Opinion
No. C 04-1130 CW.
July 21, 2005
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Defendant Tabula Rasa Treatment Homes, Inc., (Tabula Rasa) moves for summary judgment in its favor, or in the alternative for summary adjudication of the claims against it. Plaintiff Jeffrey Buchanan opposes the motion. Defendants County of Alameda (the County) and Wayne Tucker also move for summary judgment in their favor, or in the alternative for summary adjudication of the claims against them. Plaintiff opposes the motion with respect to his claims against the County, but does not oppose dismissal of his claims against Defendant Tucker.
The matter was heard on July 8, 2005. Having considered all of the papers filed by the parties and oral argument on the motions, the Court GRANTS Defendants' motions for summary judgment.
BACKGROUND
This case arises out of Plaintiff's attempted suicide while he resided at a treatment facility for juvenile sex offenders owned and operated by Tabula Rasa. The facts are undisputed and drawn from the contemporaneous records of the State court and the Alameda County Probation Department, unless otherwise noted.Plaintiff was born in 1985. On October 10, 2001, he was convicted of sexually molesting a step-sibling in violation of California Penal Code § 288.5(a) and placed on probation. At that time, the Alameda County Juvenile Court determined that Plaintiff's continued residence in his family home would be contrary to his welfare, and he was adjudged a ward of the court and committed to the care and custody of the Probation Department. Upon consideration of the Probation Department's report, including the clinical evaluation of a Psychiatric Social Worker, the State court ordered as a probation condition that Plaintiff be placed in a licensed residential sex offender treatment program. On December 11, 2001, Plaintiff was placed in a Tabula Rasa group home, pursuant to a contract executed between Tabula Rasa and the County for his treatment. The State court approved the placement.
The Court grants Defendant Tabula Rasa's request for judicial notice of the Alameda County Superior Court's two October 10, 2001 Orders placing Plaintiff under the care of the Probation Department and setting forth the terms and conditions of Plaintiff's probation, as well as the Superior Court's September 13, 2002 Ex Parte Order allowing Plaintiff to take Paxil.
Tabula Rasa is a private, non-profit organization licensed by the State of California's Department of Social Services. Mandery Decl. ¶ 2. It accepts juvenile sex offenders from the County and other counties in Northern California. Id. ¶ 4. It does not provide treatment for all of the County's juvenile sex offenders and may reject any applicant; an individual's acceptance into the program is "contingent upon a thorough review of the documents provided by the County concerning the minor as well as an interview to determine whether they are suitable for placement into the program." Id. ¶ 3. According to Michael Cholerton, Director of Juvenile Services for the Probation Department at the time of Plaintiff's placement, Tabula Rasa enjoyed a good reputation and a long-term relationship with the Probation Department. Cholerton Decl. ¶ 15.
The Probation Department supervises and monitors the children it sends to Tabula Rasa. However, the Probation Department does not provide input or recommendations regarding the day-to-day operation of the group home, nor does it have any control over treatment plans or therapy. Mandery Decl. ¶ 6.
Beginning in December, 2001, Plaintiff's treatment was supervised by Tabula Rasa employee Kathy Steenberg, a licensed clinical social worker, and included at least one individual and one group therapy session per week. Deputy Probation Officer Heather Rogers became Plaintiff's probation officer in March, 2002, at which point she became aware of his suicidal tendencies. Rogers Decl. ¶ 8. However, she did not at that time raise the issue with her supervisors or anyone at the Probation Department, assuming that Tabula Rasa was dealing with the issue by "making sure he went to his medical appointments, his psychiatric appointments, by communicating." Rogers Dep. 29:10-21. Every month, Officer Rogers met with Plaintiff and visited with Tabula Rasa staff. See Rogers Decl., Ex. 2, Monthly Visit Documentation Forms, March 20, April 25, May 22, June 29, July 18, August 29, September 16, October 29, November 21 and December 19, 2002; January 23, February 27, March 31 and April 30, 2003. She also reviewed Tabula Rasa's initial report and subsequent quarterly reports concerning Plaintiff's condition, treatment, needs and goals. Id., Ex. 1, January 25, 2002, Appraisal/Needs and Services Plan; Ex. 3, Quarterly Reports, June 18, 2002, November 11, 2002, and March 4, 2003. According to Michelle Mandery, executive director of Tabula Rasa, the group home also uses a daily log to track medications administered, but this daily log is not saved, and Plaintiff's has been destroyed. Davis Decl. Ex. A, Mandery Dep. 44-46.
