Opinion
CIV-09-1684-PHX-MHB
08-27-2012
Elijah McClurg, et al., Plaintiffs, v. Maricopa County, et al., Defendants.
ORDER
Pending before the Court are Defendant Maricopa County's Motion for Summary Judgment (Doc. 145) and Defendant Sheriff Joseph Arpaio's ("Arpaio") Motion for Summary Judgment (Doc. 147). After considering the arguments raised by the parties in their briefing, the Court now issues the following ruling.
This case arises out of the confinement and, subsequent, death of David Wayne McClurg. Initially, Plaintiff Elijah McClurg, the son of the decedent, filed a complaint on behalf of himself and his minor brother, against Defendants Maricopa County, Maricopa County Correctional Health Services ("MCCHS"), Arpaio, and the Maricopa County Sheriff's Office ("MCSO"). Plaintiff also named several "John Does" as unidentified, individual medical staff and detention officers. Plaintiff alleged state law claims predicated on Arizona's wrongful death statute, as well as, claims pursuant to 42 U.S.C. § 1983.
The matter was removed to this Court on August 14, 2009. On November 9, 2009, and on April 20, 2010, the Court dismissed MCCHS and the MCSO as non-jural entities incapable of being sued - and the bulk of the claims set forth in Plaintiff's complaint. The Court, however, allowed Plaintiff the opportunity to substitute individual names for the unnamed Defendants if, through discovery or otherwise, said Defendants are identified.
On October 12, 2010, Plaintiff, on behalf of himself, and as personal representative of the Estate of David Wayne McClurg, and Cindy McClurg, the parent guardian of L. McClurg, a minor, filed their First Amended Complaint. Plaintiffs named the same four Defendants set forth in the original complaint (including the Defendants this Court has previously dismissed) and added individual Defendants Malinchalk, Patterson, Hernandez, Hargrove, Barker, and Lamarre. The First Amended Complaint contained five counts, which were substantially the same as the five counts set forth in the original complaint (most of which this Court has previously dismissed). Count One (Negligence) and Count Two (Gross Negligence) were predicated upon Arizona's wrongful death statute and were asserted against all Defendants. Count Three alleged a claim pursuant to 42 U.S.C. § 1983 for unconstitutional policies, customs, and failure to train against Maricopa County, MCCHS, Arpaio, and the MCSO. Count Four alleged a claim pursuant to 42 U.S.C. § 1983 for deliberate indifference to medical needs against all county employee Defendants. And, Count Five alleged a claim pursuant to 42 U.S.C. § 1983 for loss of consortium against all Defendants. In lieu of filing answers to the Amended Complaint, Defendants filed Motions to Dismiss.
On September 23, 2011, the Court granted in part and denied in part Defendants' Motions to Dismiss. The Court found that Plaintiffs' claims based on violation of the Privileges and Immunities Clause of the Fourteenth Amendment; Plaintiffs' claims based on cruel and unusual punishment; Plaintiffs' claims based on equal protection; Plaintiffs' claims for vicarious liability/respondeat superior; Plaintiff Elijah McClurg's state law claims against Maricopa County; and non-jural entities MCCHS and the MCSO, were all dismissed from this action based on the Court's previous ruling. In addition, for the reasons set forth in the Court's prior ruling, the Court dismissed Plaintiffs' state law claims against the remaining Defendants. Further, the Court determined that Defendants Malinchalk, Patterson, Hernandez, Hargrove, Barker, and Lamarre were dismissed from this action in its entirety. The Court, however, concluded that Plaintiffs' claims alleged pursuant to 42 U.S.C. § 1983 against Maricopa County and Arpaio regarding the conditions of confinement and medical care, as well as, Plaintiffs' related claims for loss of familial association and the Estate's claims for pain and suffering remain.
