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Bevan v. Valencia

United States District Court, D. New Mexico

September 4, 2018

AIMEE BEVAN, as Personal Representative of the Estate of Desiree Gonzales, deceased, Plaintiff,
v.
GABRIEL VALENCIA, Youth Development Administrator, Individually, MATTHEW EDMUNDS, Corrections Officer, Individually, JOHN ORTEGA, Corrections Officer, Individually, MOLLY ARCHULETA, Corrections Nurse, Individually, ST. VINCENT HOSPITAL, and NATHAN PAUL UNKEFER, M.D., Defendants.

          HUNT & MARSHALL Lee R. Hunt, Esq. Stephen R. Marshall, Esq. Attorneys for Plaintiff

          LONG, KOMER & ASSOCIATES, P.A. Mark E. Komer, Jonlyn M. Martinez Law Office of Jonlyn M. Martinez, LLC Attorneys for the County Defendants

          Steven L. Gonzales, Esq. GONZALES LAW FIRM, LLC Attorney for Defendant Molly Archuleta

          MILLER STRATVERT P.A. By: Thomas R. Mack Thomas R. Mack, Esq. Jason T. Yamato, Esq. Attorneys for Nathan Paul Unkefer, M.D.

          PRETRIAL ORDER

         THIS MATTER is before the Court pursuant to Fed.R.Civ.P. 16. The parties conferred and submit the following Pretrial Order:[1]

         I. APPEARANCES

         Attorneys who will try the action: For Plaintiffs: Lee R. Hunt, Esq. Stephen R. Marshall, Esq. 518 Old Santa Fe Trail, #501 Santa Fe, New Mexico 87505 P:(505)954-4868 F: (505)819-0022 lee@huntandmarshall. com steve@huntandmarshall.com

         For Defendants Santa Fe County, Gabriel Valencia, Matthew Edmunds, John Ortega, Mark Gallegos and Molly Archuleta (the County Defendants): Mark E. Komer, Esq. LONG, KOMER & ASSOCIATES, P.A. P. O. Box 5098 Santa Fe, NM 87502-5098 Phone: (505) 982-8405 mkomer@longkomer.com email@longkomer.com

         Jonlyn M. Martinez Law Office of Jonlyn M. Martinez, LLC P. O. Box 1805 Albuquerque, NM 87103-1805 Phone: (505) 247-9488 jonlyn@martinezlaw.net Attorneys for the County Defendants

         For Defendant Molly Archuleta: Steven Gonzales, Esq. GONZALES LAW FIRM, LLC 3840 Masthead St., NE Albuquerque, NM 87109-4479 Phone: (505) 417-3898 steve@nmbusinesslaw.com

         For Defendant Nathan Paul Unkefer, M.D.: Thomas R. Mack, Esq. Jason T. Yamato, Esq. MILLER STRATVERT PA 500 Marquette Avenue, N.W. Albuquerque, NM 87102 Phone: (505) 842-1950 tmack@mstlaw.com jyamato@mstlaw.com

         II. JURISDICTION AND RELIEF SOUGHT

         A. Subject Matter Jurisdiction.

         1. Was this action removed or transferred from another forum? X Yes__ No.

         If yes, was the action removed or transferred?

         _X Removed ___Transferred

         State of New Mexico First Judicial District Court - Original forum

         2. Is subject matter jurisdiction of this Court contested?

         _X_ Uncontested___Contested

         3. Asserted basis for jurisdiction.

         _X_Federal Question___Diversity _X Other

         Statutory Provision(s) Invoked: 42 U.S.C. § 1983 and Supplemental Jurisdiction pursuant to 28 U.S.C. § 1367

         B. Personal Jurisdiction and Venue.

         1. Is personal jurisdiction contested?

         _X Uncontested___Contested

         2. Is venue contested?

         ___Uncontested X _Contested

         Plaintiff filed a motion requesting that the jury trial in this matter occur in Santa Fe, New Mexico. The Defendants opposed the motion. The Court ruled to hold the trial in Albuquerque, New Mexico. (Doc. 232, filed 11/16/17)

         C. Are the proper parties before the Court?

         _X_Uncontested___ Contested

         D. Identify the affirmative relief sought in this action.

         1. Plaintiff seeks damages as allowed under New Mexico law and 42 U.S.C § 1983, including:

a) The pain and suffering that Desiree Gonzales suffered in her dying moments.
b) The lost value of Desiree Gonzales's life apart from the economic value of her life. Such value includes lost enjoyment of life.
c) Damages from the aggravating circumstances of the wrongful death.
d) Punitive damages as permitted under relevant federal law.

