United States District Court, D. Nevada
ROBERT J. GARDNER, et al., Plaintiffs,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.
ORDER (MOTS. SUMM. J. - ECF NOS. 47, 48)
PEGGY
A. LEEN, UNITED STATES MAGISTRATE JUDGE.
Plaintiffs
Robert J. Gardner, Kim Gardner, and the Estate of Garrett E.
Gardner (collectively, “Plaintiffs”[1]) bring this
lawsuit under 42 U.S.C. § 1983 alleging violations of
their son Garrett's constitutional right to adequate
medical care as a pretrial detainee at the Clark County
Detention Center (“CCDC”). This case was referred
for a determination and entry of final judgment pursuant to
28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of
Civil Procedure. Reference Order (ECF No. 13).
Before
the court are Motions for Summary Judgment (ECF Nos. 47, 48)
filed by Defendants NaphCare and the Las Vegas Metropolitan
Police Department (“LVMPD”). The court held a
hearing on these Motions on February 27, 2019. Lyssa
Anderson, counsel for LVMPD, John Orr, counsel for NaphCare,
and Lauren Calvert, counsel for Plaintiffs appeared. The
court has considered the Motions, LVMPD's Notice of
Manual Filing (ECF No. 49) and Supplement (ECF No. 50),
Plaintiffs' Responses (ECF Nos. 51, 52), NaphCare and
LVMPD's Replies (ECF Nos. 55, 56) and Joinders (ECF Nos.
57, 58), and the arguments of counsel at the hearing. For the
reasons explained in this order, the court grants both
defendants' motions for summary judgment.
The
threshold inquiry in a § 1983 suit requires the court to
identify the specific constitutional right at issue.
Manuel v. City of Joliet, --- U.S. ---, 137 S.Ct.
911, 920 (2017). Plaintiffs have asserted § 1983 claims
for deprivation of their son's right to receive adequate
medical care while in custody. Specifically, Plaintiffs
allege that the defendants were aware that Garrett was
suffering from metastatic melanoma and polymicrobial sepsis,
which ultimately caused Garrett's death, but chose not to
provide medical care.
After
identifying the constitutional right at issue, the court must
determine “the elements of, and rules associated with,
an action seeking damages for its violation.”
Id. To pr evail, Plai ntiffs must show the
defendants were deliberately indifferent to Garrett's
serious medical needs. Deliberate indifference requires
“something more than mere negligence, ” and
“something less than acts or omissions for the very
purpose of causing harm with the knowledge that harm will
result.” Farmer v. Brennan, 511 U.S. 825, 841
(1994). A plaintiff making a deliberate indifference claim
against a municipality must show “deliberate
action attributable to the municipality directly caused a
deprivation of federal rights.” Horton by Horton v.
City of Santa Maria, 915 F.3d. 592, 603 (9th Cir. 2019)
(quoting Board of Comm'rs of Byron County v.
Brown, 592 U.S. 397, 415 (1997)). Deliberate
indifference is a “stringent standard of fault.”
Connick v. Thompson, 563 U.S. 51, 61 (2011). Under
long-established Supreme Court precedent, “liability
for negligent harm is categorically beneath the threshold of
constitutional due process.” County of Sacramento
v. Lewis, 523 U.S. 833, 849 (1998).
The
court finds that Plaintiffs have not shown the defendants
were deliberately indifferent to Garrett's serious
medical needs. The uncontroverted evidence is that
Garrett's death was caused by metastatic malignant
melanoma, which was not diagnosed until doctors at University
Medical Center (“UMC”) performed an operation and
a biopsy while treating Garrett's bacterial infection.
The admissible medical opinion testimony in the record is
that the metastatic malignant melanoma caused the
polymicrobial sepsis.
