Opinion
3:21-cv-00131-YY
02-04-2022
EDDIE SANTOS, Plaintiff, v. NAPHCARE, INC., an Alabama corporation; WASHINGTON COUNTY, a state body in the State of Oregon; PAT GARRETT, in his capacity as Sheriff of Washington County; ROBERT DAVIS, an individual; JULIE RADOSTITZ, M.D., an individual; CASEY GLADNEY, an individual; RACHEL ECLEVIA, an individual; MARTHA ROJO, an individual; AIMEE ZERFAS, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Eddie Santos has brought suit for injuries he allegedly suffered while in the custody of the Washington County Jail. Defendants are Washington County (“Washington County” or “the County”), Washington County Sheriff Pat Garrett, former Washington County Administrator Robert Davis, NaphCare, Inc. (“NaphCare”), and various NaphCare medical professionals. Plaintiff's claims are summarized as follows:
First Claim for Relief: 42 U.S.C. § 1983 claim for violation of Fourteenth Amendment rights against all individual capacity defendants;
Second Claim for Relief: Section 1983 claim for violation of Fourteenth Amendment rights against Washington County and NaphCare;
Third Claim for Relief: Section 1983 claim for violation of Fourteenth Amendment rights against Sheriff Pat Garrett, Robert Davis, NaphCare, and Julie Radostitz in their supervisory capacity;
Fourth Claim for Relief: State tort claim for negligence against NaphCare and Washington County, acting by and through their employees and agents.First Am. Compl. (“FAC”) 12-18, ECF 33.
Defendants Washington County, Sheriff Pat Garrett, and Washington County Administrator Robert Davis (“County defendants”) have filed a Motion to Dismiss (ECF 35). After the motion was filed, plaintiff filed a First Amended Complaint. ECF 33. County defendants maintain that the First Amended Complaint does not cure the deficiencies, and the parties agree that County defendants' motion to dismiss should be applied to the First Amended Complaint.
For the reasons discussed below, County defendant's motion should be GRANTED IN PART and DENIED IN PART.
I. Rule 12(b)(6) Standards
To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).
A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept all well-pleaded material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).
The court addresses the claims in the order in which the County defendants' motion was briefed.
A. Notice Under Oregon Tort Claims Act
County defendants contend that plaintiff's state law claim for negligence is barred because he failed to comply with the notice requirement of the Oregon Tort Claims Act (“OTCA”). Mot. 6, ECF 35.
The OTCA governs actions in which a plaintiff seeks relief for torts committed by officers, employees, or agents of a public body within the scope of their employment or duties. O.R.S. 30.675(2). For claims other than wrongful death, “[n]otice of claim shall be given . . . within 180 days after the alleged loss or injury.” O.R.S. 30.275(2)(b). Notice may be satisfied by formal notice, actual notice, or commencement of an action within the applicable time period. O.R.S. 30.275(3)(a)-(c); see O.R.S. 30.275(5) (describing formal notice); O.R.S. 30.275(6) (describing actual notice). “The purpose of the notice requirement [is] to allow the public body an opportunity to investigate a matter promptly and to settle all meritorious claims without litigation.” Flug v. Univ. of Or., 170 Or.App. 660, 671 (2000), aff'd, 335 Or. 540 (2003) (citation omitted). “[N]otice must actually be received within the period in order to be timely.” Tyree v. Tyree, 116 Or.App. 317, 320 (1992).
Plaintiff alleges he was incarcerated in the Washington County Jail for almost eight months, from January 28, 2019, until August 9, 2019, during which time he was denied medications and treatment for medical and mental health conditions. FAC 35, ECF 33. The parties dispute the exact date on which notice was received by the County. The notice letter is dated Tuesday, January 7, 2020, and indicates it was sent “Via First Class Mail and Electronic Mail.” ECF 36-2. The County contends it did not receive the notice until Friday, January 10, 2020. Stuart Decl., Ex. 1, ECF 36. For purposes of deciding County defendants' motion to dismiss, it is unnecessary to decide the factual question of when the County actually received notice; suffice to say, the 180 days began to run on either July 11, 2019, or July 14, 2019. Many of the events alleged in the First Amended Complaint occurred before those dates. Plaintiff argues his negligence claim is nevertheless timely because it was a continuing tort.
The First Amended Complaint alleges no date but instead states, “Notice as required by the Oregon Tort Claims Act was provided to defendant Washington County within the statutorily prescribed time frame.” FAC ¶ 58, ECF 33.
Oregon courts have distinguished between a continuing course of conduct that involves discrete acts, each of which would be actionable separately, and a series of acts constituting a “continuing tort.” Pearson v. Reynolds Sch. Dist. No. 7, 998 F.Supp.2d 1004, 1027 (D. Or. 2014). “[A]t the heart of the continuing tort idea is the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.” Davis v. Bostick, 282 Or. 667, 671-72 (1978).