         2. Nathan Paul Unkefer, M.D. does not seek affirmative relief in this action but seeks dismissal with prejudice or judgment in his favor plus recoverable costs. Dr. Unkefer does not claim that any party acted improperly or caused Ms. Gonzales' death, but Dr. Unkefer asserts alternative claims for comparative fault of other parties and nonparties, stated as an alternative defense only.

         3. The County Defendants seek dismissal of this action with prejudice and an award of their recoverable costs.

         The parties agree that the Pretrial Order will not be referenced to or referenced before the jury.

         III. BRIEF DESCRIPTION OF NATURE OF CLAIMS/DEFENSES

         A. Plaintiffs claims: On May 7, 2014, Nathan Paul Unkefer, M.D. released Desiree Gonzales into the custody of the Santa Fe County Youth Development Program ("YDP"). Desiree was released after one-hour and twelve minutes in the hospital and was released despite the fact that she had been given drugs in the hospital that were known to interact with the opiates that were in her system from an overdose of heroin earlier in the night. Dr. Unkefer released Desiree with no instructions on her care. She was rushed out of the hospital, even though she was at high risk for the reemergence of the depressant effect of heroin and respiratory depression. The care provided to Gonzales by Dr. Unkefer fell below the standard of care.

         When Desiree arrived at the YDP she could not stay awake, could not complete simple tasks and repeatedly retched. The YDP officers recognized that she was weak, lethargic and out of it during the booking process. The YDP had no medical personnel present and performed no assessment of Desiree. Despite staff raising concerns and despite signs of distress, Defendant Valencia accepted Desiree into the YDP.

         After Desiree was admitted to YDP, she was taken to her cell area. Defendant Matthew Edmunds immediately recognized that she was not in a normal state of mind, was slurring her speech and had groggy eyes. He called Defendant Archuleta and informed her of his observations. YDP Nurse Archuleta failed to come see Desiree and failed to tell the corrections officers to call 911 or refuse to accept her. Instead, the nurse told the officers to watch Desiree's breathing and to advise her immediately of any concerns. Under these circumstances, the fact that Nurse Archuleta did not make any effort to evaluate Desiree or ensure that she received necessary and critical medical treatment demonstrates that she was unconstitutionally deliberately indifferent to Desiree's serious medical needs.

         Desiree eventually went to sleep shortly after 11:15 p.m. Over the next two and a half hours, the clear signs of Desiree's distress escalated. Defendant Edmunds and Ortega observed Desiree having difficulty or trouble breathing, gasping for air, making gurgling noises when she would breathe and periods where she would stop breathing and then gasp for air. None of the guards contacted medical staff, none attempted to provide medical care and no one called 911. Instead, Desiree remained in the holding area until she was found not breathing and with no pulse. Such conduct demonstrates that Defendants Valencia, Edmunds and Ortega were deliberately indifferent to Desiree's serious medical needs.

         Desiree Gonzales was found lifeless at approximately 1:50 a.m. Instead of immediately calling 911, the YDP staff called Supervisors to find out what steps to take. Desiree Gonzales was taken to the hospital where she was pronounced dead in the early morning hours of May 8. According to the Office of the Medical Investigator, Desiree Gonzales died due to the "Toxic Effects of Heroin".

         B. Defendants' defenses:

         1. Defendant Nathan P. Unkefer, M.D. is a board-certified emergency medicine physician who has been practicing emergency medicine in Santa Fe since 2007. Dr. Unkefer provided care and treatment to Ms. Gonzales at Christus St. Vincent Regional Medical Center in Santa Fe.