As relevant to the instant Motions for Summary Judgment, within the Court's Order on Defendants' Motions to Dismiss, the Court also extended the date for completion of discovery to December 1, 2011, and for submission of dispositive motions to January 2, 2012. Thereafter, Defendants filed their Answers to Plaintiffs' First Amended Complaint and Maricopa County requested an extension of time to disclose expert witnesses. (Docs. 117, 120, 126.) According to the pleadings, prior to filing the request for extension of time, Maricopa County's counsel consulted with Plaintiffs' counsel who indicated that he did not feel experts were needed and that he would not agree to an extension of the time. (Docs. 126, 127.) Specifically, in their response to Maricopa County's request for extension, Plaintiffs state, "[t]his is a case where liability does not require expert testimony; the evidence is straightforward and easily considered by lay persons." (Doc. 127.)
The Court subsequently extended the deadline to submit expert disclosures to December 1, 2011, and noted that "[a]lthough the discovery deadline is December 1, 2011, if necessary, the Court will extend the deadline to complete expert depositions to December 21, 2011." (Doc. 128.) On November 30, 2011, Maricopa County filed a "Notice of Service of Defendant Maricopa County's Sixth Supplemental Disclosure Statement Re: Rule 26(a)(2)(B) Disclosure Statement on Expert Witnesses and Expert Disclosures." (Doc. 133.)
Maricopa County filed its Motion for Summary Judgment and Separate Statement of Facts on January 10, 2012. (Docs. 145, 146.) Arpaio filed its Motion for Summary Judgment and Separate Statement of Facts on January 12, 2012. (Docs. 147, 148.) Plaintiffs filed their Response to Defendants Motions for Summary Judgment, Request for Rule 56(d) Relief, Separate Statement of Facts, and Objections to Maricopa County's Separate Statement of Facts on February 23, 2012. (Docs. 155, 156, 157.) Arpaio and Maricopa County filed their Replies in Support of Motions for Summary Judgment March 12, 2012. (Docs. 158, 161.)
Plaintiffs' request for oral argument will be denied because the parties have fully briefed the issues and oral argument will not aid in the Court's decision. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Development Corp., 933 F.2d 724, 729 (9th Cir. 1991).
A review of Plaintiffs' pleadings reveals that Plaintiffs have failed to cite to specific portions of the record to support the bulk of their allegations set forth in both their Separate Statement of Facts and Objections. Rather, Plaintiffs make general citations to groups of records (e.g., "Yavapai Medical Records," "Maricopa County Records," "Maricopa County Medical Records," "Yavapai County records"), requiring the Court to sift through documents to find evidentiary support for Plaintiffs' positions. Additionally, the Court has found at least one instance in which Plaintiffs reference documents that are not in the record, and multiple instances wherein Plaintiffs fail to provide any support in the record and, instead, counsel paraphrases what he believes the record states and interjects argument on the issue. Facts and exhibits which are immaterial to controverting Defendants' Motions for Summary Judgment will not be considered. Moreover, unsupported conclusory statements, as well as, attachments without any explanation as to whether or not they contain evidence showing that there is a genuine issue for trial will not be considered. "A party may not prevail in opposing a motion for summary judgment by simply overwhelming the district court with a miscellany of unorganized documentation." Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir. 1982).
The Court also notes that Plaintiffs have failed to comply with Local Rule 56.1(e). Local Rule of Civil Procedure 56.1(e) states that "[m]emoranda of law filed in support or in opposition to a motion for summary judgment ... must include citations to the specific paragraph in the statement of facts that supports assertions made in the memoranda ... ." Plaintiffs have not provided any citations in their memorandum to specific paragraphs in their statement of facts. This Court has no responsibility on summary judgment to "scour the record in search of a genuine issue of triable fact," Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996), but rather "may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). The Court may grant "summary judgment where there [is] a violation of 'a pertinent local rule expressly indicat[ing] that the [nonmoving party] had an affirmative burden to list genuine issues with appropriate record citations in order to withstand the motion for summary judgment." Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2001) (quoting Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. La. Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988)).
