Opinion
3:21-cv-00131-YY
07-09-2024
EDDIE SANTOS, Plaintiff, v. NAPHCARE, INC., an Alabama corporation; WASHINGTON COUNTY, a state body in the State of Oregon; 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 brings suit for injuries arising from the alleged lack of medical care he claims he experienced while in custody at the Washington County Jail for six and a half months, between January 28, 2019, and August 9, 2019. The remaining defendants left in this case are Washington County (“Washington County” or “the County”), NaphCare, Inc. (“NaphCare”), and various NaphCare medical professionals. Plaintiff's claims are summarized as follows:
Plaintiff's First Amended Complaint also alleged claims against Washington County Sheriff Pat Garrett and former Washington County Administrator Robert Davis but those claims were dismissed for failure to state a claim. See Findings and Recommendations, ECF 62, adopted by Order, ECF 64.
First Claim for Relief: 42 U.S.C. § 1983 claim for violation of Fourteenth Amendment rights against the individual NaphCare defendants;
Second Claim for Relief: Section 1983 Monell 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 NaphCare and Dr. Julie Radostitz in their supervisory capacities;
Fourth Claim for Relief: State law claim for negligence against NaphCare and Washington County, acting by and through their employees and agents.First Am. Compl. 12-18, ECF 33.
Defendants have filed a Motion for Summary Judgment. ECF 92. The motion should be granted as to all claims, except the state law negligence claim against NaphCare and the County.
The motion for summary judgment is signed by NaphCare's counsel but seeks dismissal of all claims against the County as well.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact by citing to the record, including “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then “go beyond the pleadings” and identify in the evidentiary record “specific facts showing that there is a genuine issue for trial.” Id. at 324.
Only disputes over facts that are outcome determinative preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, the dispute must be genuine, “such that a reasonable jury could return a verdict for the nonmoving party.” Id. There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). All rational and reasonable inferences are drawn in the nonmoving party's favor. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989).
II. First Claim-Fourteenth Amendment Claim Against Individual Defendants
Plaintiff alleges that the individual defendants violated his Fourteenth Amendment right to adequate medical care. Am. Compl. ¶¶ 40-45, ECF 33. In response to the motion for summary judgment, plaintiff concedes that any claim against defendant Gladney should be dismissed. Resp. 29, ECF 98. Therefore, the court analyzes the motion for summary judgment as it pertains to the remaining named defendants Eclevia, Zerfas, Rojo, and Radostitz.
In his First Amended Complaint, plaintiff alleges that the individual defendants were deliberately indifferent in the following respects:
a. In failing to provide [plaintiff] with a regular and consistent supply of colchicine, thereby causing him to miss doses and seriously and irreversibly aggravating his chondrocalcinosis;
b. In failing to provide [plaintiff] with prednisone in a timely and sufficient manner and dosage to reduce his pain and suffering and otherwise alleviate his condition when he experienced flareups of his condition;
c. In failing to seek or obtain a prescription for allopurinol at any time while [plaintiff] was held in Washington County jail;
d. In failing to ensure that [plaintiff's] necessary medications were kept in stock in the jail so that he did not miss necessary doses;
e. In failing to provide prompt medical attention to [plaintiff's] serious medical needs;
f. In failing to provide [plaintiff] with a diet that would have prevented the serious and irreversible aggravation of his medical condition;
g. In failing to follow the standards published by the National Commission on Correctional Healthcare;
h. In seriously and irreversibly aggravating his medical condition by failing to allow or request an outside doctor to come and treat [plaintiff];
i. In seriously and irreversibly aggravating his medical condition by failing to provide adequate staffing levels needed for minimally adequate care.First Am. Compl. ¶ 41, ECF 33.
First, the appropriate legal standard for deliberate indifference is discussed, and then the arguments pertaining to each named defendant are analyzed.
A. Objective Deliberate Indifference Standard Regarding Pretrial Detainees
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.'” Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). The court must make this determination based on “what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 576 U.S. at 397.
The “‘mere lack of due care by a state official' does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Gordon, 888 F.3d at 1125 (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. The Ninth Circuit has defined “reckless disregard” as a disregard of a risk of harm of which the defendant is aware. United States v. Rodriguez, 880 F.3d 1151, 1161 (9th Cir. 2018). “The ‘reckless disregard' standard is a formidable one.” Fraihat v. U.S. Immigr. & Customs Enf't, 16 F.4th 613, 636 (9th Cir. 2021).
Neither mere lack of due care, nor an inadvertent failure to provide adequate medical care, nor even medical malpractice, without more, is sufficient to meet this standard. Instead, a plaintiff must show that the defendant disregarded an excessive risk to the plaintiff's health and safety by failing to take reasonable and available measures that could have eliminated that risk.Id. (cleaned up). “[A]lthough medical negligence is not by itself unconstitutional, the care rendered can be so inadequate to the circumstances known to the medical staff as to amount to deliberate indifference.” Russell v. Lumitap, 31 F.4th 729, 741 (9th Cir. 2022).
B. Rachel Eclevia, RN
Plaintiff contends that Rachel Eclevia, the nurse who performed his intake screening, “did not note his rheumatology referral or request for allopurinol, delaying his ability to receive care,” and “failed to note that he should be given the prednisone that he brought with him, which resulted in a prolongation of his pain.” Id. Plaintiff asserts that, “[f]rom this evidence, a jury could conclude that . . . Eclevia was deliberately indifferent to [his] medical needs.” Id.
Pretrial detainees have “a clearly established constitutional right to have a proper medical screen conducted to ensure the medically appropriate protocol was initiated.” Gordon v. Cnty. of Orange, 6 F.4th 961, 971 (9th Cir. 2021). The “failure to medically screen new inmates may constitute deliberate indifference to medical needs.” Id. at 970. “[A]t a minimum, medical personnel at jail facilities are required to screen pretrial detainees for critical medical needs.” Id.at 971. Id.
As a charge nurse, Eclevia's primary responsibility is to “screen, triage, and evaluate incoming people at the jail to see what appropriate medical needs they may have.” Armstrong Decl., Ex. B at 2, ECF 93-2. The inquiry at intake includes whether the individuals are currently taking medications or are “supposed to be receiving any medications” that they are “not currently taking.” Meggitt Decl., Ex. 6 at 3, ECF 99-6. The process lasts 20 to 30 minutes “depending on the complexity of the person coming in or the condition.” Id., Ex. 5 at 8, ECF 99-5.
Eclevia saw plaintiff once, at intake, on January 28, 2019, after plaintiff turned himself in to the jail. Armstrong Decl., Ex. I at 88-91, ECF 93-9. Plaintiff brought medications with him, including colchicine, prednisone, norco, and cyclobenzaprine, which Eclevia inventoried for placement in plaintiff's personal property. Id. at 90-92.
Plaintiff testified that he was taking norco for the pain in his knee. Meggitt Decl., Ex. 2 at 27, ECF 99-2. It was prescribed on November 19, 2018, following his fall, which is described below. Armstrong Decl., Ex. H at 8, ECF 93-8.
Eclevia observed that plaintiff presented with “[k]nobby joints to hands and R elbow.” Armstrong Decl., Ex. I at 91, ECF 93-9. Plaintiff claims that he had some swelling in his hands at the time. Meggitt Decl., Ex. 2 at 8, ECF 99-2. Eclevia observed that plaintiff also had a brace on his left leg. Id. In November 2018, prior to his incarceration, plaintiff suffered a fall on wet pavement, at which time he complained of left knee pain and was prescribed a brace. Armstrong Decl., Ex. H at 8-10, ECF 93-8. Plaintiff also had documented “significant chondrocalcinosis” in his right knee, as evidenced by medical records from 2009. Armstrong Decl., Ex. H at 2, ECF 93-8. Plaintiff describes that, at intake, he had swelling in his left knee and was in a lot of pain, and his right knee was “even more in pain because it was compensating” for the left knee.Meggitt Decl., Ex. 2 at 23, ECF 99-2; Pl. Supp. Ex. at 53, ECF 116.