         Dr. Unkefer denies the allegations stated against him, denies allegations of medical malpractice, denies allegations of medical negligence and denies that he caused or contributed to cause any injury or death to Ms. Gonzales. Dr. Unkefer affirmatively states that at all times relevant he did possess and apply the knowledge and did use the skill and care of a reasonably well-qualified emergency medicine physician practicing in Santa Fe, New Mexico.

         Dr. Unkefer encountered Desiree Gonzales in the emergency department at St. Vincent Hospital on May 7, 2014. Ms. Desiree Gonzales presented having overdosed herself from injecting heroin at an apartment in Santa Fe. [She was first attended to by her acquaintances at the apartment where she overdosed. After a 911 call, Ms. Gonzales received care and treatment at the apartment by Santa Fe Fire Department emergency medicine technicians/paramedics who cared for her and transported her to the hospital after reviving her with several doses of Narcan, also known as Naloxone.] Narcan doses were given at approximately 1936, 1939 and 1944. After Ms. Gonzales responded to the Narcan the paramedics observed her for a short period of time, and transported to Christus St. Vincent Hospital conscious, alert, oriented and in improved condition.

         Upon her arrival at St. Vincent Hospital at approximately 2030, Ms. Gonzales was awake, alert, oriented, angry and agitated. Narcan reverses the effects of heroin, and its metabolites, and causes heroin users to immediately feel the impact of withdrawal symptoms. Ms. Gonzales was agitated, nauseous, and retching, all consistent with withdrawal symptoms. She was properly attended to and triaged by the nurses in the emergency department, including Nurse Craddock, Nurse Munger and also by Dr. Unkefer who first met Ms. Gonzales in the emergency department at approximately 2040. He evaluated and examined Ms. Gonzales, initiated a plan of care, and provided care and treatment, all of which was consistent with the requirements of reasonable emergency medicine practice and the standard of care of emergency medicine physicians. His plan of care included addressing her withdrawal symptoms, including administration of one milligram of Lorazepam (Ativan) for her agitation, administration of Ondansetron (Zofran) for nausea, and noting that the nurses had already provided supplemental oxygen for Ms. Gonzales. Ms. Gonzales did not require other specific medical interventions in the emergency department but she was observed by Dr. Unkefer and the nurses in the emergency department until her discharge at approximately 2157.

         Prior to evaluating Ms. Gonzales for discharge from the emergency department, Dr. Unkefer waited an appropriate period of time to allow the Narcan medication to wear off, and no longer have its effects. Once the Narcan medication wears off, then the opiates that may remain in Ms. Gonzales' system would no longer be reversed by or blocked by the Narcan and Ms. Gonzales would reveal if any medications in her system would cause her to need additional medical care and treatment, either in the emergency department or as a patient admitted to the hospital. After the effects of the Narcan wore off Dr. Unkefer was able to fully evaluate his patient to determine if her condition had improved, to determine if she was stable, and if she should be considered for discharge from the emergency department. Dr. Unkefer found that Ms. Gonzales was improved in her condition, she was stable, and she met appropriate criteria for discharge from the emergency department as she no longer required any medical care and treatment in the emergency department and she did not require any other immediate medical care or treatment. She was ready to be discharged according to her condition and according to the applicable standard of care. Ms. Gonzales was alert, oriented, conversational, able to use her cell phone, able to make reasonable decisions about her current wellbeing and met the proper criteria for discharge from the emergency department. She was not suffering from any signs or symptoms of respiratory depression or respiratory distress at the time of discharge.

         Discharge from the emergency department was to a Santa Fe police officer because Ms. Gonzales had to be transferred to the Youth Detention Center as instructed by her juvenile probation officer.