In Davis, the plaintiff brought suit against her ex-husband for a series of acts he had committed against her. The plaintiff claimed that, in 1973, the defendant struck her and broke her nose. 282 Or. at 669. Later that year, he choked her and threatened to kill her. Id. The following year, he again threatened to kill her and destroyed some of her personal property. Id. A year later, he destroyed more of her property, threatened her with a loaded pistol, and harassed her mother. Id.
The Oregon Supreme Court held that the actions did not constitute a continuing tort because “a separate cause of action certainly could have been asserted after each of defendant's nefarious acts in 1973 and 1974.” Id. at 673. “The acts were discontinuous in the sense that each had a beginning and an end, each was separated from the next by some period of relative quiescence, and each was capable of producing compensable harm.” Id. at 673. The plaintiff “was harmed by each act in the series, ” id. at 674, and each act was “separately actionable because they caused harm.” Id. at 672. The Oregon Supreme Court further reasoned, “surely the cause of action ‘accrued' at some time . . . or, to put it another way, a cause of action does not reaccrue every time another distress is inflicted.” Id. at 674. It was not like a continuing tort where “the harm complained of . . . [reaches] the level of actionability only at the end of the series of” actions. Id. Instead, the defendant's conduct “repeatedly reached the level of actionability.” Id. Finally, the Oregon Supreme Court found, “We do not think she was entitled to ride out the storm and lump sum her grievances.” Id.
Similarly, in Boardmaster Corp. v. Jackson Cty., 224 Or.App. 533, 553-54 (2008), the court found there was no continuing tort where “due to Jackson County's failure to order Pacific Power to restore power, harm from the county-ordered termination continued unabated, with consequent ever-increasing damages to plaintiffs.” The court explained, “[t]hat contention confuses continuing harm with continuing tortious conduct.” Id. at 554 (emphasis in original).
By contrast, Griffin v. Tri-Met, 112 Or.App. 575, 577 (1992), aff'd in part and rev'd in part on other grounds, 318 Or. 500 (1994), “involved a paradigmatic continuing tort.” Boardmaster, 224 Or.App. at 551. There, the plaintiff, a Tri-Met dispatcher, claimed Tri-Met violated former O.R.S. 659.425(1), by discriminating against him based on his positive diagnosis for HIV. The plaintiff claimed:
“During and after October 1987, Tri-Met, through its General Manager, James Cowen, and its supervisors, including Defendant Denson, took actions to deliberately place extraneous stress on plaintiff in his work environment, including:
“ * * * * *
“c. On November 12, 1987, reprimanding plaintiff and threatening to discharge him for using the sick leave to which he was entitled;
“d. On October 15, 1987, demanding that plaintiff provide letters of consent to his doctors so that Tri-Met could privately investigate plaintiff's health;
“e. On October 10, 1987, threatening plaintiff with suspension if he did not provide a list of medications prescribed for his illness * * *.”Griffin, 112 Or.App. at 581. The court held:
[T]he October and November, 1987 acts, although separate incidents, are not the type of discrete, permanent events that would likely support separate actions for wrongful discrimination. Instead, they can be reasonably construed as elements of a systematic pattern of conduct, aimed at causing plaintiff's eventual termination.Id. at 582.
Here, plaintiff alleges that he suffers from “multiple persistent ailments, including chondrocalcinosis, ” which “is a progressive disease that causes calcium crystals to build up in joint cartilage, ” causing knobby swelling and inflammation at joints, pain, stiffness, and difficulty moving.” FAC ¶ 21, ECF 33. To control his chondrocalcinosis and avoid its debilitating symptoms, plaintiff must take prescribed medications, including colchicine and allopurinol, and avoid eating foods high in purine, which exacerbates his symptoms. Id. ¶ 22.
Plaintiff alleges that although colchicine was ultimately approved and administered to him at various times during his incarceration, the County and NaphCare were negligent in failing to maintain a sufficient quantity of the medication to give him the necessary dosage every day, id. ¶ 26, “thereby causing him to miss doses and seriously and irreversibly aggravating his chondrocalcinosis.” Id. ¶ 56(a). Plaintiff also claims these defendants were negligent in that they never sought or obtained a prescription for allopurinol, id. ¶ 56(c), and “fail[ed] to provide [him] with a diet that would have prevented the serious and irreversible aggravation of his medical condition.” Id. ¶ 56(e).
Plaintiff alleges he “continues to experience difficulty with his joints, particularly in his hands, where the calcium deposits had built up so much that his finger joints became knobbly and difficult to move.” FAC ¶ 36, ECF 33. He says, “They will never be the same, ” and he has “difficulty holding objects and performing basic daily tasks, ” even “pick[ing] a penny up off of a table.” Id. ¶ 36.