Plaintiff objects to the Appraisal, Needs and Services Plan and the Quarterly Reports on the grounds of hearsay. Plaintiff's objections are overruled as moot; the Court does not rely on these documents for truths about Plaintiff's condition, but as evidence of Officer Rogers' record-keeping and the parties' understanding at the time.
In her June 18, 2002 report, Ms. Steenberg recommended that Plaintiff be evaluated for depression, based in part on his own self-reporting of chronic and episodic depression, including weight loss, suicidal ideation, and social impairment. Id., Ex. 3, at D-88. Based on Ms. Steenberg's recommendation, Officer Rogers obtained a referral for Plaintiff be evaluated by a psychiatrist. However, Officer Rogers testified at her deposition that she would have referred Plaintiff to a psychiatrist, even if the Tabula Rasa staff had not recommended that she do so, because she is "not an expert when it comes to mental health issues." Rogers Dep. 26:4-12.
Dr. Sukhmani Kaur Gill, a psychiatrist at Pathways to Wellness, a clinic with a contract with the County, examined Plaintiff in August, 2002 and diagnosed him with major depressive disorder, dysthymic disorder and anxiety disorder. She prescribed the anti-depressant drug Paxil. This medication was not approved for pediatric use. On September 13, 2002, the Alameda County Juvenile court granted an ex parte request by Officer Rogers to allow Plaintiff to take Paxil in dosages of up to 40 milligrams. Officer Rogers was aware that Paxil was not approved for pediatric use, but was not concerned because she knew that not every medication taken by children had been tested and approved for them, and she deferred to the judgment of the treating psychiatrist. Rogers Dep. 37:6-20, 39:1-15. According to Officer Rogers' request to the court, Plaintiff's last attorney of record was not contacted because she no longer handled juvenile matters, but Plaintiff's mother, Cynthia Ramirez, "was most definitely in agreement with the prescription," had "noticed that his behavior was extremely manic," and was "fearful that he would commit suicide." Ms. Ramirez now states that had she been informed that Paxil was not recommended for pediatric use, she would not have supported theex parte request, and would have taken efforts to have an attorney appointed for her son. Ramirez Decl. ¶¶ 2-3.
Plaintiff filed his complaint against Dr. Gill as well. However, he did not oppose Dr. Gill's motion to dismiss the claims against her for failure to state a claim and lack of subject matter jurisdiction. The Court granted that motion on February 2, 2005.
On October 7, 2002, Dr. Gill or another psychiatrist at Pathways to Wellness reissued Plaintiff a prescription for Paxil in 10 milligram dosages. On November 1, 2002, the dosage was increased to 20 milligrams, a prescription which was reissued following evaluations performed on December 6, 2002, January 10, 2003 and February 6, 2003. Ms. Steenberg's November 11, 2002 report noted,
Monitoring and follow-up appointments will occur to ensure the medications [sic] effectiveness. Also long-term psychoanalytic therapy is concurrently the treatment modality for his depressive symptoms. . . .
Over the last three weeks, Jeff's highs (manic symptoms) and lows (depressive symptoms) appear to be less intrusive. His affect appears to be more age appropriate and his social timing less intrusive and less inappropriate. These recent changes can presumably be attributed to the psychotropic medication.
Nov. 11, 2002 Report at D-83, D-85.
On February 18, 2003, Plaintiff disclosed to Ms. Steenberg that he had devised a method for attempting suicide. As part of her response, Plaintiff and Tabula Rasa staff wrote a "no-suicide plan" in which he committed "to not harm himself and to immediately inform any staff on duty whenever he ha[d] such thoughts." Rogers Decl., Ex. 8, February 18, 2003 Tabula Rasa Incident Report. Tabula Rasa expert witness Dr. James R. Missett describes a no-suicide plan or contract as "a therapy tool widely used in the psychiatric community to enlist the assistance of the patient into the treatment protocol." Missett Decl. ¶ 10. Plaintiff was reportedly placed on "one-on-one supervision." Incident Report at D-76.