         Dr. Unkefer discharged his patient into the care of the Santa Fe Police Department officer who in turn transported Ms. Gonzales to the Youth Detention Center. Ms. Gonzales' condition was improved, she was stable for this discharge and stable for this plan of care. She was discharged in the care and custody first of the police officer and later of the officials from the Youth Detention Center. At some point, Ms. Gonzales' condition changed and deteriorated rapidly, unrelated to her overdose of heroin - as she had metabolized the heroin and its metabolites. She developed sepsis from a toxic bronchopneumonia and this illness caused respiratory depression, cardiac dysrhythmias and she arrested. From the bronchopneumonia and cardiac arrest, she sustained damage to her lungs, her kidney, her liver, and her brain. Ms. Gonzales was attended to by the officials from the Youth Detention Center and a 911 call was made. Santa Fe Fire Department EMS/paramedics arrived and attended to Ms. Gonzales' emergency needs and she was transferred to St. Vincent Hospital at approximately 0237 on May 8. Ms. Gonzales did not regain consciousness, her condition was untreatable as she had sustained an anoxic brain injury due to her respiratory arrest and cardiac arrest. Ms. Gonzales unfortunately and untimely passed away at 0603 on May 8, 2014.

         Dr. Unkefer denies any allegations of negligence against him and denies any allegation that he caused or contributed to cause any harm to Ms. Desiree Gonzales. Dr. Unkefer provided proper treatment and care to Ms. Gonzales and she died from a rapidly progressing and aggressive illness in her lungs that took her life unexpectedly and relatively speaking without warning.

         Dr. Unkefer takes the position that no individual was negligent or otherwise at fault in attending to Ms. Gonzales' needs, which applies both to her original heroin overdose, treatment at St. Vincent emergency department, and related to her custody at the Youth Detention Center. In the alternative, in the event that other individuals or entities are found to have acted negligently or improperly with such actions causing injury or damages, the claims against Dr. Unkefer should be barred or limited.

         2.The County Defendants generally deny the plaintiffs allegations of liability under 42 U.S.C. §1983 for deliberate indifference to serious medical needs under the Eighth and Fourteenth Amendments of the United States Constitution. Each County Defendant re-invokes qualified immunity as a complete affirmative defense.

         With respect to the deliberate indifference elements, the County Defendants concur that a risk of death satisfies the objective component. The County Defendants maintain and incorporate their previous opposition to plaintiffs claim of the symptom of respiratory distress as distinct objective harm as inconsistent with clearly established law. (See generally Doc. 145, filed 4/8/16) The County Defendants further object to multiple claims of objective harm all related to the same underlying medical condition as not recognized by established law. Further, plaintiff conflates the concepts of respiratory depression based on opioid intoxication with respiratory distress, which is an entirely different symptom than respiratory depression and infrequently encountered in the context of an opioid overdose.

         As to the subjective component of the deliberate indifference test, each defendant denies that there are facts sufficient to support an inference that any of them could have or in fact did draw an inference that Gonzales was at an obvious risk of immediate death or respiratory distress from complications of drugs that she took or received on May 7, 2018. The exact mechanism of Gonzales death cannot be determined; however, plaintiffs expert claims that her death occurred due to toxic effects of heroin use and that lorazepam was a contributing factor. The County defendants received a medical clearance from an emergency room doctor which contained a recommendation for no further cares. There was no request for medical care by Ms. Gonzales or anyone on her behalf. There is no evidence that any of the individual defendants knew that Gonzales might or did become re-intoxicated from heroin and lorazepam after discharge from the hospital so many hours after the overdose. There is no evidence that any of the individual defendants knew that Gonzales might or did develop respiratory depression or distress from heroin and lorazepam after discharge from the hospital so many hours after the overdose. The County Defendants did not perceive that Gonzales required emergent medical care until she was found unresponsive at approximately 1:43 am on May 8, 2014, and there was no medical need that would have been obvious to a layperson before that time.