Plaintiff testified that, at intake, he described his left knee pain as 6/10. Meggitt Decl., Ex. 2 at 25, ECF 99-2.
Plaintiff testified that he “told them the name of [his condition] is chondrocalcinosis.” Meggit Decl., Ex. 2 at 23, ECF 99-2. He claims that Eclevia asked if it was a “kind of gout,” and he responded, “[y]eah, in a way.” Id. Eclevia's chart notes indicate that plaintiff described his condition as “the worst arthiritis there is.” Armstrong Decl., Ex. I at 91, ECF 93-9.
Eclevia conducted a physical assessment, which included taking plaintiff's vital signs, checking his alertness and orientation, and evaluating any flare-ups of his condition per his self report. Meggitt Decl., Ex. 5 at 10, ECF 99-5. When Eclevia filled out the physical assessment form, she did not mark any boxes indicating that plaintiff had “grossly normal strength and function of all extremities,” “gait normal with no limitations for ADLs,” and “no injuries or infections on extremities,” meaning that none of those descriptions applied to him. Id. Eclevia did not take pictures of plaintiff's condition because she “didn't think about it.” Id. at 9. She also did not recall whether the jail allowed cameras. Id.
Eclevia also assessed plaintiff with opiate withdrawal and initiated Clinical Opioid Withdrawal (COWS) assessments with a buprenorphine taper if necessary and “comfort medications.” Armstrong Decl., Ex. I at 89, ECF 93-9; see id. at 88 (“Patient reports recent and/or significant opiate use.”).
According to intake records, plaintiff reported that he had taken a dose of colchicine that day, and prednisone five days before. Armstrong Decl., Ex. I at 92, ECF 93-9. Plaintiff also reported he had not been taking prednisone as prescribed but rather took it “only when the swelling to joints gets worse.” Id. at 91.
Plaintiff testified that he “told them” at intake that he was “supposed to get [allopurinol] prescribed.” Meggitt Decl., Ex. 2 at 20, ECF 99-2; see id. (“I said, ‘Look, the only one that I haven't gotten yet is the allopurinol.'”). Plaintiff testified that “right before [he] went to jail,” he tried to see a rheumatologist “who was going to prescribe some allopurinol.” Id. at 21. When pressed about whether a rheumatologist in fact “was going to prescribe allopurinol,” plaintiff clarified that his primary care doctor “was going to do it . . . [b]ut she wanted [him] to see” a rheumatologist “first to see what they wanted to do.” Id.
Eclevia obtained a release of information from plaintiff and directed it to be sent to the pharmacy. Armstrong Decl., Ex. I at 88, ECF 93-9; Id., Ex. B at 3-4, 5, ECF 93-2. With plaintiff's permission, Eclevia also removed some colchicine from plaintiff's personal property and had it placed in a cart to be administered to plaintiff while the medication was obtained from the pharmacy. Id. at 88.
Different carts are designated for different housing pods. Armstrong Decl., Ex. B at 6, ECF 932.
Plaintiff claims that Eclevia was deliberately indifferent for failing to “note his rheumatology referral or request for allopurinol,” which “delay[ed] his ability to receive care.” Resp. 26, ECF 98. But, as plaintiff himself admits, he had not yet been prescribed allopurinol. His “regular medical provider,” Kate Molyneux, PA-C, had only made a referral to a rheumatologist “to confirm whether [he] should start taking allopurinol.” Santos Decl. ¶ 1, ECF 100; Armstrong Decl., Ex. A at 9, ECF 93-1; Meggitt Decl., Ex. 27, ECF 103-1. Moreover, Eclevia obtained a release of information from plaintiff to obtain a list of his current prescriptions from his pharmacy. Armstrong Decl., Ex. B at 3, 5, ECF 93-2; Id., Ex. I at 88, ECF 93-9. Thus, Eclevia conducted a “proper medical screen . . . to ensure the medically appropriate protocol was initiated.” Gordon, 6 F.4th at 971. Eclevia's actions do not constitute deliberate indifference.
Defendants object to this portion of plaintiff's declaration on hearsay grounds. Reply 4, ECF 108. Defendants contend that plaintiff impermissibly offers these statements to show that he needed allopurinol. Id. But plaintiff was asked about this same information by defense counsel during his deposition, at which time he answered “yes” to the question, “Dr. Kate was thinking about prescribing, or was going to prescribe allopurinol, but had not yet because she was waiting on the opinion of the rheumatologist?” Armstrong Decl., Ex. A at 9, ECF 93-1.
Plaintiff also contends that Eclevia “failed to note that he should be given the prednisone that he brought with him, which resulted in a prolongation of his pain.” Resp. 26, ECF 98. But Eclevia in fact made a notation in the intake records regarding plaintiff's prednisone prescription and use, specifically that plaintiff “reported he has not been taking prednisone as rx'd” and “[t]akes only when swelling to joints gets worse.” Armstrong Decl., Ex. I at 91, ECF 93-9. Through his testimony, plaintiff has confirmed that he only took prednisone when he “got swollen.” Meggitt Decl., Ex. 2 at 16, ECF 99-2. Thus, Eclevia accurately noted in the records that plaintiff was prescribed prednisone and took it only when the swelling got worse.
In response to the motion for summary judgment, plaintiff has submitted a declaration in which he claims that he told Eclevia he was having a “flare-up of his condition,” Santos Decl. ¶ 4, ECF 100, and argues that, in addition to colchicine, Eclevia should have also obtained some prednisone from his personal property. Resp. 5, ECF 98. Plaintiff claims “[t]hat was why I had a bottle of prednisone with me when I entered the jail,” and that he “told Ms. Eclevia that I needed to continue taking the prednisone until the prescription ran out, and that I would need a dose the following morning.” Id. Plaintiff contends that, “[a]s a result, [he] did not receive any prednisone the next day, and he was continually left without the medication for several days, until after he sent a medical request form on February 7, 2019.” Id.; see also Santos Decl. ¶ 4, ECF 100 (claiming he “did not receive any prednisone the next day, or until after I sent a medical request form on February 7, 2019”).
But there is no basis upon which to conclude that Eclevia acted with deliberate indifference in failing to also retrieve prednisone from plaintiff's personal property. Plaintiff must show more than a “mere lack of due care” and instead “something akin to reckless disregard.” Gordon, 888 F.3d at 1125. Notably, plaintiff's medical expert, Dana Reddy, M.D., does not criticize Eclevia's care of plaintiff at intake. See Armstrong Decl., Ex. N (Reddy report), ECF 93-14; Meggitt Decl., Ex. 22 (Reddy rebuttal report), ECF 99-21. Moreover, defendants' expert, Kathryn Wild, RN, MPA, CCHP-RN, opines that Eclevia acted “well within the standard of care”:
Mr. Santos was immediately screened on admission to the jail by a registered nurse who collected subjective and objective information, requested records from Mr. Santos' physician, and verified his medications. She then called the on-call provider for orders. This was well within the standard of care.
Armstrong Decl., Ex. M at 20, ECF 93-13. Accordingly, Eclevia is entitled to summary judgment.
C. Aimee Zerfas, RN
Plaintiff saw Aimee Zerfas, a nurse, on June 27, 2019. Armstrong Decl., Ex. I at 81, ECF 93-9. Plaintiff claims that although Zerfas saw that he had “chronic deformities” in his hands and “understood or should have understood” that his swelling indicated his symptoms were worsening, she did nothing more than inform him of dietary options within the jail. Resp. 27-28, ECF 98.