Plaintiff has alleged a continuing tort. Again, the question is whether “the harm complained of . . . [reaches] the level of actionability . . . at the end of the series of” actions. Davis, 282 Or. at 674. While plaintiff has alleged a series of separate incidents, including the repeated failure to administer necessary medications and give him meals low in purine, plaintiff clearly alleges that it is the culmination of these failures that caused the “serious and irreversible aggravation of his medical condition” and permanent disfigurement.
Plaintiff also alleges that the County and NaphCare were negligent “[i]n failing to provide him with prednisone to reduce his pain and suffering and alleviate his condition when he experienced flareups.” FAC ¶ 56(b), ECF 33. Plaintiff describes eleven incidents where he experienced flare-ups of his condition, which caused inflammation in his joints, intense pain, and inability to move. Id. ¶ 27. For example, plaintiff describes an incident on February 7, 2019, when he experienced swelling and felt extreme pain, and it took ten days for “medical to come see him to address his complaints.” Id. Plaintiff alleges that “[e]ach time [he] reported a flareup of his condition, NaphCare staff gave him prednisone for several days until the inflammation and associated pain subsided.” Id. ¶ 29.
These flareups are relevant to plaintiff's claim for negligence stemming from the County and NaphCare's failure to properly treat him for chondrocalcinosis, discussed above. They tend to prove that defendants did not provide plaintiff with his necessary medication on a regular and continuous basis. Plaintiff alleges that “[t]hese flareups would not have occurred, or would have been lessened in severity, if plaintiff has a consistent, regular dosage of colchicine or allopurinol.” Id. ¶ 28.
However, these flareups, and the resulting pain, “were discontinuous in the sense that each had a beginning and an end, each was separated from the next by some period of relative quiescence, and each was capable of producing compensable harm.” Davis, 282 Or. at 673. Again, plaintiff alleges that “[e]ach time [he] reported a flareup of his condition, NaphCare staff gave him prednisone for several days until the inflammation and associated pain subsided.” FAC ¶ 29, ECF 33. Thus, to the extent plaintiff alleges a separate cause of action for each of these incidents, those that fall outside the 180-day notice period are barred. As the Oregon Supreme Court held in Davis, plaintiff is not “entitled to ride out the storm and lump sum [his] grievances.” 282 Or. at 674.
B. Discretionary Immunity-Sheriff Garrett and Davis
County defendants next move to dismiss the “state claims” against Sheriff Garrett and Davis because they have discretionary immunity pursuant to O.R.S. 30.265(6)(c). Mot. 9, ECF 35. However, the only state law claim in this case is plaintiff's negligence claim, which is alleged against defendants NaphCare and Washington County, not Sheriff Garrett and Davis. While plaintiff alleges that NaphCare and Washington County were “acting by and through their employees and agents, ” FAC ¶ 56, ECF 33, he ultimately seeks monetary damages against only NaphCare and Washington County, not Sheriff Garrett and Davis. Id. ¶ 57. At oral argument, plaintiff's counsel confirmed that he alleges his state law claims against NaphCare and Washington County only.
Proper conferral would have alleviated the need for a motion on this issue.
C. Substitution of County for Sheriff Garrett and Davis
County defendants contend that O.R.S. 30.272 and O.R.S. 30.273 require that the County must be substituted for Sheriff Garrett and Davis. Again, however, plaintiff does not assert a negligence claim against Sheriff Garrett and Davis.
Again, proper conferral would have alleviated the need for a motion, and saved the court's resources in having to review this aspect of County's defendants' motion.
III. First Claim-Fourteenth Amendment Claim Against Sheriff Garrett and Davis (Individual Capacity)
County defendants next contend that plaintiff has failed to allege any specific individual conduct by Sheriff Garrett and Davis to support a Fourteenth Amendment claim. Mot. 9, ECF 35.
“Liability under section 1983 arises only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under section 1983.” Id.
Because plaintiff was a pretrial detainee at the time of the alleged constitutional violation, the Fourteenth Amendment applies. “[C]laims for violations of the right to adequate medical care ‘. . . under the Fourteenth Amendment' must be evaluated under an objective deliberate indifference standard.” Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). A pretrial detainee must show: (1) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in similar circumstances would have appreciated the high degree of risk-making the consequences of the defendant's conduct obvious; and (4) by not taking such measures, the defendant caused the plaintiff's injuries. Id. at 1125.
“With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each particular case.'” Id. (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016)) (alteration in original). The “‘mere lack of due care by a state official' does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Id. (quoting Castro, 833 F.3d at 1070). “[T]he plaintiff must prove more than negligence but less than subjective intent-something akin to reckless disregard.” Id.