         Further, to the extent that plaintiff claims in hindsight that Gonzales exhibited certain symptoms that might be consistent with intoxication from central nervous system depressants such as heroin and lorazepam, such a showing is insufficient as a matter of clearly established law. Under the law in this Circuit, the plaintiff has the burden of showing the defendant knew and disregarded an imminent risk of death and not merely that the detainee was intoxicated. Martinez v. Beggs, 563 F.3d 1082, 1089 (2009); see also Cox v. Glantz, 800 F.3d 1231, 1250-1252 (10th Cir. 2015) (for purpose of the qualified immunity analysis, plaintiff mush show that each defendant knew of the particularized risk of harm). The fact that a detainee's "symptoms could have also pointed to other, more serious conditions fails 'to create an inference of deliberate indifference'" on the part of the prison medical provider. Spencer v. Abbott, 2017 U.S. App. LEXIS 24668 at *32 (citation omitted).

         Plaintiff is required to present evidence-not conjecture or speculation-that each of the County Defendants displayed a "conscious disregard of a substantial risk of serious harm." Spencer at*33-34. It is undisputed that each of the County Defendants participated in providing for additional precautions for monitoring that Desiree Gonzales during the short time she was at the YDP. Such conduct is inconsistent with deliberate indifference under clearly established law. Each Defendant reasserts their contentions in support of qualified immunity and summary judgment. (Docs. 164, 166, 204, 206)

         Finally, the County Defendants further deny that any alleged civil rights violation caused Desiree Gonzales' death and further claim that the conduct of others, including the decedent's, set in motion the events leading her demise. The County Defendants deny that Gonzales experienced any conscious pain and suffering as alleged by plaintiff. The County Defendants intend to introduce evidence concerning Desiree Gonzales medical and developmental history on the issue of claimed damages.

         IV. FACTUAL CONTENTIONS UNDERLYING CLAIMS/DEFENSES

         A. Stipulated Factual Contentions.

         The parties agree to the following facts listed separately below:

         The parties stipulate to personal jurisdiction and subject matter jurisdiction as stated herein.

         Plaintiff Aimee Bevan is personal representative of the wrongful death estate of Desiree Gonzales. Janel Gonzales, Julian Baca and Waldo Anaya contend that they are beneficiaries under the New Mexico Wrongful Death Act.

         Dr. Unkefer owed a duty to care for and treat Ms. Gonzales in the emergency department at the Christus St. Vincent emergency department.

         Dr. Unkefer is a qualified medical provider under the Medical Malpractice Act.

         Janel Gonzales is Desiree Gonzales' mother.

         Julian Baca helped raise Desiree Gonzales.

         Waldo Anaya is the biological father of Desiree Gonzales.

         Desiree Gonzales was a minor at the time of her death.

         Desiree Gonzales' date of birth was April 14, 1997 and she was 17 years old at the time of her death.

         The parties stipulated to the authenticity and admissibility of Desiree Gonzales' medical records, subject to the pending motions in limine.

         The parties stipulate that Gabriel Valencia, Matthew Edmunds, John Ortega and Molly Archuleta were Santa Fe County employees, acting under color of law.

         B. Contested Material Facts.

         Plaintiffs Contentions:

         Dr. Unkefer was aware of Desiree's serious medical condition but did not provide her with appropriate treatment and, instead, rushed her out of the ER.

         1. On May 7, 2014, the Santa Fe Fire Department and Police Department responded to a 911 call relating to 17-year-old Desiree Gonzales.

         2. Desiree had taken heroin and was given Narcan (a drug that reverses the effects of heroin) by the EMTs to counteract the effects of the overdose. After the fourth dose, Desiree woke up. The final Narcan dose was given at 7:44 p.m. according to the EMT records.

         3. After Desiree was stabilized, she was transported to Christus St. Vincent Regional Medical Center. Desiree was first seen in the Emergency Department at 8:40 p.m. Her ER doctor was Defendant Nathan Paul Unkefer, M.D.

         4. In the initial presentation, she was noted to have nausea and vomiting and she was slightly anxious.

         5. Dr. Unkefer prescribed Desiree various medications, including Ativan or lorazepam.

         6. Lorazepam is a benzodiazepine with central nervous system depressant effects.

         7. At various times during her observation, Ms. Gonzales exhibited unstable vital signs, including a high pulse and below-normal oxygen saturation levels.