Lastly, Plaintiffs attempt to support some of their factual allegations with the affidavit of private investigator Steven Bakos. (Doc. 156-3.) It appears that Mr. Bakos was asked to prepare a "chronology of facts" based upon his experience as a law enforcement officer and investigator. (Id. at ¶3.) Mr. Bakos has not been disclosed as an expert, and the record does not demonstrate that he is a qualified expert, medical or otherwise. At times, however, Mr. Bakos' chronology speculates regarding Mr. McClurg's medical treatment and/or condition, yet he fails to provide any factual or medical basis for his assertions.
BACKGROUND
The following facts are derived from Plaintiffs' First Amended Complaint; documents in this Court's record; and the exhibits and attachments supplied with Maricopa County's Separate Statement of Facts, Arpaio's Separate Statement of Facts, and Plaintiff's Separate Statement of Facts and Objections (where discernible and relevant).
The record indicates that David Wayne McClurg was transferred from the Yavapai County jail to the Maricopa County jail on October 23, 2007. When he was initially booked into the Maricopa County jail, Mr. McClurg was first seen by the medical staff and received an intake medical assessment wherein he was asked a number of questions about his medical history. In the assessment, Mr. McClurg did not state that he was diabetic; he did not state that he required a special diet or that he had any special needs; he never indicated that he suffered from any leg pain, numbness or weakness; he denied a history of hospitalization; and denied having vision problems. He did indicate that he had high blood pressure.
Soon after he was booked, Mr. McClurg fell on two separate occasions - once on October 29, 2007, and then again on November 26, 2007. According to the record, he was seen by medical personnel on each occasion and received a physical examination after the October 29, 2007 fall.
Mr. McClurg was seen again by medical on December 6, 2007, for gradually increasing edema (swelling) in his foot. Upon examination it was noted that there was a pulse and sensation present in the foot and he was prescribed Lasix (a diuretic) and KCl (potassium chloride) and treated for the edema. He had daily care for the edema for a period of seven days. On December 10, 2007, Mr. McClurg, who was assigned to a cell by himself, fell off the top bunk, suffering a head laceration and cut lip. His wounds were treated and he was transported to Maricopa Medical Center ("MMC") for evaluation. Mr. McClurg was apparently treated at MMC and returned to jail.
Mr. McClurg explained that he was sleeping on the top bunk and fell off when he had a dream. It is unclear why he was on the top bunk as the record indicates that he was in a cell by himself and had the option of sleeping on the bottom bunk.
On December 11, 2007, Mr. McClurg returned to medical as he was bleeding from his scalp and had a swollen foot. He was monitored by jail medical staff and was then sent back to MMC for further evaluation and treatment, and was ultimately admitted. He remained in MMC until February 19, 2008, when he was admitted into the infirmary at Maricopa County jail. Mr. McClurg was released from custody on February 22, 2008.
On September 24, 2008, seven months after being released from custody, Mr. McClurg died. According to the death certificate, the immediate cause of death was myocardial infarction (heart attack) due to atherosclerosis (blocked arteries).
DISCUSSION
I. Plaintiffs' Request for Rule 56(d) Relief
In their Response to Defendants' Motion for Summary Judgment, Plaintiffs request that the proceedings be delayed pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, so that Plaintiffs have an opportunity to provide "affidavits of and obtain addition information about [Mr.] McClure's treating physicians, to dispute the claims made by Defendants' experts."
Defendants have presented evidence from two experts, Mark Buchanan, M.D. and Vincent L. Rowe, M.D., to establish that Mr. McClurg's medical problems and death were directly caused by severe arterial and vascular disease he had developed over a period of many years - prior to his incarceration at the Maricopa County jail . (Doc. 146, Exhs. 2, 4.) According to the experts, Mr. McClurg's disease was exacerbated by his long-standing "heavy" smoking habit, which ultimately, caused Mr. McClurg to require hospitalization, to undergo amputations of his digits and lower extremity, and to have a heart attack seven months after being released from custody.