A. Failure to Provide Medical Care
Plaintiff claims that his Fourteenth Amendment rights were violated by “employees and agents” of Washington County in that they were deliberately indifferent to his serious medical needs by failing to provide him with a regular and consistent supply of colchicine, failing to seek a prescription for allopurinol, failing to provide him with prednisone in a timely and sufficient manner, and failing to provide him with prompt medical attention to his serious medical needs, among other actions. FAC ¶ 41, ECF 33.
However, plaintiff makes no allegations that Sheriff Garrett or Davis individually “participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045. Therefore, his claim against them fails in this regard. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th Cir. 2018) (“The record in this case does not establish that Sheriff Baca supervised the day-to-day operations of TTCF, that he was personally involved in any constitutional deprivation King may have suffered, or the requisite causal connection for liability in his individual capacity.”).
B. Failure to Enact Audit Report Recommendations
Plaintiff also alleges that Sheriff Garrett and Davis were “deliberately indifferent to his serious medical needs in failing to fully enact the recommendations of the Washington County Auditor, including but not limited to those regarding quality of medical care and minimum staffing levels.” FAC ¶ 42, ECF 33.
To his complaint, plaintiff has attached the Audit of Jail Healthcare report dated November 24, 2014, FAC, Ex. 3, ECF 36-3, as well as the November 19, 2015 First Follow-Up Report, Id., Ex. 4, ECF 36-4, and the April 9, 2018 Third and Final Follow-Up Report. Id., Ex. 5, ECF 36-5. In the original audit report, the auditors expressly stated that “[e]valuating the quality of care provided to inmates was beyond the scope of this audit, and we express no opinion on the quality of care provided.” Id., Ex. 3, at 8, ECF 36-3 (emphasis added). Instead, the report observes that the County Administrator's Office had “suggested this audit due to significant increases in jail healthcare costs and substantial overruns of the jail healthcare budgets from FY2007 through FY2010.” Id. at 5. The audit was intended to address the following questions:
• Did the County effectively administer the contract?
• Were the terms of the contract appropriate?
• What caused the budget overruns?
• Did the County take appropriate steps to contain costs?Id. The auditors concluded that “[c]ertain terms of the jail healthcare contract did not adequately protect County interests, ” “[f]rom FY2007 to FY2010 the County did not forecast and include sufficient funds in the jail healthcare budget to cover jail healthcare costs, ” and “[t]he County and its contractor have taken steps to control healthcare costs, but should consider additional options.” Id. The audit report contains 27 recommendations, including ones to “more efficiently administer the contract, ” “avoid or limit budget overruns in jail healthcare, ” and “more efficiently control costs.” Id.
Regarding staffing, the audit observes that the “[t]he contract administrator did not require the contractor to meet the explicitly defined minimum staffing requirements of the contract.” FAC, Ex. 3, at 9, ECF 36-3. “Instead, he granted the contractor a degree of flexibility in staffing that was inappropriate for a contract of this nature, ” “failed to implement an effective system to ensure the jail was staffed with the appropriate number and types of healthcare staff at all times, ” and failed to “determine whether staffing specifications were met or whether the staffing actually provided was adequate to ensure quality of care.” Id. at 10. Accordingly, the 2018 final audit report continued to recommend that “[t]he County should engage a jail healthcare consultant, independent of the healthcare contractor, to develop minimum staffing requirements for the” jail and that the contractor should be required to “report staffing at the same level of detail as staffing requirements specified in the contract.” Id., Ex. 5, at 5, ECF 36-5.
The 2018 final report indicates that, of the 27 original recommendations, nine recommendations had not been implemented and four recommendations had been partially implemented. Id., Ex. 5, ECF 36-5. The unimplemented recommendations are:
(1) The County should assign responsibility for ensuring the quality of jail healthcare to a qualified medical professional independent of the vendor, such as the County Health Officer. Policies and procedures for jail healthcare should be subject to approval by the County's qualified medical professional and the Sheriff.
(2) The County should require that the contractor's quality assurance program be approved by the County's qualified medical professional.
(3) The County should engage a jail healthcare consultant, independent of the healthcare contractor, to develop minimum staffing requirements for the WCJ.
(4) The contract administrator should monitor and enforce compliance with minimum staffing requirements.
(5) The contract administrator should require the contractor to report staffing at the same level of detail as staffing requirements specified in the contract.
(6) The contract administrator should negotiate appropriate reductions in the contract fee in connection with any reductions in the scope of work.
(7) The contract administrator should monitor and enforce compliance with provisions of the County's Standard Terms and Conditions included in the jail healthcare contract.
(8) Requirements for line healthcare staffing should be specified in the contract by number of hours per position, per day and per shift. Administrative and contracted positions should be specified as full-time equivalents with scheduling flexibility. The contract should make clear that specifications are minimum staffing requirements and that the contractor must provide any additional staffing necessary to meet its contract obligations without additional compensation, unless the contract fee is modified by contract amendment.
(9) The County should engage a third party medical billings auditor, on a contingency fee basis, to audit hospital billings for inmate care.FAC, Ex. 5, ECF 36-5.