Officer Rogers was informed of Plaintiff's suicidal ideation and the no-suicide plan. She testified that this was something that should have been brought to the attention of her supervisors; however, she does not recall having any conversations with anyone at her office about the incident report. Rogers Dep. 55:13-18.
In her March 3, 2003 report, Ms. Steenberg noted that Plaintiff's depressive and manic symptoms had increased that quarter; she attributed this to an "increased sensitivity to rejection and self-loathing" due to his disclosure in therapy of his own past sexual abuse. Mar. 3, 2003 Quarterly Report at D-72. Also on March 3, 2003, Plaintiff's prescription dosage was increased to 30 milligrams and remained elevated after an April 10, 2003 evaluation. In addition to the medication, Tabula Rasa placed Plaintiff
on a special program to elevate his depressed mood. He is to do physical activity two times a day along with using positive self-talk to combat his defeatist and self-loathing attitudes. He is also to talk to staff immediately when he is feeling depressed or having suicidal thoughts. He is on close supervision to further maintain his safety.
Mar. 3, 2003 Quarterly Report at D-73.
On the evening of May 7, 2003, Plaintiff was in his room, "crying, upset and depressed." Buchanan Dep. 80:5-6. His roommate found him and informed Anthony Page, a Tabula Rasa employee. Plaintiff informed Mr. Page that he wanted to kill himself; Mr. Page successfully got Plaintiff to calm down "a little bit," and then told him to go back to bed. Id. 82:1-11.
The next day, Plaintiff was woken up by Tabula Rasa staff between 6:30 and 7:00, ate breakfast, and left for his continuation school. Although Plaintiff was seen at school, he did not go to class, and instead walked into an oncoming traffic lane of United States Highway 50. Plaintiff was struck by a vehicle and sustained significant bodily injuries. Tabula Rasa executive Michelle Mandrey informed Officer Rogers of Plaintiff's suicide attempt that day. Tabula Rasa employees later discovered multiple suicide notes written by Plaintiff.
Tabula Rasa's expert, Dr. Missett, has reviewed the relevant documents in this case. He opines that the County's placement of Plaintiff at Tabula Rasa was appropriate; that Tabula Rasa's provision of Paxil to Plaintiff was in accordance with the recommendation of his treating psychiatrists and the State court's order and within the applicable standard of care; that Tabula Rasa staff at all times provided Plaintiff with the care and treatment that was reasonable and appropriate and within the applicable standard of care for a group home; and that no act or omission by Tabula Rasa staff was a substantial factor in causing Plaintiff's injuries. ¶¶ 5, 9, 13-17.
Plaintiff objects to Dr. Missett's Declaration on the grounds that he failed to review Plaintiff's psychiatric records; he relies on hearsay comments contained within Ms. Steenberg's Quarterly Reports; and his opinion relies on an "incomplete (and possibly erroneous) set of facts."
Plaintiff's objections are overruled. Dr. Missett clearly states that he reviewed Plaintiff's "medical records" and "all documents produced by Plaintiff," and in a supplemental declaration he states that, assuming all of the additional facts identified by Plaintiff are true, his opinions would remain the same. Under Federal Rule of Evidence 703, Dr. Missett may rely for his opinion on otherwise inadmissible facts or data. Plaintiff makes no claim that Ms. Steenberg's Quarterly Reports are not of the type reasonably relied upon by experts in the field, nor does Plaintiff suggest that Ms. Steenberg's Reports would not generally be admissible if properly authenticated.
In its December 6, 2004 Order Granting in Part and Denying in Part Defendant Tabula Rasa's Motion to Dismiss, the Court dismissed Plaintiff's claim for negligence against Tabula Rasa on the grounds that it was immune from liability under California Government Code § 845.8. Plaintiff pursues claims against Tabula Rasa under 42 U.S.C. § 1983 for violation of his constitutional rights, including violation of his right to personal security under the Fifth Amendment; deliberate indifference to his medical needs in violation of the Eight Amendment; and failure to provide medical care in violation of the Fourteenth Amendment. Plaintiff also brings a State law claim for battery against Tabula Rasa. In addition, Plaintiff brings a claim against the County for the maintenance of policies or customs exhibiting a deliberate indifference to the constitutional rights of a person with whom it had a special relationship. Plaintiff has dismissed his previous claims against Dr. Gill, and does not oppose dismissal of his claims against Mr. Tucker.