Federal Rule of Civil Procedure 56(d) allows the Court to defer consideration of a summary judgment motion where the non-movant shows that "it cannot present facts essential to justify its opposition" and therefore needs to conduct additional discovery. "But this rule requires discovery only 'where the non-moving party has not had the opportunity to discover information that is essential to its opposition.'" Roberts v. McAffee, Inc., 660 F.3d 1156, 1169 (9th Cir. 2011) (quoting Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001)). A district court that denies a Rule 56(d) motion abuses its discretion "only if the movant diligently pursued its previous discovery opportunities, and if the movant can show how allowing additional discovery would have precluded summary judgment." Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002) (internal quotation omitted).
Having reviewed the record, the Court finds that Plaintiffs have not shown that they diligently pursued their previous discovery opportunities - including obtaining statements from treating physicians and retaining the appropriate experts. Not only did Plaintiffs fail to pursue these avenues of discovery, they also failed to depose Defendants' experts or any of the personnel involved in Mr. McClurg's care.
When the Court submitted its ruling on the second set of Motions to Dismiss, it also extended the deadline for discovery to December 1, 2011. Thereafter, Maricopa County requested an extension of time to disclose expert witnesses. Plaintiffs objected, indicating that they did not feel experts were needed. Counsel stated, "[t]his is a case where liability does not require expert testimony; the evidence is straightforward and easily considered by lay persons." The Court subsequently extended the deadline to submit expert disclosures to December 1, 2011, and noted that "[a]lthough the discovery deadline is December 1, 2011, if necessary, the Court will extend the deadline to complete expert depositions to December 21, 2011." On November 30, 2011, Maricopa County filed its notice of service of expert disclosure. Plaintiffs' never requested to depose any of the Defendants' experts or submitted their own experts in response thereto - despite knowing that Defendants intended to pursue expert opinions in this case.
Moreover, Plaintiffs' have failed to identify specific facts essential to their opposition. In his affidavit, counsel simply claims that "it is incumbent upon Plaintiffs, if necessary to controvert the conclusory statements, to contact multiple physicians to provide additional evidentiary support" regarding underlying disease processes, treatment, and cause of death. Counsel also states that Maricopa County's experts are not qualified; that their proposed testimony is based upon incomplete information; and that "[n]owhere have Defendants, by their Motions or any supporting documentation, controverted the essential disease process of [Mr.] McClurg, and they have wholly ignored multiple medical records contained in the file."
Thus, based on the foregoing, Plaintiffs' request for Rule 56(d) relief will be denied. Plaintiffs have failed to diligently pursue discovery and identify specific facts that are essential in opposing summary judgment.
II. Defendants' Motions for Summary Judgment
A. Legal Standards
1. Summary Judgment
A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323. If the moving party meets its initial responsibility the burden then shifts to the opposing party who must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id. at 250; Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed.R.Civ.P. 56 (c). At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.
2. Constitutional Claims
To prevail on any § 1983 claim, a plaintiff must demonstrate that he suffered a specific injury as a result of specific conduct of a defendant and show an affirmative link between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). There is no respondeat superior liability under § 1983, and, therefore, a defendant's position as the supervisor of persons who allegedly violated a plaintiff's constitutional rights does not impose liability. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691-92 (1978); Taylor, 880 F.2d at 1045. To prevail on a claim against a supervisory official, the civil rights complainant must demonstrate that the official personally participated in the constitutional deprivation or that the supervisory official was aware of widespread abuses and, with deliberate indifference to the inmate's constitutional rights, failed to take action to prevent further misconduct. See Ortez v. Washington County, Or., 88 F.3d 804, 809 (9th Cir. 1996); Taylor, 880 F.2d at1045; King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); see also Monell, 436 U.S. at 691-92.