The partially implemented recommendations are:
(1) The County should validate the results of the vendor's quality assurance process by periodically auditing cases randomly selected from the pool of cases reviewed by the vendor.
(2) The County should ensure the jail healthcare contract provides specific remedies for nonperformance, including specific damages for understaffing by the contractor.
(3) The County should evaluate the cost effectiveness of contracting for independent utilization review services to monitor external referrals.
(4) The County should evaluate the feasibility and cost-effectiveness of implementing a program to facilitate the enrollment of eligible WCJ inmates in health coverage under the ACA.Id.
County defendants argue that the complaint fails to sufficiently allege the four required Fourteenth Amendment factors as to Sheriff Garrett and Davis: (1) “there are no specific allegations that either Sheriff Garrett or Mr. Davis made any intentional decisions with respect to the conditions under which [plaintiff] was confined, ” Mot. 10, ECF 35, (2) their failure to implement the audit recommendations did not put plaintiff at “substantial risk of suffering serious harm, ” id., (3) “[n]o reasonable official in Sheriff Garrett's or Mr. Davis' circumstances, when considering contract administration, budgetary efficiencies and cost-effective measures, would have appreciated any risk to an AIC almost five years later for damages due to inadequate care for chondrocalcinosis, ” and “the nine unimplemented contract administration suggestions would not have abated the risk of damages for inadequate medical care, ” id. at 11, and (4) plaintiff “fails to causally connect the failure to implement the nine recommendations to his injuries. All his allegations revolve around inadequate medical care, which was not considered in any Auditor's report and not within the scope of contract administration issues taken up or declined by Sheriff Garrett or Mr. Davis.” Id. at 11-12. County defendants further argue that, at most, plaintiff's “claims sound in negligence and do not rise to the level of deliberate indifference.” Id. at 12.
Indeed, plaintiff has failed to allege how the failure of Sheriff Garrett and Davis to follow the audit report recommendations constituted deliberate indifference to his medical needs or how this caused him harm. In Wilgus v. Bannister, the plaintiff alleged that “internal audits discovered that [Nevada Department of Corrections] medical staff only worked five to five and a half hours of their ten hour shifts, ” and claimed “if they had worked their entire shift, his medical care would not have been so delayed.” No. 3:13-CV-00368-MMD, 2015 WL 1506074, at *13 (D. Nev. Mar. 31, 2015). In granting summary judgment, the district court observed that plaintiff “provide[d] no evidence that this was the case with respect to the medical staff who treated him” at the facilities in which he was incarcerated. Id. at *39. “Irrespective of the deficiencies reported in the audit, there is no evidence of deliberate indifference to Plaintiff's medical needs; therefore, the audit report is irrelevant.” Id. (emphasis added). The Ninth Circuit affirmed, finding “[t]he district court properly granted summary judgment on Wilgus's deliberate indifference claim because Wilgus failed to raise a genuine issue of material fact as to whether defendants were aware of and disregarded an excessive risk to Wilgus's health.” Wilgus v. Bannister, 719 Fed.Appx. 721 (9th Cir. 2018) (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (noting elements of deliberate indifference claim)).
This holding is stated in the magistrate judge's report and recommendation, which was adopted in its entirety. See 2016 WL 1506074, at *8.
While Wilgus was decided on summary judgment, the same reasoning applies here. As in Wingus, the audit report in this case contains a general reference to “understaffing.” FAC, Ex. 3, at 10, ECF 36-3. Moreover, like Wilgus, plaintiff has failed to specifically and plausibly allege how this general reference to understaffing, or even Sheriff Garrett and Davis's failure to follow the audit recommendations with respect to staffing, constituted deliberate indifference to his medical needs or caused him harm.
Plaintiff argues “[d]efendants bend over backwards to say that the Auditor reports did not address quality of medical care.” Resp. 7, ECF 46. Plaintiff claims “[t]his is false, as the Auditor addressed the County's failure to ensure independent approval of NaphCare's quality control program, and staffing levels inherently affect the quality of medical care and attention patients receive.” Id. Plaintiff relies on language from the Final Report that states: “We did review the processes implemented by the contract administrator to monitor quality of care and concluded they did not provide the County with reasonable assurance that quality care was being provided.” Stuart Decl., Ex. 3, at 8, ECF 36-3. But immediately preceding this sentence, the Final Report makes clear that: “Evaluating the quality of care provided to inmates was beyond the scope of this audit, and we express no opinion on the quality of care provided.” Id.