Zerfas saw plaintiff on June 27, 2019, after he submitted a medical request form on June 25, 2019, complaining of constipation. Armstrong Decl., Ex. J at 14, ECF 93-10. Zerfas's chart notes reflect that plaintiff was seen on June 27, 2019, because of constipation and that he “had several other complaints.” Id., Ex. I at 81, ECF 93-9. Plaintiff told Zerfas that his diet had “too many food[s] high in purines.” Id. Zerfas discussed diet with plaintiff, and plaintiff indicated he was not interested in changing to a vegan or vegetarian diet because they are too high in purines, and decided to continue with the regular diet. Id. Under these circumstances, including plaintiff's complaints about constipation, it is not surprising that Zerfas spoke with plaintiff about diet.
Plaintiff complained about the diet he was receiving in jail in other medical request forms he submitted. See Armstrong Decl., Ex. J at 5, ECF 93-10 (referencing “high purine intake . . . by diet of jail” on July 31, 2019); Id. at 13 (complaining of constipation on June 29, 2019).
Moreover, Zerfas's treatment on that date was not limited to discussing plaintiff's diet. Zerfas noted plaintiff's “[b]ilateral hands with significant swelling at joints as well as deformities and numerous pinpoint, white bumps near joint spaces.” Armstrong Decl., Ex. I at 81, ECF 939. Zerfas also noted that plaintiff “point[ed] out numerous movable hard lumps under the surface of [his] bilateral forearms.” Id. Plaintiff requested an anti-inflammatory medication for his joints, and reported that he was previously on a medication that was helpful. Id. Zerfas investigated pharmacy records and determined that plaintiff was referring to meloxicam. Id. However, Zerfas observed that plaintiff was “already on naproxen” and could “not be placed on both,” and he was continued on naproxen. Id.
Plaintiff cites to a portion Zerfas's May 24, 2022 deposition where she testified that she vaguely recalled plaintiff had “chronic” deformities and could not recall more specifics, including whether his condition had worsened over time. Resp. 28-29, ECF 98 (citing Meggitt Decl., Ex. 7 at 26, ECF 99-7). Zerfas also testified about her general “understanding” that “forms of gout or arthritis . . . sometimes worsen over time.” Id. This testimony does not show that Zerfas ignored plaintiff's condition or symptoms on June 27, 2019, particularly in light of contemporaneous chart notes reflecting that Zerfas examined plaintiff's hands and arms, noted “significant swelling” and “deformities,” and investigated his request for meloxicam. Moreover, medical records show that plaintiff received colchicine and naproxen during this time period, as well as milk of magnesia and vitamins, including doses administered by Zerfas herself on June 29, 2019. Armstrong Decl., Ex. I at 20-21, ECF 93-9.
Additionally, plaintiff claims that Zerfas fabricated a record entry that she had administered colchicine to him on March 16, 2019. Resp. 29, ECF 98; Armstrong Decl., Ex. I at 63, ECF 93-9. Plaintiff claims this is not true, as evidenced by the medical request form he submitted “one day before” in which complained about uric acid issues and his testimony that “he had not received colchicine in the previous days.” Resp. 28-29, ECF 93-9. The medical request form to which plaintiff cites is actually dated March 17, 2019, i.e., one day after plaintiff's March 16, 2019 appointment with Zerfas. Armstrong Decl., Ex. I at 33, ECF 93-9. Moreover, in the medical request form, plaintiff complained that he needed “predisone [sic] ASAP.” Id. Plaintiff did not mention or ask for colchicine.
Importantly, plaintiff has never specifically attested that he did not receive colchicine from Zerfas on March 16, 2019. See Anderson, 477 U.S. at 256-57 (“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). In his declaration submitted in response to the motion for summary judgment, plaintiff generally attests “there were many times throughout my stay in the jail that I did not receive doses of colchicine, often several doses in a row.” Santos Decl. ¶ 5, ECF 100. In response to defendants' observation that his medical request forms never once mentioned colchicine, plaintiff states, “Every time that I wrote a Medical Request Form asking jail medical staff to give me prednisone to treat a flareup, I had recently missed doses of colchicine during med pass.” Id. But plaintiff does not elaborate about how many doses he missed or when exactly he missed them, or state that Zerfas failed to administer a dose of colchicine to him on March 16, 2019. Records show that four other nurses also administered medications to plaintiff during this same time period in mid-March, 2019. Armstrong Decl., Ex. I at 62-63, ECF 93-9. Moreover, when asked about Zerfas at his deposition, plaintiff testified, “I don't even know who that is.” Pl. Supp. Ex. 128, ECF 116. Plaintiff testified that that none of the nurses had badges so he “never knew any of their names.” Id. at 95.
Plaintiff's deposition testimony offers no further specificity. At his deposition, plaintiff claimed that he did not receive colchicine for the “first easily 10 days.” Meggitt Decl., Ex. 2 at 35, ECF 99-2. With respect to the days thereafter, he testified, “I can't tell you specifically. But there was a bunch of times where they would say, ‘Oh, we ran out,' you know, ‘We don't have it in stock.'” Id. at 42 (emphasis added). Plaintiff also testified, “A lot of times. I can't tell you exactly how many. But it happened a lot . . . I would go a few days without it, you know, until they got it back in stock . . . It probably happened at least once a month. At least. You know, where I would go more than a couple days without it.” Id. at 45-46 (emphasis added).
Plaintiff's failure to “set forth specific facts showing that there is a genuine issue for trial,” Anderson, 477 U.S. at 256, prevents him from defeating summary judgment on his claim that Zerfas fabricated a record entry about administering colchicine to him on March 16, 2019. Therefore, Zerfas is entitled to dismissal of all aspects of plaintiff's claim against her.
D. Martha Rojo, NP
Plaintiff argues that Martha Rojo, a nurse practitioner, violated his rights by failing to send him “for a referral to an outsider provider, despite reviewing his outside provider records and his many in-person requests,” and that the denial of a referral to a rheumatologist was not “due to difference of medial opinion” but “rather, she simply ignored it and never addressed” his condition and believed it was “not symptomatic most of the time.” Resp. 8, 26-27, ECF 98.
Approximately two months after being released from the jail, plaintiff saw a rheumatologist, was diagnosed with gout rather than pseudogout, and was prescribed allopurinol. Armstrong Decl., Ex. L at 3, ECF 93-12. Plaintiff's expert, Dr. Reddy, a rheumatologist, opines that plaintiff's diagnosis of chondrocalcinosis/pseudogout was made by an orthopedic surgeon, and an accurate diagnosis of gout should have been “confirmed with crystal analysis from synovial fluid or biopsy under a microscope.” See Armstrong Decl, Ex. N (Reddy Report), ECF 93-14; Meggitt Decl., Ex. 22 (Reddy Rebuttal Report), ECF 99-21; Armstrong Decl., Ex. H at 2, ECF 93-8. Dr. Reddy does not mention allopurinol specifically, but observes that plaintiff “was never given uric acid lowering treatment while incarcerated, which is medically appropriate.” Armstrong Decl., Ex. N, ECF 93-14. Dr. Reddy also opines that plaintiff “was supposed to be on colchicine twice a day” to avoid flare-ups that cause permanent damage to the joints, but he “was not consistently on colchicine” and his “report of missing doses of colchicine is consistent with the frequency of flares that he experienced.” Id. In Dr. Reddy's opinion, “[p]reventing flares and treating them quickly is paramount to preventing this potential damage,” and plaintiff “has sustained permanent joint damage from lack of appropriate treatment for his gout.” Id.
On the other hand, defendants' expert, Dr. Thomas Minahan, opines that Rojo acted within the “expected standard of care for the correctional health care setting.” Armstrong Decl., Ex. L (Minahan Report) at 5, ECF 93-12. Dr. Minahan is the medical director for Riverside County Correctional Health Services and concurrently works as an emergency room physician at Riverside County Hospital. Dr. Minahan noted that plaintiff presented at the jail with his stated diagnosis of chondrocalcinosis, i.e., pseudogout. Id. at 2. Plaintiff “appeared to know his disease well” and “his prior medical records reflected his stated disease.” Id. In Dr. Minahan's opinion, “a reasonable healthcare provider would not question the working diagnosis” under the circumstances. Id. at 3. Regarding allopurinal, Dr. Minahan observes that it is effective for treating gout; however, it “is not effective in treating pseudogout,” which was plaintiff's “presumed diagnosis.” Id.