Liability may be imposed on the County and Arpaio, in his official capacity, if a plaintiff establishes that (1) he was deprived of a constitutional right and (2) the defendant had a policy, practice, or custom that (3) amounted to deliberate indifference to the constitutional right and (4) was the "moving force" behind the constitutional violation. See Mabe v. San Bernardino County, 237 F.3d 1101, 1110-11 (9th Cir. 2001) (quoting Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)). The Ninth Circuit recently reiterated that three ways exist to meet the policy, practice, or custom requirement for municipal liability under § 1983:
Because claims for damages against County officials in their official capacities are effectively claims against the County itself, the claims against Arpaio in his official capacity are duplicative. See Brandon v. Holt, 469 U.S. 464, 471-72 (1985).
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(1) the plaintiff may prove that a public entity employee committed the alleged constitutional violation pursuant to a formal policy or a longstanding practice or custom, which constitutes the standard operating procedure of the local government entity; (2) the plaintiff may establish that the individual who committed the constitutional tort was an official with "final policy-making authority" and that the challenged action itself thus constituted an act of official government policy; or (3) the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action.Avalos v. Baca, 596 F.3d 583, 587-88 (9th Cir. 2010) (quoting Avalos v. Baca, 517 F.Supp.2d 1156, 1162 (C.D. Cal. 2007)). An unconstitutional policy need not be formal or written to create municipal liability under § 1983. The policy must, though, be "permanent and well settled as to constitute a custom or usage with the force of law." Id. (quoting Avalos, 517 F.Supp.2d at 1162). In addition, the failure to train may only serve as the basis for liability if it amounts to deliberate indifference to the rights of those with whom employees have contact. See City of Canton v. Harris, 489 U.S. 378, 388 (1989). The policymaker must have made a "deliberate" or "conscious" choice from among various alternatives, and it must be shown that the training is both inadequate and representative of established policy. See id. at 389-90.
3. Medical Claim
Although a pretrial detainee's claim for unconstitutional conditions of confinement arises from the Due Process Clause, the Eighth Amendment provides a minimum standard of care for determining a plaintiff's rights when confined. See Anderson v. County of Kern, 45 F.3d 1310, 1312-1313, as amended, 75 F.3d 448 (9th Cir. 1995). To prevail on a claim under the Eighth Amendment for prison medical care, a prisoner must demonstrate "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. See id. To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. See Jett, 439 F.3d at 1096.
But mere claims of "indifference," "negligence," or "medical malpractice" do not support a claim under § 1983. See Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). Inadequate treatment due to malpractice or even gross negligence does not constitute an Eighth Amendment violation. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. Moreover, differences in judgment between an inmate and prison medical personnel regarding an appropriate medical diagnosis or treatment are not enough to establish a deliberate indifference claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
B. Analysis
In their Motions for Summary Judgment, Defendants contend that Plaintiffs' claim of deliberate indifference, including the derivative claims of loss of familial association and pain and suffering, should be dismissed as Plaintiffs have failed to demonstrate any personal involvement by Arpaio or identify any unconstitutional policy, practice, or custom giving rise to an alleged constitutional violation. In response, Plaintiffs reiterate that the unconstitutional policies, procedures, and customs of Maricopa County and Arpaio caused Mr. McClurg's death. Relying primarily on the Findings of Fact and Conclusions of Law set forth in Graves v. Arpaio, 2008 WL 4699770 (D. Ariz. Oct. 22, 2008) to support their claims, Plaintiffs assert that there have been many cases that "evidence patent inadequacies" in Maricopa County jails.
As stated, to prevail on any § 1983 claim, Plaintiffs must demonstrate that Mr. McClurg suffered a specific injury as a result of specific conduct of Defendants and show an affirmative link between the injury and the conduct of Defendants. See Rizzo, 423 U.S. at 371-72, 377. Plaintiffs have failed to link an injury to Arpaio. There is simply no evidence demonstrating that Arpaio personally participated in the alleged violation, that he was aware of the violation, or that his policies caused a violation. See Ortez, 88 F.3d at 809; Taylor, 880 F.2d at 1045; see also Monell, 436 U.S. at 691-92. And, Arpaio's position as the supervisor of persons who allegedly violated Mr. McClurg's constitutional rights does not impose liability on him. See Monell, 436 U.S. at 691-92; Taylor, 880 F.2d at 1045.