It is also clear that the audit was conducted “due to significant increases in jail healthcare costs and substantial overruns of the jail healthcare budgets, ” and that staffing requirements were scrutinized because “[t]he contract administrator did not require the contractor to meet the explicitly defined minimum requirements of the contract” and “[i]nstead . . . granted the contract a degree of flexibility in staffing that was inappropriate for a contract of this nature.” Id. at 9-10. The Final Report observed that “[f]ailing to enforce minimum staffing requirements may . . . have increased other County costs for jail healthcare, ” including referrals to external physicians, ER visits, hospital admissions, and pharmaceutical expenses, which were higher when staffing went below specified minimums. Id. at 10.
Moreover, alleging an inherent harm based on the audit report is not enough to assert a claim that Sheriff Garrett and Davis were deliberately indifferent to his medical needs and caused him harm. See Wilgus, supra. Plaintiff's claim that he did not receive the promised weekly mental health treatment sessions helps to illustrate this point. See FAC ¶ 34, ECF 33. The audit references understaffing of the registered nurse position and “significant understaffing of several other positions, ” but says nothing about a lack of staffing by mental health professionals. Thus, plaintiff has failed to allege the individual conduct by Sheriff Garrett and Davis's in failing to follow the audit's recommendations constituted deliberate indifference. “Irrespective of the deficiencies reported in the audit, there is no evidence of deliberate indifference to Plaintiff's medical needs.” Wilgus, 2015 WL 1506074, at *13 (emphasis added).
IV. Second Claim-Monnell
In his second claim, plaintiff asserts a Fourteenth Amendment claim against defendants Washington County and NaphCare pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). FAC ¶¶ 46-49, ECF 33. Under Monell, the County may be liable for a constitutional violation under 42 U.S.C. § 1983 based on: “(1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). A plaintiff also “may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).
A “policy” is a “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). A “custom” is a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). “The custom must be so ‘persistent and widespread' that it constitutes a ‘permanent and well settled . . . policy.'” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Id.
The “first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Castro, 833 F.3d at 1075 (citation omitted). “A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011).
A plaintiff also must establish deliberate indifference, for example, that “the policy amounted to deliberate indifference of a constitutional violation, ” Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001), or that “the deficiency in training actually caused the police officers' indifference to her medical needs.” City of Canton, Ohio v. Harris, 489 U.S. 378, 391-92 (1989). “To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983.” Id. “‘[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).
Unless there is a single violation with a “highly predictable consequence, ” id. at 398, there must be a pattern of similar constitutional violations to demonstrate deliberate indifference, Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bryan Cnty., 520 U.S. at 409).
A. Policy, Practice, or Custom
The County argues that while plaintiff “alleges policies, practices and customs, ” he “does not cite the specific adopted official policies or widespread or longstanding practices or customs that are unlawful or directing employees to act in an unlawful matter.” Mot. 15, ECF 35.
“Since Iqbal, courts have repeatedly rejected conclusory Monell allegations that lack factual content from which one could plausibly infer Monell liability.” Wilson ex rel. Bevard v. City of W. Sacramento, No. CIV. 2:13-2550 WBS, 2014 WL 1616450, at *2 (E.D. Cal. Apr. 22, 2014) (citing Rodriguez v. City of Modesto, 535 Fed.Appx. 643, 646 (9th Cir. 2013) (affirming district court's dismissal of Monell claim based only on conclusory allegations and lacking factual support)). “In order to withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more than mere ‘formulaic recitations of the existence of unlawful policies, conducts or habits.'” Cook v. Cty. of Contra Costa, No. 15-CV-05099-TEH, 2016 WL 913395, at *4 (N.D. Cal. Mar. 10, 2016). In Cook, the court dismissed a Monell claim without prejudice where the plaintiff made “conclusory allegations that his medical needs were ignored due to some unspecified ‘policy' or ‘unconstitutional practice/de facto policy.'” Id. at *5. The court recognized “the inherent difficulty of identifying specific policies absent access to discovery, ” but observed it “is nonetheless the burden of plaintiffs in federal court.” Id. (citing Roy v. Contra Costa Cty., No. 15-CV-02672-TEH, 2016 WL 54119, at *4 (N.D. Cal. Jan. 5, 2016)). The court held, “[s]uch a burden is especially important here, where it is facially implausible that the County maintains an official, County-sanctioned policy to ignore discharge instructions and deny inmates' necessary medical care.” Id.
In Rodriguez, the complaint alleged: “It is the custom and common practice of the CITY OF MODESTO has a custom and common practice of failing to appropriately discipline its police officers for acts of misconduct, especially the use of excessive force against persons being arrested.” No. CV F 10-1370 LJO MJS, First Am. Compl., ECF 16.
Here, plaintiff alleges a Monell violation based on a “policy, practice and/or custom of failing or refusing to implement the recommendations of the Washington County Auditor.” FAC ¶ 47(a). Again, that claim fails for the reasons discussed above.
Plaintiff also alleges a Monell violation based on:
b. A policy, practice and/or custom of failing to meet widely accepted community standards of care regarding medical services for detainees or inmates who are ill and/or suffering chronic health conditions; [and]
c. A policy, practice and/or custom of denying detainees and inmates access to appropriate, competent, and necessary care for serious medical needs.
