING NOTHING TO COURT, NO EVIDENCE, NOTHING, HE LETS THE DEFENsE ATTORNEY TELL LIES AND MAKE UP STORIES ABOUT THeir CASE. HE MIGHT OF WON SOME MONEY FOR SOME PEOPLE BUT I WOULDN’T HIRE HIM AGAIN IF MY LIFE DEPENDED ON IT. I CAN’T BELIEVE A LAWYER WOULD ACTUALLY THROW THE PEOPLE WHO HIRED HIM UNDER A BUS THE WAY HE DID IN MY SONS CASE. HE HAD SO MUCH EVIDENCE TO PROVE OTHERWISE THAT WOULD SENT MY SON FREE AND REST EASY, BUT YET HE CHOSE TO WORK WITH THE DEFENsE AND HANG US OUT TO DRY.
    LANCE ROBERT MCCLAIN
    IF YOU’Re LOOKING FOR JUSTICE DALE IS NOT THE WAY TO GO

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    • Didn’t you accept the settlement? That was your choice to sign.

      Also, welcome to Humboldt County. Home of folks like Rusty below. Also the home of transplants like Mills…that should say a lot about what one could expect from a humboldt jury.

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      • No, that was not his choice, Mr McClain’s choice was to file the judgment. We were told that the time to file the judgment had lapsed, so Tommy’s parents would have to proceed on their own. Mr Galipo was not going to represent them beyond the jury verdict, so since a form was electronically filed with out their knowledge to have the judge’s switch with no chance for a appeal. Lance McClain and Jeanne Barragan signed the paper under duress. As a matter of fact, the agreement that Dale Galipo and Nancy Delaney came up with was done without any interactions with the courts and the check was sent to Mr Galipo’s office before Tommy’s parents reluctantly signed.

        Liked by 1 person

  6. We better all cough up another 50 % of our take home pay to pay for the fleet of ambulances, EMTs, Intensive care rooms, Emergency rooms to handle possible extreme overdose cases. With our rampant drug abuse we may just as well send and ambulance first. Might be a good idea to go after the Cartals that make and distribute the Meth. Five times the toxic dose of meth in his blood Mr. Borges was basically dead before here was arrested. Taking directly to a emergency room in San Francisco maybe might have pulled out, not here. The lack of drug interdiction at the source is the problem. Without the meth Mr. Borges would be alive today. But let’s blame poorly trained, over burden law enforcement. In the end the lawyers get paid by the tax payers, Ms. Borges get her pound of flesh and Mr. Borges is still dead. It’s the Meth stupid.

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    • Were you on Meth when you wrote this comment, or are you still suffering from the effects of long term use.

      Me thinks thou dost protesteth too much!

      Like

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