Citing Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004), Rojo argues that “[a] showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference.” Mot. Summ. J. 16, ECF 92. However, Toguchi “applied the Eighth Amendment subjective deliberate indifference standard and therefore [is] of limited relevance to the Fourteenth Amendment claims here.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 671 (9th Cir. 2021). “In cases involving ‘choices between alternative courses of treatment,' [a] plaintiff ‘must show that the course of treatment the doctors chose was medically unacceptable under the circumstances' and that ‘they chose this course in conscious disregard of an excessive risk to plaintiff's health.'” Gordon v. Cnty. of Orange, 6 F.4th 961, 970 (9th Cir. 2021); see also Fricano v. Lane Cnty., No. 6:16-cv-01339-MC, 2018 WL 2770643, at *5 (D. Or. June 8, 2018) (“[A] plaintiff must show that the denial, delay, or otherwise unreasonable course of medical care was taken in ‘reckless disregard' of an excessive risk to the plaintiff's health or safety.”) (citing Gordon, 888 F.3d at 1125; Wilson v. Does 1-10, No. 1:20-CV-00413-DCN, 2021 WL 329560, at *5 (D. Idaho Feb. 1, 2021) (“Stated another way, a plaintiff must plausibly allege that medical providers chose one treatment over the plaintiff's preferred treatment ‘even though they knew [the plaintiff's preferred treatment] to be medically necessary based on [the plaintiff's] records and prevailing medical standards.”) (citing Norsworthy v. Beard, 87 F.Supp.3d 1104, 1117 (N.D. Cal. 2015)).
For example, in Sandoval, two jail nurses argued they were entitled to summary judgment, pointing to cases holding that a difference of medical opinion does not amount to a constitutional violation. At issue was whether they should have summoned paramedics, rather than EMTs, when Sandoval, a pretrial detainee, was unresponsive and having a seizure. 985 F.3d at 670-71. The first nurse, who was the “team leader,” refused to call paramedics and insisted on calling EMTs, despite the fact that another nurse and a deputy, who was trained as an EMT, asked her to call paramedics several times. When EMTs arrived, they declined to transport Sandoval because he was unresponsive, and he died on the gurney after paramedics were eventually called. Id. at 664. The second nurse “later admitted that she should have called paramedics herself when [the team leader nurse] refused to do so, and that she had ‘learned [her] lesson.'” Id.
The team leader nurse argued that she “could not have anticipated” that EMTs would not transport Sandoval in his condition. But the Ninth Circuit cited “the extensive evidence that all reasonable nurses would know that only paramedics, not EMTs had the training necessary to allow them to transport patients in Sandoval's condition.” Id. at 670. This evidence included the testimony of the second nurse and the deputy who had asked for paramedics to be called, as well as the Sheriff's Department policy and procedure manual, which required a paramedic response when someone was having a severe seizure. The Ninth Circuit held that the two nurses were not entitled to summary judgment because “there is ample evidence from which a jury could conclude that promptly calling paramedics was the only medically acceptable option.” Id. at 671 (emphasis in original).
Here, plaintiff proffers Dr. Reddy's opinion that Rojo's failure to refer plaintiff to an outside provider for testing and treatment was medically unacceptable under the circumstances. Armstrong Decl., Ex. N at 1, ECF 93-14. But there is evidence that Dr. Reddy's opinion is not the only medically acceptable option. There is no dispute that plaintiff had been diagnosed with chondrocalcinosis/pseudogout for ten years, since 2009. Treatment records by plaintiff's primary care physician, Dr. Molyneux, whom he saw in 2018, the year preceding his incarceration, reflect a diagnosis of chondrocalcinosis and treatment with colchicine and prednisone. Id., Ex. H at 4-10, ECF 93-8. When plaintiff turned himself into the jail, he brought colchicine and prednisone with him, and described in detail how often he took these medications. Id., Ex. I at 90-91, 93-9. In the course of this litigation, plaintiff has admitted that colchicine and diet were among the means he used to address his medical condition before he entered the jail. Id., Ex. G at 1 (response to request for admission), ECF 93-7. While in jail, plaintiff repeatedly requested prednisone, explaining that his uric acid levels were high and he needed the medication to prevent the swelling from getting worse. Id., Ex. J at 2, 16, 17, 24, 25, 33, 39, ECF 93-10. Plaintiff explained how his “regular cycle” of prednisone, i.e. “3 a day for 5 days,” worked because most of his food intake occurred between 10 a.m. and 6 p.m., which was when his purine levels were high. Id. at 5-6. He also complained that his diet was too “high in purines.” Id., Ex. I at 81, ECF 93-9; see also id., Ex. J at 5, ECF 93-10 (complaining of high purine intake due to jail diet). Finally, plaintiff reported to Rojo that prednisone was effective and he was “getting better after the course of prednisone was started.” Id., Ex. I at 82-83, ECF 93-9.
Dr. Minahan opines that, under the circumstances, “a reasonable medical provider would not doubt [plaintiff's] presenting diagnosis of pseudogout,” which is “the rarer of the crystal arthropathies,” given “[h]e appeared to know his disease well, his prior medical records reflected his stated disease, and he claimed to have been under treatment for almost a decade.” Armstrong Decl., Ex. L at 2, ECF 93-12. In Dr. Minahan's opinion, “both types of gout (‘gout and pseudogout') are treated with NSAID (Naprosyn/Ibuprofen), colchicine and prednisone.” Id. at 3. While the more common gout can be treated with allopurinol to minimize uric acid levels, it is not effective in treating pseudogout, which was plaintiff's “presumed diagnosis.” Id. Dr. Minahan “believe[d] a reasonable healthcare provider would not question the working diagnosis after a patient's stated rare diagnosis (not requiring opiate pain medication), confirming with his outside medical records, the patient reiterating his diagnosis during his time in the jail, and his subsequent inflammatory attacks and improvements with medications.” Id. Dr. Minahan concluded that the care provided by Rojo was “clinically appropriate and timely,” and “another reasonably competent healthcare provider in the same situation would have treated [plaintiff] for pseudogout and administered the same medication regimen.” Id. at 5.
Thus, plaintiff has not shown that sending him to an outside provider was the only medically acceptable option or that Rojo's decision to continue plaintiff on the same course of treatment he had been receiving for a long-standing diagnosis constitutes a conscious disregard of an excessive risk to his health. “[A] plaintiff must show that the denial, delay, or otherwise unreasonable course of medical care was taken in ‘reckless disregard' of an excessive risk to the plaintiff's health or safety,” Fricano, 2018 WL 2770643 at *5, and plaintiff has failed to do that here.
Plaintiff contends that “[n]othing in the record demonstrates Rojo denied this referral due to difference of medical opinion; rather, she simply ignored it and never addressed it.” Resp. 26, ECF 98. Plaintiff also argues that Rojo's “‘obdurate refusal' to alter [his] course of treatment ‘despite his repeated reports' that his condition was getting worse constitutes deliberate indifference.” Id. (citing Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005)). But to say that Rojo ignored plaintiff's condition or refused to treat it is a mischaracterization the record.
The following discussion pertains to Rojo's treatment of plaintiff and does not reflect the totality of the care that the jail medical records indicate plaintiff received. For example, records indicate that plaintiff was prescribed prednisone at other times. See, e.g., Armstrong Decl., Ex. I at 84, ECF 93-9 (round of prednisone for “uric acid and swelling” was restarted on May 1, 2019, after nurse received verbal order from Travis Prescott, NP).