When the entire complaint is construed in the light most favorable to plaintiff, it contains sufficient factual allegations to plausibly allege a Monell claim based on policy, practice, and/or custom of denying inmates regular and necessary medical treatment, including prescribed medications on a daily basis, FAC ¶ 26, ECF 33, a daily diet free of substances harmful to a medical condition, id. ¶ 32, and sessions with a counselor to treat serious mental health symptoms, such as panic attacks and trichotillomania. Id. ¶ 34. Plaintiff has sufficiently alleged deliberate indifference-“Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal quotation marks omitted). Plaintiff also has sufficiently alleged that this policy, practice, and/or custom was the “moving force” behind his pain, suffering, emotional distress, and permanent physical injury, and irreversible exacerbation of his medical condition. FAC ¶ 54, ECF 33.
B. Final Policymakers
Plaintiff asserts a Monell claim based on the decisions made by Sheriff Garrett and Davis as final policymakers as follows:
Defendants Garrett and Davis had final policymaking authority for Washington County jail at all relevant times to this complaint, and their decision to implement the policies, practices, and customs described above caused Mr. Santos's injuries, both physical and emotional. Washington County is also liable for the negligence and deliberate indifference of NaphCare's deficient policies, training, and supervision, because Washington County has a nondelegable duty to ensure adequate medical care is provided to those held in the jail.Id. ¶ 48. County defendants argue “[t]here is no Monell liability based on omissions by Sheriff
Garrett or Mr. Davis.” Mot. 12, ECF 35.
In response to the motion, plaintiff again relies on decisions, or omissions, by Sheriff Garrett and Davis in relation to the audit. Resp. 7-8, ECF 46. But, as discussed above, plaintiff has failed to allege a causal link, i.e., a moving force, between the generalized staffing issues discussed in the audit and the lack of care he received. Thus, this aspect of plaintiff's Monell claim fails.
However, to the extent plaintiff alleges that defendants Garrett, as the sheriff, and Davis, as the county administrator, had final policymaking authority over the policy, practice, and/or custom of denying detainees regular and necessary treatment for their chronic injuries, that claim survives. The Ninth Circuit has explained the relevant inquiry as follows:
When determining whether an individual has final policymaking authority, we ask whether he or she has authority “in a particular area, or on a particular issue.” McMillian v. Monroe County, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (emphasis added). For a person to be a final policymaker, he or she must be in a position of authority such that a final decision by that person may appropriately be attributed to the District.Lytle v. Carl, 382 F.3d 978, 983 (9th Cir. 2004).
There may be a factual issue as to whether Sheriff Garrett and Davis were actually final policymakers with respect to the purported policy, practice, and/or custom alleged. At this stage, however, the court must accept all well-pleaded material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson, 668 F.3d at 1140. Here, plaintiff sufficiently alleges Monell liability against the County based on allegations that Sheriff Garrett and Davis “had final policymaking authority for Washington County jail at all relevant times to this complaint.” FAC ¶ 48, ECF 33.
C. Ratification
County defendants contend there are no allegations that Sheriff Garrett or Davis ratified a subordinate's unconstitutional decision or action. Mot. 12, 14, ECF 35.
To establish Monell liability based on ratification, a plaintiff must allege that a final policymaker “knew of and specifically made a deliberate choice to approve” a constitutional violation. See Model Civ. Jury Instr. 9th Cir. 9.7 (2020). “A single decision by a . . . policymaker may be sufficient to trigger Section 1983 liability under Monell, even though the decision is not intended to govern future situations, but the plaintiff must show that the triggering decision was the product of a ‘conscious, affirmative choice' to ratify the conduct in question.” Lassiter v. City of Bremerton, 556 F.3d 1049, 1055 (9th Cir. 2009) (citation and internal quotation marks omitted).
Here, the Monell claim alleges that “NaphCare and Washington County ratified . . . the unconstitutional actions and omissions of Defendants and their employees or actions.” FAC ¶ 47, ECF 33. It does not allege the Sheriff Garrett or Davis ratified anything. Thus, the complaint fails to allege a Monell claim based on ratification by Sheriff Garrett and Davis.
D. Failure to Train
“Monell liability can arise from a failure to train, supervise, or discipline that amounts to an official policy of deliberate indifference to an individual's constitutional rights.” Nordenstrom for Est. of Perry v. Corizon Health, Inc., No. 3:18-CV-01754-HZ, 2021 WL 2546275, at *13 (D. Or. June 18, 2021) (citing Horton, 915 F.3d at 602-03). “A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick, 563 U.S. at 61 (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 822-23 (1985)). “Only where a municipality's failure to train its employees in a relevant respect evidences a ‘deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom' that is actionable under § 1983.” Harris, 489 U.S. at 389. Liability exists when “in light of the duties assigned to specific officers or employees[, ] the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers . . . can be said to have been deliberately indifferent to the need.” Id. at 388-89.