LEGAL STANDARD
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324;Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists."Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.
DISCUSSION
I. Constitutional Claims Against Tabula Rasa
Tabula Rasa moves for summary adjudication of Plaintiff's constitutional claims against it on the grounds inter alia that there is an absence of evidence to support Plaintiff's contention Tabula Rasa acted with deliberate indifference.
Both parties agree that the standard of "deliberate indifference" applies to all of Plaintiff's constitutional claims under 42 U.S.C. § 1983. See, e.g., Daniels v. Williams, 474 U.S. 327, 330 (1986) (holding that due process clause not implicated by negligent State act causing unintended loss of life).
It is not clear what Plaintiff believes constitutes evidence of Tabula Rasa's deliberate indifference to him. In his opposition, Plaintiff suggests that the issue is "whether it knew of Plaintiff's suicidal tendencies." Am. Opp. at 14. The record clearly shows that Tabula Rasa staff were indeed aware of Plaintiff's suicidal tendencies, and that they took what they believed to be appropriate steps in response. As part of that response, they administered to Plaintiff the medication that was prescribed by his treating psychiatrists, who evaluated him monthly. This medication was also approved by the State court. Plaintiff has failed to produce evidence sufficient to raise a triable issue of material fact regarding Tabula Rasa's deliberate indifference to him. Indeed, Plaintiff has failed to rebut Dr. Missett's expert opinion that Tabula Rasa was not negligent.
Plaintiff accuses Tabula Rasa of deliberate spoliation of the evidence, based on its failure to keep Plaintiff's daily medication logs. Plaintiff claims that this creates an adverse inference that Tabula Rasa was in fact deliberately indifferent to his medical needs. As the Ninth Circuit explained in Akiona v. United States, courts may draw adverse inferences from the destruction of evidence relevant to a case,
based on two rationales, one evidentiary and one not. The evidentiary rationale is nothing more than the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document. . . .
The other rationale for the inference has to do with its prophylactic and punitive effects. Allowing the trier of fact to draw the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial.938 F.2d 158, 161 (1991). Here, however, these rationales are inapplicable and insufficient. Nothing in the record shows that Tabula Rasa destroyed Plaintiff's records in response to this litigation. Furthermore, Plaintiff's primary theory is that Tabula Rasa's administration of Paxil caused him harm. The Court will infer, in the absence of the daily medical logs, that Tabula Rasa did indeed administer Paxil to Plaintiff, but this fact, in itself, does not constitute evidence of deliberate indifference.
Therefore, the Court grants Tabula Rasa's motion for summary adjudication of Plaintiff's federal constitutional claims against it. It need not reach Tabula Rasa's arguments that these claims are prohibited because it is not a State actor, or, in the alternative, that the claims are prohibited under Monell v. Dep't of Soc. Serv., 43 U.S. 658, 694 (1978) and that Tabula Rasa is entitled to qualified immunity.
II. Battery Claim
Tabula Rasa moves for summary adjudication of Plaintiff's State law claim against it for battery, on the grounds that it is unsupported by the evidence. Title 28 U.S.C. § 1367(c)(3) authorizes a federal district court to exercise supplemental jurisdiction over State law claims even after it has dismissed all claims over which it has original jurisdiction.
In order to establish this claim, Plaintiff must show evidence sufficient to raise a triable issue of material fact regarding the elements of battery. A California Court of Appeal set forth those elements in the context of medical treatment as follows,
A battery is any intentional, unlawful and harmful contact by one person with the person of another. A harmful contact, intentionally done is the essence of a battery. A contact is "unlawful" if it is unconsented to. The elements of a civil battery are: 1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; 2. Plaintiff did not consent to the contact; and 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.
Piedra v. Dugan, 123 Cal. App. 4th 1483, 1495 (2004) (internal quotation marks, ellipses and citations omitted).