When plaintiff saw Rojo on February 11, 2019, he reported a “long history” of gout and complained of an exacerbation. Armstrong Decl., Ex. I at 1, ECF 93-9. Plaintiff indicated that he normally received prednisone for his exacerbations. Id. Rojo noted that plaintiff's “toes and feet present with swelling bilaterally, mild tophi formation appreciated to elbows,” and assessed him with “acute gout exacerbation.” Id. She prescribed a course of 40 mg of prednisone with a taper and “pm naproxen.” Id.
Rojo explained that, on February 11, 2019, plaintiff “mentioned . . . gout,” but he had been “diagnosed with chondrocalcinosis or pseudogout.” Meggett Decl., Ex. 3 at 6, ECF 99-3.
Rojo saw plaintiff on February 26, 2019, for leg cramps and left knee problems that he explained would be seen on an EPIC imaging report. Id. at 86. He indicated that his physician had prescribed potassium, iron, and magnesium for his leg cramps. Id. Rojo requested plaintiff's medical records, and prescribed Flexeril for “night cramps relief.” Id. She also started plaintiff on vitamins and ordered “blood work to evaluate for reported conditions.” Id. She advised plaintiff to “[r]each out to medical if any exacerbation presents.” Id.
Zerfas obtained a release of information from plaintiff for the EPIC imaging report, which is in the record. Armstrong Decl., Ex. I at 81, ECF 93-9.
On March 7, 2019, Rojo reviewed plaintiff's records from Columbia Medical Clinic, the clinic where plaintiff was seen by his primary care physician, Dr. Molyneaux. Id. at 86. Rojo indicated “no changes in POC noted” and “continue with meds started.” Id.
On March 18, 2019, Rojo noted that plaintiff was reporting a “long time history of chondrocalcinosis with a current exacerbation” and “fluid accumulation to both knees and back.” Id. at 85. This corresponds with a medical request form that plaintiff submitted on March 17, 2019, where he reported high uric acid levels in his lower back, right hip, left ankle, and elbows. Id., Ex. J at 33, ECF 93-10. Rojo noted that the nodules on plaintiff's elbows and fingers were larger than normal, Meggitt Decl., Ex. 3 at 16, ECF 99-3, and prescribed prednisone three times a day for five days and naproxen twice a day for seven days. Pl. Ex. 30 at 16, ECF 103-2.
This page, WC000168, was not submitted into the record, but the information from the chart notes is otherwise in the record. See Armstrong Decl., Ex. M at 8, ECF 93-13 (indicating bilateral knee swelling right more than left and nodules to elbows and fingers to bilateral hands).
On April 9, 2019, Rojo indicated that plaintiff was reporting an exacerbation of his chondrocalcinosis, and ordered a five-day course of prednisone. Armstrong Decl., Ex. I at 85, EF 93-9. On April 26, 2019, Rojo approved plaintiff's request for compression socks for swelling, a condition that is related to chondrocalcinosis. Meggitt Decl., Ex. 3 at 10-11, ECF 993.
Rojo saw plaintiff on May 6, 2019, for a “Chronic Care Condition visit” to “follow up on acute exacerbation of his chondrocalcinosis.” Armstrong Decl., Ex. I at 82, ECF 93-9. Rojo scheduled this chronic care visit on her own initiative, “without [plaintiff] asking,” because plaintiff had a “long time history” of chondrocalcinosis. Meggitt Decl., Ex. 3 at 12-13, ECF 993. Plaintiff reported to Rojo that he was “getting better after the course of prednisone was started.” Armstrong Decl., Ex. I at 82-83, ECF 93-9. Chart notes indicate that three additional doses of prednisone were ordered to be dispensed on the following date. Id. at 83.
On July 26, 2019, Rojo saw plaintiff for an “exacerbation of his chondrocalcinosis, this time affecting his left hand.” Id. at 79. Plaintiff reported that he was in pain and not getting relief from the prednisone he had started the day before. Id. Rojo assessed that plaintiff had an “acute exacerbation of chondrocalcinosis” and ordered a longer course of prednisone, as well as naproxen. Id. at 79-80.
In sum, this record does not support plaintiff's contention that Rojo “ignored” his condition. Rather, it shows that Rojo met with plaintiff several times, even scheduling a chronic care visit that he had not asked for, and responded to his complaints of exacerbation by prescribing the medication that he asked for and had resulted in him “getting better.”
Plaintiff also misconstrues Rojo's testimony that chonodrocalcinosis is generally not symptomatic to argue that she “ignored his worsening condition.” Resp. 7-8, ECF 98. At her deposition, Rojo testified that although chondrocalcinosis is not a very common disease, she had treated some patients with that condition. Meggitt Decl., Ex. 3 at 7, ECF 99-3. When plaintiff presented with chondrocalcinosis, Rojo consulted two medical resources to familiarize herself with the most recent research regarding the condition. Id. at 16. She also explained that she had previously researched gout “very often” because of the “high incidence of gout in all of the populations, not only in the jail, regular community.” Id. Rojo described that chondrocalcinosis and gout “manifest very similarly” and are “not symptomatic most of the time.” Id. at 7, 15. Sometimes patients will go a year or years without exacerbations, Id. at 15, and symptoms usually arise in the elderly. Id. at 7.
These statements by Rojo are merely her observations regarding how chondrocalcinosis generally presents “most of the time,” Meggitt Decl., Ex. 3 at 7, ECF 99-3, and do not indicate that Rojo ignored plaintiff's condition. In fact, as discussed extensively above, Rojo responded to plaintiff's requests for medical attention, saw him several times (including for a chronic care visit that he did not ask for it), documented swelling in his joints, diagnosed him with exacerbation, prescribed medications, and treated him consistently with the care plan he had been following before becoming incarcerated.
Finally, plaintiff contends that Rojo was “deliberately indifferent” by failing to ensure there was an adequate stock of colchicine in the jail, and wrote prescriptions for other inmates “without regard to the stock of medication in the jail, allowing the supply that Mr. Santos took every day to dwindle and run out.” Resp. 27, ECF 98. There is no evidence that Rojo was responsible for stocking or maintaining pharmacy medications. Rojo testified that she “didn't have any involvement in ordering or checking stock or anything like that.” Meggitt Decl., Ex. 3 at 17, ECF 99-3. Rojo explained, “That is not my area. I have nothing to do with stock.” Armstrong Decl., Ex. Q at 2, ECF 109-3. She further testified, “My prescription has nothing to do with the supply. . . It goes to the pharmacy. The pharmacies have to order and give them to the patient.” Id. As for who was in charge of stock, she testified it was “[p]robably the charge nurse on the FSA, the HSA, health services administrator, probably those two, one of those.” Meggitt Decl., Ex. 3 at 17, ECF 99-3. Because there is no evidence that Rojo was in charge of or had control over medications stocked in the pharmacy, this aspect of plaintiff's claim against her also fails.
E. Julie Radostitz, MD
Julie Radostitz is a medical doctor who has worked for 22 years as a physician at Lewis and Clark College Health Center. Meggitt Decl., Ex. 4 at 3, ECF 99-4. She was previously employed part-time as a NaphCare employee at the Washington County Jail between spring of 2014 until spring of 2020. Id. at 3-4. Her title was medical director, which was the “job title that's given to any physician that works at the jail.” Id. at 6. She initially worked eight hours over two days per week, and then increased her hours to 15 hours over two days per week. Id. at 4. Dr. Radostitz described her job duties to include (1) drug reconciliation, i.e., obtaining a medication list from incoming inmates, verifying those medications with the pharmacy, and starting medications, (2) reviewing intake forms, (3) monitoring drug and alcohol detox protocols, including monitoring all patients on detox on a regular basis, (4) reviewing inmates' charts regarding medical request forms submitted by nursing staff and medication refills, and (5) patient care. Id. at 6-7, 8. She did not supervise staff. Id. at 7.