Plaintiff alleges that Sheriff Garrett and Davis, along with other defendants “failed to adequately train NaphCare staff in”:
a. The recognition of the onset and exacerbation of chronic health conditions and treatment thereof;
b. The administration and appropriate dosage of medication;
c. The need and requirement to maintain stock of medication for detainees' and inmates' chronic and/or recurring conditions;
d. Providing appropriate and timely medical care.FAC ¶ 52, ECF 33. But there is nothing in the complaint alleging that Sheriff Garrett and Davis were responsible for training NaphCare staff, who were not employees, on topics such as recognizing and treating medical conditions, and stocking and administering medication. Therefore, plaintiff has failed to sufficiently plead a failure to train claim.
V. Third Claim-Fourteenth Amendment Claim Against Sheriff Garrett and Davis (Supervisory Capacity)
As previously noted, there is no respondeat superior liability under section 1983. Taylor, 880 F.2d at 1045. However, “[a] supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (internal alteration and quotation marks omitted); Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (“[s]upervisory liability is imposed against a supervisory official in his individual capacity”).
Here, plaintiff alleges that Sheriff Garrett and Davis “in their supervisory capacities, failed to adequately train NaphCare staff” in “[t]he recognition of the onset and exacerbation of chronic health conditions and treatment thereof”; “[t]he administration and appropriate dosage of medication”; “[t]he need and requirement to maintain stock of medication for detainees' and inmates' chronic and/or recurring conditions”; and “[p]roviding appropriate and timely medical care.” FAC ¶ 52, ECF 33. This claim fails for the same reason the Monell claim fails on this ground-plaintiff has failed to allege that Sheriff Garrett and Davis were responsible for training NaphCare staff, who were not employees, on how to treat medical conditions and provide medical care.
Plaintiff also alleges that Sheriff Garrett and Davis violated the Fourteenth Amendment “in their supervisory capacities” because they “were aware of the policies, customs, or practices” that form the basis of the Monell claim, but “[d]espite that knowledge, . . . participated in, acquiesced to, and ratified the above policies, practices, and and/or customs.” Id. ¶ 51. He further alleges that their conduct was “the moving force” behind his injuries. Id. ¶ 54.
While plaintiff refers to his claim as one of “supervisory capacity, ” it appears that plaintiff is instead alleging a claim against Sheriff Garrett and Davis in their official capacity. The Ninth Circuit has held that a sheriff may be liable in his official capacity for the policies and practices of a county jail under his administrative control. King, 885 F.3d at 558.
To the extent plaintiff makes such a claim, however, it is duplicative of his Monell claim because the County is also a defendant. “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. . . . Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quotation marks and citation omitted). “There is no longer a need to bring official-capacity actions against local government officials, for under Monell, . . . local government units can be sued directly for damages and injunctive or declaratory relief.” Id. at 167 n.14. “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id. at 165; see also Lemoon v. California Forensic Med. Grp., Inc., No. 20-CV-02552-PJH, 2021 WL 5758892, at *4 (N.D. Cal. Dec. 3, 2021) (finding that claims against the sheriff “in his supervisory (or official) capacity with respect to . . . claims based on unconstitutional County . . . policies and policy omissions” were duplicative); Vance v. Cty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996) (“[I]f individuals are being sued in their official capacity as municipal officials and the municipal entity itself is also being sued, then the claims against the individuals are duplicative and should be dismissed.”).
VI. Qualified Immunity
Finally, County defendants contend that Sheriff Garrett and Davis are entitled to qualified immunity.
A. Relevant Law Regarding Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks and citation omitted). “The purpose of qualified immunity is to strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.'” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S. at 231).
“Qualified immunity shields an officer from liability even if his or her action resulted from ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'” Id. (quoting Pearson, 555 U.S. at 231). “The qualified immunity standard ‘gives ample room for mistaken judgments' by protecting ‘all but the plainly incompetent or those who knowingly violate the law.'” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)).
“Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts may exercise their discretion in deciding which prong to address first, “as they are in the best position to determine the order of decision making that will best facilitate the fair and efficient disposition of each case.” Pearson, 555 U.S. at 242.
B. Analysis
As to the first prong of the analysis, County defendants claim that Sheriff Garrett and Davis are entitled to qualified immunity because there is no constitutional violation. As discussed above, plaintiff has failed to sufficiently allege a constitutional violation against Sheriff Garrett and Davis in their individual or supervisory capacities. Therefore, it is unnecessary to reach the second prong in the analysis.
RECOMMENDATIONS
County defendants' Motion to Dismiss (ECF 35) should be GRANTED IN PART and DENIED IN PART.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, February 18, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.