Likewise, Plaintiffs introduce no evidence of a policy, practice, or custom that gave rise to any alleged constitutional violation. Plaintiffs' response consists of nothing more than sweeping conclusory statements unsupported by factual material stating that Mr. McClurg received deficient medical care pursuant to a policy, practice, or custom of Maricopa County or Arpaio. As such, Plaintiffs' response is insufficient to defeat summary judgment. See Taylor, 880 F.2d at 1045.
Indeed, Plaintiff has not presented any deposition testimony or other discovery materials related to a policy or custom governing medical care at the jail. Although Plaintiffs attempt to recount the deficiencies in Mr. McClurg's care, Plaintiffs simply fail to demonstrate that Defendants were acting pursuant to an "in-house" policy that Defendants made a "deliberate choice" to enforce. See Canton, 489 U.S. at 389-90. Further, Plaintiffs' allegation that there was a lack of training is too general to establish that the alleged deficient medical care was caused by Maricopa County or Arpaio's failure to properly train employees or that the training was actually inadequate, or even that Mr. McClurg's care over the course of a four-month period (which included extended periods of care at Maricopa Medical Center) was representative of an established policy or custom at the jail. See Celotex Corp., 477 U.S. at 324 (party opposing summary judgment "must go beyond the pleadings and ... designate specific facts" showing a material factual dispute).
As for Plaintiffs' reliance on the findings by the federal court in Graves v. Arpaio, those findings are simply not relevant to this discussion. Moreover, standing alone, remedial orders, such as that entered in Graves, cannot serve as a substantial basis for a § 1983 claim for damages because such orders do not create "rights, privileges, or immunities secured by the Constitution and laws." Green v. McKaskle, 788 F.2d 1116, 1123-24. Rather, remedial orders are the means by which unconstitutional conditions are corrected. See id. at 1123. And, to the extent the Graves order notified Defendants of deficiencies in medical care at the jail, that order was not issued until October of 2008 - eight months after Mr. McClurg was released from custody.
As a result, there is nothing in the record to demonstrate that Mr. McClurg's alleged inadequate medical care stemmed from a policy or custom promulgated by Defendants as opposed to negligence or malpractice, which does not support a constitutional claim. See Broughton, 622 F.2d at 460 (neither negligence nor medical malpractice establishes a sufficiently culpable state of mind required to show deliberate indifference).
Defendants are also entitled to summary judgment with respect to Plaintiffs' claim for loss of familial association. While it is clearly established that a child possess a constitutionally protected liberty interest in the companionship and society of his or her parent, Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 371 (9th Cir. 1998), the right to familial association can only be violated if there is an underlying due process violation. See, e.g., Lee v. City of Los Angeles., 250 F.3d 668, 685 (9th Cir. 2001) ("[T]he state's interference with [the right of familial association] without due process of law is remediable under 42 U.S.C. § 1983.") (quoting Kelson v. City of Springfield, 767 F.2d 651, 654-55 (9th Cir. 1985) (internal quotation marks omitted). Plaintiffs are unable to demonstrate that Defendants' violated Mr. McClurg's constitutional rights and, as such, summary judgment is appropriate on Plaintiffs' claim for loss of familial association.
Lastly, Defendants assert that Plaintiffs are neither entitled to punitive damages nor damages for pre-death pain and suffering for the alleged violations of § 1983. The Court need not address these issues because there can be no damages under § 1983 where there is no underlying constitutional violation.
Therefore,
IT IS ORDERED that Defendant Maricopa County's Motion for Summary Judgment (Doc. 145) and Defendant Sheriff Joseph Arpaio's Motion for Summary Judgment (Doc. 147) are GRANTED;
IT IS FURTHER ORDERED that Plaintiffs' Request for Rule 56(d) Relief (Doc. 155) is DENIED;
IT IS FURTHER ORDERED that the Clerk of Court must terminate this action and enter judgment accordingly.
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Michelle H. Burns
United States Magistrate Judge