         8. Due to her low oxygen levels, Desiree was placed on supplemental oxygen.

         9. Desiree Gonzales was observed to have difficulty breathing and chest pain in the hospital.

         10. Desiree was kept in the Emergency Department from 8:40 p.m. to 9:52 p.m. - a total of one hour and twelve minutes.

         11. At discharge, vitals were barely at a level considered normal, including a 99 pulse - 100 is considered abnormal. Additionally, at discharge, Desiree had been on room air oxygen for approximately 11 minutes.

         12. At 9:52 p.m., Ms. Gonzales was discharged from St. Vincent to police custody. In the medical clearance form, Dr. Unkefer wrote that Desiree's recommended treatment was "no further cares".

         13. In his discharge instructions to Desiree Gonzales, Dr. Unkefer wrote, "don't do drugs."

         14. As Ms. Gonzales's doctor, Dr. Unkefer could have made the decision to monitor her in the emergency room for longer than 2 hours. However, instead, he admits that he "cut it close" and monitored Ms. Gonzales for the minimum amount of time possible (according to his standard of care).

         15. Dr. Unkefer "cut it close" despite the fact that: (a) Ms. Gonzales' overdose "was rather a severe overdose," (b) Ms. Gonzales was "comatose" and "near death" immediately after her overdose, (c) Ms. Gonzales was described as "not breathing" and had an oxygen saturation of 7% when she was first seen by emergency responders, (d) the period of time that Ms. Gonzales was not breathing after her overdose could have caused damage to her organs and brain, (e) his "big concerns" during Ms. Gonzales' admission were "[r]espiratory difficulties [and] re-toxicity," and (f) the only set of vital signs that were taken during the admission that showed that Ms. Gonzales' vitals were within the normal range were the vital signs taken at 2148 (4 minutes before discharge).

         16. In addition, Dr. Unkefer discharged Ms. Gonzales: (a) after he ordered Ativan (a/k/a lorazepam) for Ms. Gonzales at the time of admission, (b) he understood that lorazepam could add to the effect of the morphine and potentiate any narcotic still in the body, (c) he understood that Narcran did not have an effect on lorazepam, (d) he understood that lorazepam can depress the respiratory system, and (e) he was aware that a risk of adding lorazepam to her system was "ongoing respiratory depression."

         17. At 9:52 p.m., Ms. Gonzales was discharged from St. Vincent to police custody. Desiree's recommended treatment included instructions on the signs of distress and when to bring Gonzales back to the hospital. The instructions were provided to the YDP, specifically Defendant Valencia and are included in the jail records. The instructions read:

__Return to the ED at any time if symptoms worsen or do not improve.
__The signs and symptoms of heroin use include:
drowsiness
Respiratory depression (which can progress until breathing stops.)

         Desiree should not have been accepted at YDP and instead should have been sent back to the hospital.

         18. Desiree arrived at the Santa Fe Youth Development Program and was booked in at 10:35 p.m.

         19. Defendant Valencia and Esmeralda Coronado were the YDP staff who participated in Desiree's booking.

         20. Ms. Gonzales dry heaved or retched numerous times during the 30 minutes that she was in the booking area.

         21. According to Ms. Coronado, "Intake Gonzales was responsive, however, was nodding in and out of sleep: she seemed very tired and weak." 22. Officer Coronado documented on her Incident Statement that Desiree attempted to sign the intake documents and "was not able to stay awake long enough to write her name".

         23. Desiree did not complete the normal paperwork required of YDP intakes and was unable to sign her name or initial any of the paperwork.

         24. Santa Fe County Public Safety Director Pablo Sedillo confirmed with Ms. Coronado that the staff "had some concerns" and that Desiree Gonzales "couldn't even sign a document."

         25. In her Deposition, Coronado admitted that: (a) no medical screening was done, (b) the facility medical screening form was not used, and (c) the medical clearance from the hospital replaced the on-site medical screening. In addition, Ms. Gonzales was not placed under constant observation pursuant to the YDP intoxication and withdrawal policy, which states, "Juveniles who are at risk for progression to a more severe level of intoxication or withdrawal are kept under constant observation when severe withdrawal symptoms are observed."