Plaintiff makes claims against Dr. Radostitz in both an individual and supervisory capacity. First Am. Compl. ¶¶ 41, 52, ECF 33. “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). “There is no respondeat superior liability under section 1983.” Id. Supervisory liability may be found only “if there exists either (1) [the supervisor's] personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011).
Plaintiff acknowledges that Dr. Radostitz cannot be liable under a vicarious liability theory, but argues that she “can be found liable based on her own actions.” Resp. 27, ECF 98. Plaintiff makes several arguments, including that Dr. Radostitz “downplayed” his condition, “should have recognized that his current treatment was not working,” did not seek an outside referral, and never saw him, although she “considered all the inmates in the jail to be her patients.” Resp. 7, 10, 27, ECF 98.
Dr. Radostitz testified that the jail followed “the highest standard” of medical care and that the standards were “very high . . . because it's a population that is traditionally underserved outside the jail.” Meggitt Decl., Ex. 4 at 20, ECF 99-4. Dr. Radostitz described chondrocalcinosis as “a condition in which calcium pyrophosphate crystals accumulate around the joints of the body and the soft tissues around the joints of the body.” Id. at 4. She explained that it presents with “pain, swelling, [and] redness like an arthritis condition.” Id. Dr. Radostitz was unaware of any treatments that can reverse the effects of chondrocalcinosis, and explained that colchicine is prescribed because it has an “anti-inflammatory effect” that “can be helpful in preventing the acute inflammatory flares that people can get.” Id. at 16. Dr. Radostitz also testified that “intermittent prednisone can be used.” Meggitt Decl., Ex. 4 at 17, ECF 99-4; Pl.'s Ex. 30, ECF 103-2. Like Dr. Minahan, Dr. Radostitz testified that allopurinol “would never be [used] to treat chondrocalcinosis because it “lowers uric acid” and “you don't have an elevation of urate in chondrocalcinosis.” Meggitt Decl., Ex. 4 at 17, ECF 99-4.
Although Dr. Radostitz did not personally see plaintiff, the record shows that she entered orders for plaintiff's medications, including colchicine, prednisone, and naproxen, 19 times. Pl. Ex. 30 at 15, ECF 103-2. Dr. Minahan has evaluated Dr. Radostitz's actions in this case, and concludes that “a reasonable healthcare provider would not question the working diagnosis after a patient's stated rare diagnosis (not requiring opiate pain medication), confirming with his outside medical records, the patient reiterating his diagnosis during his time in the jail, and his subsequent inflammatory attacks and improvements with medications.” Armstrong Decl., Ex. L at 3, ECF 93-12. In Dr. Minahan's opinion, Dr. Radostitz's care was “clinically appropriate and timely.” Id. at 5. Plaintiff's expert proffers a different opinion, but again, “[i]n cases involving ‘choices between alternative courses of treatment,' [a] plaintiff ‘must show that the course of treatment the doctors chose was medically unacceptable under the circumstances' and that ‘they chose this course in conscious disregard of an excessive risk to plaintiff's health.'” Gordon, 6 F.4th at 970. There is no evidence that Dr. Radostitz acted with reckless disregard of “a risk of harm of which [she was] aware.” Rodriguez, 880 F.3d at 1161. Moreover, even if Dr. Radostitz's actions could be characterized as negligent, that is insufficient to establish a § 1983 claim. Fraihat, 16 F.4th at 636 (“Neither mere lack of due care, nor an inadvertent failure to provide adequate medical care, nor even medical malpractice, without more, is sufficient to meet this standard.”).
Plaintiff asserts that Dr. Radostitz believed his condition was not serious because she testified that “joint pain” is “very common” and “his condition was typically symptomless.” Resp. 25, 27, ECF 98; see Meggitt Decl., Ex. 4 at 15, ECF 99-4. Dr. Radostitz, in fact, testified that the effects of chondrocalcinosis are “variable,” i.e., for some people it “can be chronic” with “acute flares” and for others it “can be asymptomatic.” Meggitt Decl., Ex. 4 at 13, EC 99-4; see id. (“Some people have accumulation of crystals and never have any symptoms so they don't even know it.”). Dr. Radostitz never testified that plaintiff's condition was “symptomless,” and ordered medications to alleviate his symptoms on numerous occasions.
Citing to a NaphCare policy regarding “Pharmaceutical Operations,” plaintiff argues that Dr. Radostitz is liable for her “inaction as a supervisor.” Resp. 28, ECF 98. The policy states, in pertinent part: “Medications maintained at the facility and properly trained persons administering medications are under the direct supervision of the Medical Director and the Health Services Administrator.” Pl. Ex. 15 at 30, ECF 103. Plaintiff argues that “no medical staff faced corrective action related to medication administration issues, even though [he] routinely missed doses of colchicine” and nurses “failed to document reasons why he did not receive his medication.” Resp. 28, ECF 98. Plaintiff claims that Dr. Radostitz's “total disregard for her role in monitoring medication issues demonstrates an indifference to the inmates.” Id.
However, Dr. Radostitz's job description “is no basis for finding personal involvement under § 1983.” Malone v. Sziebert, No. 19-36038, 2022 WL 17883792, at *2 (9th Cir. Dec. 23, 2022) (finding that the position description for the medical director of a commitment center, which showed that he had “supervisory responsibility for the overall activities of the [commitment center's] medical department” was “no basis for finding personal involvement under § 1983”) (cited pursuant to Ninth Cir. Rule 36-3). Dr. Radostitz testified that, as a medical director, she did not supervise staff and did not have the ability to discipline staff. Meggitt Decl., Ex. 4 at 7, 31, ECF 99-4. Moreover, there is no evidence that Dr. Radostitz was aware of whether or not plaintiff received the colchicine and other medications that she had ordered. See Id. at 27 (“Again, . . . it's not my job to do medication administration[.]”); Id. at 28 (“Q: [D]o you believe there . . . was a quantity of colchicine in stock at the jail at these times? A: I have no idea.”).
Plaintiff contends that Dr. Radostitz “was aware of his filed grievances and the contents of his medical record.” Resp. 27, ECF 98. But plaintiff did not ask for colchicine in any of the 38 medical request forms or inmate request forms that he submitted during the six and a half months he was in custody. Armstrong Decl., Ex. J, ECF 93-10. Further, the evidence is undisputed that Dr. Radostitz was unaware of the quantity of colchicine in the jail or who tracked the amount of medication that was available. Armstrong Decl., Ex. F at 2, ECF 93-6; Meggitt Decl., Ex. 4 at 28, ECF 99-4. Therefore, Dr. Radostitz is entitled to summary judgment on the § 1983 claim asserted against her.
When asked about this at his deposition, plaintiff testified that “[t]he infection was already bad” and “[t]he swelling was already so bad,” that “the colchicine really wasn't going to do anything” and “there was no real point to ask” for it. Armstrong Decl., Ex. A at 26 (Santos Dep.), ECF 93-1. Whether that is true or not, there is no indication that Dr. Radostitz knew about plaintiff's complaint that he was not receiving colchicine.
Dr. Radostitz testified that a “med tech” would “let us know if they run out of medication,” but “[t]hat doesn't' happen very often.” Meggitt Decl., Ex. 4 at 24, ECF 99-4.
III. 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). First Am. Compl. ¶¶ 46-49, ECF 33. Under Monell, a municipality 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). “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).