In Piedra, which also involved allegedly harmful medical treatment to a minor, it was the parents' consent to treatment that was in dispute. For wards of the court, however, California law provides that "only a juvenile court judicial officer shall have authority to make orders regarding the administration of psychotropic medications for that child." Cal. Welf. Inst. Code § 369.5(a). Tabula Rasa argues that the administration of Paxil to Plaintiff was not "unlawful" because it was duly authorized by the Alameda County Superior Court's September 13, 2002 Order.
Plaintiff counters that the order is void because, as stated on its face, it was issued ex parte without contacting an attorney for Plaintiff. Yet Plaintiff cites no legal authority that supports this position. Indeed, § 369.5(a) requires only that an order regarding administration of psychotropic medication be based on "a request from a physician, indicating the reasons for the request, a description of the child's diagnosis and behavior, the expected results of the medication, and a description of any side effects of the medication." Plaintiff does not dispute that these requirements were met. The legal authority cited by Plaintiff is inapposite and does not suggest that the order was invalid simply because it was issuedex parte. See Becker v. S.P.V. Construction, 27 Cal. 3d 489, 493-496 (1980) (reversing a trial court order vacating default judgment in construction contract case); Burtnett v. King, 33 Cal. 2d 805, 807-808 (1949) (setting forth California law requirements for default judgment). There is no evidence that Tabula Rasa was aware that the order had been issued without contacting a lawyer, or that that was improper, if it was.
In light of the State court order authorizing the administration of Paxil in dosages of up to 40 milligrams, Tabula Rasa's dispensation of the medicine to Plaintiff cannot be the kind of "intentional, unlawful and harmful contact" that constitutes battery. Therefore, the Court grants Tabula Rasa's motion for summary adjudication of the battery claim.
III. Monell Claim Against County
The County moves for summary adjudication of Plaintiff's claim, pursuant to Monell, that it violated 42 U.S.C. § 1983 by developing and maintaining policies or customs exhibiting a deliberate indifference to the constitutional rights of persons with whom it had a special relationship, including Plaintiff.
"To impose liability on a government entity for failing to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he deprived; (2) that the municipality had a policy; (3) that this `amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the `moving force behind the constitutional violation.'" Oviatt v. Pearce, 954 F.2d 1470, 1474 Cir. 1992) (citing City of Canton, 489 U.S. 378, 389-91 (1989)). the liability of municipalities does not depend upon the liability individual officers, it is contingent on a violation of constitutional rights. Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994), cert. denied, 515 U.S. 1159 (1995). At the hearing, Plaintiff identified Officer Rogers as the individual who violated his constitutional rights.
Plaintiff identifies as "the crux" of his claim against the an alleged violation of his rights under the Eighth Amendment because he was "confined under conditions posing a risk of `objectively, sufficiently serious' harm and that the officials had a `sufficient culpable state of mind' in denying the proper medical care." Clem v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (quoting Wallis v. 70 F.3d 1074, 1076 (9th Cir. 1995)). However, Plaintiff does not conditions posing a risk of objectively, sufficiently serious harm. Even assuming arguendo that the Paxil prescription was a "condition" posing a risk of such harm, Plaintiff offers no evidence to suggest that Officer Rogers or any other County employee had a "sufficiently culpable state of mind" in creating this condition.
Plaintiff notes numerous alleged discrepancies or gaps in the record which he implies indicate deficiencies in Officer Rogers' supervision, e.g., her failure to recall whether she brought the February 18, 2003 incident report to the attention of her Probation Department supervisors. However, Plaintiff never explains how these alleged deficiencies support his claim that the County confined him under conditions of sufficiently serious harm or that doing so amounted to deliberate indifference to his rights. The record before the Court shows only that Officer Rogers relied on Tabula Rasa and Plaintiff's treating best interest. Despite Plaintiff's suffering, there is no evidence that Officer Rogers' trust was misplaced or inappropriate, much less that it represented a policy of deliberate indifference to Plaintiff's constitutional rights.
Therefore, the Court grants the County's motion for summary adjudication of the Monell claim against it.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants Tabula Rasa and the County's motions for summary judgment (Docket Nos. 71 and 60, respectively). Tabula Rasa's request for judicial notice is GRANTED (Docket No. 73). Plaintiff's claims against Wayne Tucker are dismissed with prejudice.
The Clerk shall enter judgment accordingly. Each party shall bear its own costs of the action.
IT IS SO ORDERED.