         26. After leaving the intake area, Desiree came into contact with Defendant Edmunds.

         27. Defendant Edmunds wrote in his Incident Statement that he "immediately came to the conclusion" that Ms. Gonzales was "not in a normal state of mind. Her eyes looked groggy and her speech was slurred."

         28. Due to his concerns about a new intake who had just come from the hospital after a severe heroin overdose and who was in distress, Defendant Edmunds called the YDP Nurse - Defendant Archuleta.

         29. Defendant Edmunds informed Defendant Archuleta of Gonzales's "state", i.e., not in a normal state of mind, slurring her speech and groggy eyes.

         30. Nurse Archuleta instructed Defendant Edmunds to "keep a very close eye on her during the night, monitor her breathing and let me know immediately if you have any concerns."

         31. Defendant Edmunds discussed with Defendant Ortega and Defendant Valencia that they were to closely monitor Desiree Gonzales's breathing and were to "immediately" notify medical personnel with any concerns or any changes.

         32. Desiree was placed in a bed on the floor of the Anasazi Pod - the bed is called a "boat".

         33. Desiree laid down to go to sleep shortly after 11:15 p.m.

         34. Defendants Edmunds and Ortega conducted 15-minute checks on the residents in the C-Pod. For the four residents in the C-Pod, the "checks" averaged less than 45 seconds. During many of the checks, Defendants did not even look at Gonzales.

         35. YDP Warden Gallegos sharply criticized the ineffectiveness of the checks stating, "I looked at the logs and you're telling me you did the whole facility in one minute. That means you went to every single door to see living, breathing, flesh rising up and down, okay, and that took one minute, all right, for the whole facility. That's a no-go."

         Defendant Edmunds observed clear signs of Desiree Gonzales's serious medical condition and her declining health

         36. During a debriefing on the day Desiree died, Matthew Edmunds stated "Desiree Gonzales was having trouble breathing but resident never made statement that she was unable to breathe".

         37. In his Incident Statement, Edmunds documented that he observed "Unusual breathing." 38. Matthew Edmunds went to the hospital with Desiree Gonzales after she was found unresponsive. While at the hospital, he spoke with Emergency Room personnel, including, Dr. Best. The hospital records document Matthew Edmunds's statement as follows:

Per jail: Pt arrived @ 2235 and booked. Pt. was "out of it" and would stop breathing and gasp for air since 2300.
Pt was noted to have "trouble breathing" where she would stop breathing then have a gasping, respiration @ approx. lip, by Jail Staff Matthew Edmunds. Dr. B confirmed per guard.
(Edmunds) noted that (Gonzales) was having difficulty breathing, at times gasping for air and making gurgling noises. He states that he notified his supervisor, however did not notify any medical personnel.

         39. Edmunds later spoke to Dr. Prock, the intensive care doctor who was attempting to save Desiree Gonzales's life.

         40. Dr. Prock spoke with Defendant Edmunds to understand Desiree Gonzales's situation so that she "could best take care of her." Further, Dr. Prock testified that this conversation was part of her diagnosis and treatment of Desiree Gonzales.

         41. Dr. Prock testified that Defendant Edmunds:

they had put her in her cell at around 11:00 at night. He told me that at some point shortly thereafter, the exact time he did not say, that he noted that she was having difficulty breathing. And I remember asking him, "Okay, describe that for me. What was going on?"
And he used the words "gurgling and gasping for air." I asked him if he had notified anybody about that, and he said he had notified his supervisor. I asked if he had notified any medical personnel or called 911, and he said, No."

         42. Edmunds informed the investigating officer from the Santa Fe Police Department that Desiree appeared to be having breathing difficulties so he kept checking on her.

         43. Despite the observations of difficulty breathing, Defendant Edmunds failed to ever wake Desiree up or check to see if she was coherent.

         44. Defendant Edmunds, despite having concerns about Desiree's difficulty breathing and despite being told by Nurse Archuleta to call medical if he observed any change in Desiree's breathing, failed to call medical personnel.

         Defendant Ortega was aware of Desiree Gonzales's ...


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