In response to the motion for summary judgment, plaintiff argues that NaphCare's “instituted an autoship medication delivery system whereby jail medical staff could not know the jail's quantities of medications, allowing stock to run out,” and that this autoship process was “put into place to save the company and the County money, to the detriment of the inmate dependent on their care.” Resp. 29-30, ECF 98. When deposed, NaphCare's Rule 30(b) representative, Jesus Ordaz, testified that, generally, the medication in the jail is “stock medication,” i.e., it is “not patient specific,” although there is some patient-specific mediation. Meggitt Decl., Ex. 6 at 20-21, ECF 99-6. Ordaz explained that “a lot of the medications” are autoshipped, “meaning that the pharmacy in Birmingham will “see how many administrations were given” and then medications are sent to replenish the stock that was used. Id. at 17. He could not testify as to exactly how the Birmingham pharmacy “determines what you need to receive” or what “algorithm,” if any, was used. Id. at 33. However, Ordaz explained that the administered doses are tracked through TechCare. Id. at 11. Also, if the individuals who were administering the medications saw that certain medications were running low, they would order more, and it generally took 24 hours for medications to arrive by FedEx or another carrier. Id. at 12, 35. Additionally, if a medication had to be administered right away, medical staff could reach out to a local pharmacy and “just pick it up.” Id. at 56.
There is no evidence that NaphCare implemented its autoship process to save money, as plaintiff contends, or that they did so in disregard to a known or obvious consequence of their actions. Bryan Cnty., 520 U.S. at 410. As Ordaz explained, medical staff did not rely solely on the autoshipments, but could made orders to replenish low inventory and obtain medications locally if necessary.
Plaintiff also claims that NaphCare had a “custom of failing to retain documentation related to medication orders that would allow for inspection of their jail pharmacy's medication stock.” Resp. 30, ECF 98. Plaintiff contends that “the County and NaphCare had a custom or practice of false or incomplete documentation that would [have] allowed staff to forego providing inmates their medications without a way to prove their medical needs were ignored.” Id. at 30-31. Plaintiff argues that a jury may draw an adverse inference from the spoliation of this evidence. Id. at 31.
Faced with a similar claim regarding the purging of use of force records, the district court in Gonzalez v. City of Phoenix observed that the “[p]laintiff's argument is problematic because it is both speculative and fails to provide the necessary link between the . . . alleged policy and the constitutional violation that occurred in this case.” No. CV2101340PHXMTLDMF, 2024 WL 1195512, at *19 (D. Ariz. Mar. 20, 2024). The court held that the plaintiff “relies on speculative theories that purging records . . . may have emboldened Defendants to use unnecessary force in this case,” but failed to “support this claim with evidence.” Id. Plaintiff's claim here is similarly speculative and unsupported by any evidence. Also, NaphCare asserts colorable arguments why a spoliation analysis does not apply when it was never given notice that the documents were potentially relevant and should have been preserved. Reply 14, ECF 108. “A party does not engage in spoliation when, without notice of the evidence's potential relevance, it destroys the evidence according to its policy or in the normal course of its business.” United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 758 (9th Cir. 2009).
Plaintiff contends that NaphCare's decision not to send him to an outside specialist is consistent with its “documented history of engaging in this cost-saving policy or practice, such as where NaphCare in Ohio had a policy not to send inmates to a hospital except for ‘life threatening' situations,” and “coincident with their 2015 promise to the County that they would save money by reducing outside medical trips.” Resp. 30, ECF 98 (citing Day v. Delong, 358 F.Supp.3d 687, 694 (S.D. Ohio 2019)). The case to which plaintiff cites, Day v. Delong, was decided in 2019 in a different district and thus is of limited, if any, probative value. Moreover, a case cite does not constitute evidence. Regarding NaphCare's “2015 promise” to the County, plaintiff does not cite to the record but presumably refers to NaphCare's 2015 RFP in which it stated it “has a proven history of reducing off-site costs through our proactive Chronic Care system within TechCare.” Meggitt Decl., Ex. 11 at 9, ECF 99-11. In its RFP, NaphCare described that “[w]ith TechCare, the level and quality of the care within the Washington County facilities will be improved by scheduling inmates with chronic disease to be seen by a provider before they become acutely ill or require off-site transport or hospitalization.” Id. (emphasis in original). NaphCare elsewhere explained that its “Proactive Care Model emphasizes the early identification or medical and mental health issues in order to intervene early and prevent costly emergency situations and off-site trips,” and cited to fewer hospital admissions. Id. at 7.
NaphCare also represented that its “system adds value to [its] overall healthcare program by improving the quality of patient care at the jail site, decreasing the need to send the inmate patient off-site for care.” Id. at 17. These statements relating to the pro-active care of inmates who have chronic conditions does not support plaintiff's argument that NaphCare deliberately failed to send plaintiff to an outside provider in order to cut costs. In fact, plaintiff himself received a chronic care visit. Meggitt Decl., Ex. 3 at 12, ECF 99-3.
Plaintiff also argues that “[i]n the broader sense, NaphCare had a custom of staff engaging in faulty or incomplete documentation that resulted in constitutional violations,” which “would fit a broader pattern of NaphCare staff falsifying medical documentation, such as when NaphCare providers in Indiana charged the government for services they did not provide; and an overlapping pattern of bad documentation.” Resp. 30, ECF 98. The press release to which plaintiff cites pertains to incidents that occurred at Federal Bureau of Prisons facilities in Terre Haute, Indiana, and Victorville, California, between January 2014 and June 2020. In those incidents, NaphCare charged the government for higher level services “when certain physicians did not indicate the type of service performed on onsite visit sheets.” In addition to being far-removed in time and place, these incidents are distinguishable from plaintiff's allegations in this case that NaphCare employees “engaged in faulty or incomplete documentation” regarding the administration of his colchicine prescription; there are no allegations here that NaphCare doctors overcharged the County when plaintiff did not receive his medications.
See https://www.justice.gov/opa/pr/prison-health-care-provider-naphcare-agrees-settle-false-claims-act-allegations.
Finally, plaintiff proffers a 2016 report by the Virginia Inspector General regarding an investigation into the death of an inmate at the Hampton Roads Regional Jail. Pl. Ex. 29, ECF 104-1. The individual had lost a significant amount of weight in the four months he spent in jail, and it was suspected this was related to his refusal to eat. Id. at 5. This incident is also too far removed in time and place to establish a policy, practice, or custom related to the administration of plaintiff's medications in this case.
For all of these reasons, plaintiff's Monell claim fails.
IV. Third Claim-Fourteenth Amendment Claim Against NaphCare and Dr. Radostitz (Supervisory Capacity)
Plaintiff makes a section 1983 claim for violation of his Fourteenth Amendment rights against NaphCare and Dr. Radostitz in their supervisory capacities. Am. Compl. 15, ECF 33. Plaintiff's claim against Dr. Radostitz fails for the reasons discussed above. In response to the motion for summary judgment, plaintiff makes no argument regarding NaphCare's liability in a supervisory capacity. Therefore, both NaphCare and Dr. Radostitz are entitled to summary judgment on this claim.
V. Fourth Claim-Negligence Against NaphCare and Washington County
Finally, plaintiff makes a claim of state law negligence against NaphCare and Washington County. First Am. Compl. 16-17, ECF 33. “In a professional negligence claim, a plaintiff must allege and prove the following: ‘(1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a causal link between the breach of duty and the harm.'” Smith v. Providence Health & Servs.-Oregon, 361 Or. 456, 460 (2017) (quoting Zehr v. Haugen, 318 Or. 647, 653-54 (1994)). “Ultimately, the plaintiff must prove causation by a ‘reasonable probability.'” Id. (quoting Sims v. Dixon, 224 Or. 45, 48 (1960)).
Plaintiff claims defendants were negligent in the following ways:
a. In failing to provide [plaintiff] with a regular and continuous supply of colchicine, thereby causing him to miss doses and seriously and irreversibly aggravating his chondrocalcinosis;
b. In failing to provide [plaintiff] with prednisone in a sufficient manner and dosage to reduce his pain and suffering and otherwise alleviate his condition when he experienced flareups of his condition;
c. In failing to seek or obtain a prescription for allopurinol at any time while [plaintiff] was held in Washington County jail;
d. In failing to provide prompt medical attention to [plaintiff's] serious medical needs;
e. In failing to provide [plaintiff] with a diet that would have prevented the serious and irreversible aggravation of his medical condition;
f. In failing to follow the standards published by the National Commission on Correctional Healthcare;
g. In seriously and irreversibly aggravating his medical condition by failing to allow or request an outside doctor to come and treat [plaintiff];
h. In seriously and irreversibly aggravating his medical condition by failing to provide adequate staffing levels needed for minimally adequate care.
