Five years into what has become a class-action lawsuit against San Diego County and its troubled jails, plaintiffs and defendants will square off at a critical hearing this week that is sure to define how the case will unfold when it finally lands before a jury.
On Thursday, U.S. District Judge Anthony Battaglia will weigh two key motions: one from the county seeking to dismiss nearly all of the claims in the case, and one from the plaintiffs aiming to disqualify the county’s expert witnesses before the case proceeds to trial.
The lawsuit known as Dunsmore v. San Diego County Sheriff’s Department began as pro se litigation — a long-shot legal complaint filed in 2020 by an incarcerated man named Darryl Dunsmore.
At the time, Dunsmore was a state prisoner being temporarily held in a San Diego County jail. His hand-written lawsuit complained that he was being denied access to legal materials and that his meals and living conditions were not meeting correctional standards.
In February 2022, shortly after the release of a state audit that found San Diego County jails had the highest mortality rate in California, a group of civil rights attorneys joined the case and professionalized the allegations.
The amended complaint spelled out what they said were failures by the Sheriff’s Office in greater detail, blaming a rising death rate on systemic problems with medical and mental health care.
That same year, the Sheriff’s Office would record its highest number of in-custody deaths ever — 19, not including a man who died at a hospital soon after being formally released.
Among other allegations, the updated lawsuit said jail officials were failing to provide reasonable accommodations for people with disabilities and ensure the safety and security of people in custody.
“These critical problems with defendants’ (jail) system have caused substantial harm to class members, including a number of preventable deaths,” the plaintiffs said in a recent motion.
The lawsuit was certified as a class action in 2023, meaning it now includes as plaintiffs all former, current and future men and women who are arrested and booked into county jail.
Lawyers for San Diego County have largely rejected the allegations as unfounded — except for complaints that the Sheriff’s Office had not fully complied with provisions of the federal Americans with Disabilities Act in housing and caring for people in custody.
Two years ago, both parties agreed to a partial settlement that called for the sheriff to upgrade jail facilities to meet with ADA regulations, form a specialized ADA unit and do better at providing help to people with disabilities.
In a motion seeking to dismiss much of what’s left of the case, county attorneys argue that jails have improved since the state audit, and that plaintiffs’ claims of sub-standard practices are moot and should be dismissed.
“The undisputed facts demonstrate that the SDSO (San Diego Sheriff’s Office) does not have any current ‘systemic policies and practices’ which are causing (incarcerated persons) to suffer a deprivation of their constitutional rights,” their brief adds.
The plaintiffs counter that major problems persist and are still hurting and killing people in custody.
In their opposition to the county’s motion, they cite expert testimony, internal audits and individual cases to argue that jail officials have long known about serious deficiencies but have failed to correct them.
“This is not a case about isolated incidents — it is about policies, practices and customs that place people at risk of serious harm,” they argue.
The plaintiffs are also asking Battaglia to strike the testimony of the county’s expert six witnesses.
In a motion filed last December, they argue that experts hired to review the quality of medical and mental health services in San Diego jails failed to review key pieces of evidence, including the records of people who died in jail.
“Deaths in the jail are a paramount issue in this litigation,” they wrote, contending that the failure to analyze such information amounted to cherry-picking evidence.
One county medical expert, Dr. Owen Murray, concluded the San Diego sheriff was “neither indifferent nor insensitive” to the needs of incarcerated people. But he acknowledged in a deposition that he did not review any records related to in-custody deaths.
Dr. Joseph Penn, a psychiatrist who also provided expert testimony for the county, similarly found no evidence of systemic failures in mental health care. But he too acknowledged under oath that he did not review the medical files of anyone who died by suicide or whose death was tied to mental illness.
Instead, Penn reviewed the files of 12 named plaintiffs — none of whom died — and then testified that he had found no evidence of suicides or psychiatric harm.
The plaintiffs’ lawyers argued that the omission was deliberate.
“Of course, a person who has died at the jail does not have standing to serve as a plaintiff in this case,” they wrote in their motion. “In other words, Dr. Penn’s selection of records to review was designed in such a way for him not to identify any suicides or deaths.”
The plaintiffs also pointed to what they said are flaws in the county experts’ methodology.
Murray, for example, hired five assistants to review records for 81 incarcerated people but said in a deposition that he did not verify their conclusions or review the records himself.
Like Murray, Penn also relied on assistants — referred to in his report as “psychiatric helpers” — to conduct the bulk of the chart reviews. He did not personally review any of those files or verify the helpers’ findings.
Plaintiffs also found evidence that Penn copied and pasted parts of his report from another report he wrote in a case involving Arizona prisons, Jensen v. Shinn, where he served as an expert for the state’s department of corrections.
“The inclusion of inapplicable, copied-and-pasted material casts doubt on the entirety of Dr. Penn’s report. At a minimum, each of those copied and pasted sections should be excluded … as they are based on facts from Jensen, not from facts in this case,” the plaintiffs said.
Neither Murray nor Penn responded to The San Diego Union-Tribune’s requests for comment by press time.
The plaintiffs leveled similar criticisms at the county’s dental expert and safety and security expert, both of whom acknowledged they had not reviewed relevant data.
At the Thursday hearing, a judge will consider how much money the Dunsmore lawyers are entitled to be paid for the work they have performed to date, including the resolution of the ADA allegations.
The plaintiffs’ attorneys are seeking $2.7 million in fees and expenses, including money to pay their experts who visited the jails and interviewed jails officials, staff and people in custody. The county wants those fees reduced to just over $1 million.
Heavily redacted records obtained by the Union-Tribune through a public records request show that as of mid-May, the county had paid more than $3 million to outside legal counsel to defend the lawsuit.
The hearing comes as the county continues to struggle to prevent people from dying in its jails and to defend nearly two dozen lawsuits tied to jail deaths.
Defense lawyers for the county in the Dunsmore case say Sheriff Kelly Martinez has taken numerous steps to reduce deaths and improve conditions in her jails, including a more comprehensive approach to treating addiction, better monitoring of people with chronic illnesses and enhanced screenings to prevent drugs from being smuggled into jails.
“The mortality rate at the jail has decreased significantly since the filing of the operative complaint in this lawsuit,” they wrote in a filing last December.
In September 2019, when the Union-Tribune published a multi-part investigation into deaths in San Diego jails, Dying Behind Bars, the county averaged one death a month over more than 10 years.
That rate climbed in subsequent years, hitting a record high in 2022 — the year Bill Gore stepped down as sheriff and Martinez was elected.
The following year saw 13 people die in jail. There were nine deaths in 2024.
So far this year, six people have died, including two women within a month’s time at the Las Colinas jail and 43-year-old Corey Michael Dean, who died at the Vista Detention Facility just last weekend.
Three men in Dean’s unit said he had smeared his cell and himself with feces and was pleading for help for days. The causes of all but one of the six deaths this year are still under investigation.