First Am. Compl. ¶ 56, ECF 33.
Two of these claims can be dismissed at the outset. There is no evidence that “failing to provide [plaintiff] with a diet would have prevented the serious and irreversible aggravation of his medical condition.” In fact, plaintiff's expert, Dr. Reddy, says that “[t]reatment for gout does NOT include dietary changes as diet is estimated to be a very minor contributor to the population variance of baseline levels of serum urate.” Meggitt Decl., Ex. 22, ECF 99-21 (emphasis in original). Additionally, there is no evidence that “failing to provide adequate staffing levels” is an issue in this case.
With respect to his claim that he did not receive a regular and continuous supply of colchicine, plaintiff testified that he did not receive any “medication for the first easily 10 days.” Meggitt Decl., Ex. 2 at 35, ECF 99-2. He also attests that “there were many times throughout my stay in the jail that I did not receive doses of colchicine, often several doses in a row.” Santos Decl. ¶ 5, ECF 100. He claims that “[e]very time that I wrote a Medical Request Form asking jail medical staff to give me prednisone to treat the flare up, I had recently missed doses of colchicine during med pass.” Id. Although defendants dispute plaintiff's claims regarding the extent to which he received colchicine, this court does not weigh the evidence or assess credibility on summary judgment. Moreover, the record reflects that plaintiff was not given colchicine on June 14, June 15, August 2, August 3, and August 4, 2019, due to “pending pharmacy delivery,” and there was some kind of cancellation error that occurred on February 14, February 16, and May 10, 2019. Armstrong Decl., Ex. I, ECF 93-9. Plaintiff's expert, Dr. Reddy, opines that plaintiff was “supposed to be on colchicine twice a day” but he “was not consistently on colchicine,” and his “report of missing doses of colchicine is consistent with the frequency of flares that he experienced.” Armstrong Decl., Ex. N, ECF 93-14. Dr. Reddy also opines that “chronic/recurrent gout flares cause gouty arthritis, which is permanent damage to the joints” and that “[p]reventing flares and treating them quickly is paramount to preventing this potential damage.” Id. In her expert opinion, Dr. Reddy believes that plaintiff has “sustained permanent joint damage from lack of appropriate treatment for his gout.” Id. This is sufficient to defeat summary judgment.
According to defendants, the records reflect that plaintiff “received at least 375 doses of colchicine, administered by at least 20 different NaphCare Non-Defendant nurses.” Reply 12, ECF 108.
Dr. Reddy does not specifically address defendants' alleged failure to provide plaintiff with the proper doses of prednisone. However, plaintiff claims he was denied prednisone for his flare-ups, and Dr. Reddy opines that “[p]reventing flares and treating them quickly is paramount to preventing . . . potential damage.” Armstrong Decl., Ex. N, ECF 93-14.
Records show plaintiff was administered prednisone almost 140 times and naproxen more than 150 times during his 193 days in custody. Armstrong Decl., Ex. I, ECF 93-9.
Regarding treatment by an outside provider, as discussed above, Dr. Reddy opines that plaintiff's uric acid levels should have been tested and he should have been given uric acid lowering therapy. Armstrong Decl., Ex. N, ECF 93-14. While Dr. Reddy does not mention allopurinol specifically, Dr. Minahan observes that gout “can . . . be treated with minimizing uric acid levels with allopurinol.” Id., Ex. L at 3, ECF 93-12. NaphCare contends that Dr. Reddy is not “qualified to opine as to the standard of care for providers working in correctional settings.” Mot. Summ. J. 27, ECF 92. But this argument goes to the weight of Dr. Reddy's opinion, not its admissibility.
Because there are genuine issues of material fact regarding whether NaphCare and Washington County were negligent in treating plaintiff's medical condition, including providing him with proper doses of medication and failing to send him to a rheumatologist for further diagnosis and treatment, summary judgment on this claim is inappropriate.
This court previously ruled that plaintiff's flare-ups, and 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 v. Bostick, 282 Or. 667, 673 (1978). 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.” First Am. Compl. ¶ 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.
VI. Evidentiary Objections
In their reply, defendants object to plaintiff's new declaration and exhibits 16 and 29. Reply 2-8, ECF 108. The court allowed plaintiff to file a sur-reply to respond to these objections. Sur-Reply, ECF 113. Each objection is addressed in turn below:
Plaintiff's Declaration (ECF 100): Plaintiff's declaration contains statements that were made to him by another inmate, Fidencio Diaz-Eguiza, who looked at plaintiff's hands and said, “I have it too.” Pl. Decl. ¶ 8, ECF 100. One day in early June or July, Diaz-Eguiza also complained to plaintiff that he had not received his colchicine, on the same date that plaintiff failed to receive his dose. Id. ¶ 11. Diaz-Eguiza complained to plaintiff about not receiving other doses of colchicine and that “taking it once a week won't help.” Id. ¶ 12.
Defendants object to these portions of plaintiff's declaration on hearsay grounds. Reply 2-3, ECF 108. While Diaz-Eguiza's statements may constitute hearsay, they are merely redundant of plaintiff's complaints that he did not receive colchicine. Whether the statements are admitted or not, it does not change the analysis that genuine issues of material fact preclude summary judgment as to plaintiff's negligence claim that he did not “consistently” receive colchicine resulting in “permanent joint damage.” See Armstrong Decl., Ex. N, ECF 93-14.
Defendants also object to hearsay statements that plaintiff claims Dr. Molyneux made regarding his referral and need for allopurinol. But the referral form is in the record, and plaintiff has otherwise admitted that Dr. Molyneux never actually prescribed allopurinol. Armstrong Decl., Ex. A at 9, ECF 93-1; Meggitt Decl., Ex. 27, ECF 103-1. Finally, defendants object to plaintiff's statement that that “[e]ach time I saw [Rojo], I told her that I had a referral to see a rheumatologist and was expecting to be prescribed allopurinol after that referral.” Pl. Decl. ¶6, ECF 100. This statement, even if admitted into evidence, does not affect the analysis. The record shows that Rojo herself ordered and reviewed plaintiff's Columbia Medical Clinic records, which reference a rheumatology referral. Armstrong Decl., Ex. I at 86, ECF 93-9; see Pl. Ex. 27 at 3, ECF 103-1; Pl. Ex. 30 at 13 (fax cover sheet), ECF 103-2.
Board of Nursing Orders (Exhibit 16): Plaintiff offers records of recent nursing board suspensions of nurses who are not defendants in this case to show examples of discipline for improper documentation. In particular, the board reprimanded a nurse for documenting that she provided medications to inmates when no medications had been administered. Plaintiff offers this evidence to refute defendants' argument that NaphCare nurses did not fabricate records. These records are arguably irrelevant. Nevertheless, they do not impact the analysis. Plaintiff's testimony that he did not receive medications while in custody, even if contradicted by medical records stating that he did, is sufficient to create a genuine issue of material fact regarding his negligence claim.
Virginia Inspector General's Report (Exhibit 29): As discussed above, this report is too far removed in time and place, and pertains to a completely different set of facts, that it is not relevant to this case.
RECOMMENDATIONS
Defendants' Motion for Summary Judgment (ECF 92) should be GRANTED IN PART and DENIED IN PART, in that the motion should be DENIED as to plaintiff's state law negligence claim against NaphCare, Inc. and Washington County and otherwise GRANTED as to all other claims.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, July 23, 2024. 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.