There
is no admissible evidence in the record that any employee or
official of LVMPD or NaphCare was aware that Garrett had a
serious physical illness until January 21, 2015, when Garrett
was discovered by a corrections officer lying on a mattress
on the floor while the corrections officer was delivering
Garrett's dinner tray. It is undisputed that Officer
O'Barr asked Garrett if he was okay. Although Garrett
responded that he was okay, O'Barr noticed that the room
smelled of urine and feces and Garrett's arm appeared
swollen. O'Barr immediately requested a medical
assessment. A nurse responded, evaluated Garrett, requested a
crash cart, and summoned an ambulance to transport Garrett to
UMC's emergency room (“ER”). Naphcare
records, which the parties stipulated are admissible,
establish that numerous medical providers treated Garrett
more than 60 times during the seven months he was
incarcerated at CCDC. There is simply no admissible evidence
in the record that there were any external signs or symptoms
that Garrett was suffering from a serious physical illness
until he was discovered on the floor the evening of January
21, 2015, and immediately transported to UMC. Plaintiffs have
therefore failed to establish that either defendant was
deliberately indifferent to Garrett's serious medical
needs.
BACKGROUND
This is
a tragic case. Garrett was 29 years old when he was arrested
for open and gross lewdness and booked into CCDC on July 19,
2014. Garrett suffered from paranoid schizophrenia and was
homeless at the time of his arrest. NaphCare medical records
submitted with the parties' moving and responsive papers
establish that Garrett was medically assessed during booking
and treated for schizophrenia, but often refused his
medication. Twice during his incarceration at CCDC he
expressed suicidal ideation and was assigned to segregated
housing and placed on suicide watch. NaphCare and CCDC
records produced in discovery indicate that Garrett was seen
by numerous medical professionals including nurses,
psychiatrists, and medical doctors more than 60 times during
his incarceration at CCDC prior to his hospitalization on
January 21, 2015. Garrett died at UMC on January 31, 2015,
following a 10-day hospitalization.
I.
The Complaint
Plaintiffs
initially filed a complaint in state court on January 17,
2017, against LVMPD, the police department that runs CCDC,
and NaphCare, a private corporation who operated as the
healthcare provider at CCDC. Compl. (ECF No. 1-1) at 9,
¶¶ 6, 7. LVMPD removed the case to this court.
Petition for Removal (ECF No. 1). The complaint alleges three
claims under 42 U.S.C. § 1983 for: (1) inadequate
medical care/deliberate indifference to Garrett's serious
medical needs against NaphCare and the CCDC (LVMPD)
defendants; (2) Monell[2] municipal liability against LVMPD
for deliberate indifference to serious medical needs; and (3)
intentional infliction of emotional distress under Nevada law
against both defendants.[3] Plaintiffs allege that while Garrett
was incarcerated at CCDC he was “suffering from a
medical emergency with the potential for significant
morbidity and mortality.” Id. at 8-9,
¶¶ 3, 5. Plaintiffs further allege that defendants
had knowledge of “his polymicrobial sepsis and
metastatic melanoma, which ultimately caused the untimely
death” but “chose not to provide medical
care.” Id. at 9, ¶ 5.
II.
The Parties' Positions
A.
NaphCare's Motion for Summary Judgment (ECF No.
47)
NaphCare
moves for summary judgment arguing that Plaintiffs'
§ 1983 claim fails because there is no evidence showing
any NaphCare employee or official was subjectively aware of
Garrett's cancer, or that he was suffering from a serious
medical condition that needed attention before his
hospitalization on January 21, 2015. NaphCare's medical
records show that its employees were aware of Garrett's
mental health problems, which were addressed and treated
during his incarceration. NaphCare records also show Garrett
was assessed and never complained of anything that would lead
anyone to suspect he needed medical care. Naphcare's
motion also cites UMC hospital records to support its
argument that Garrett “only reached out for help just
before he was sent out to the hospital.” Mot. at
9:17-19.
Plaintiffs
oppose the motion arguing there are genuinely disputed facts
about whether NaphCare chose not to provide medical care to
Garrett. Resp. (ECF No. 51). Plaintiffs argue that medical
care claims brought by pretrial detainees against individual
defendants for inadequate medical care impose an objective
deliberate indifference standard, citing Gordon v. County
of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). This is
a case-specific inquiry turning on the facts and
circumstances of each case. Under Gordon, a
plaintiff must “prove more than negligence, but less
than subjective intent-something akin to reckless
disregard.” Id. Plaintiffs argue that although
they did not bring claims against any individual defendants,
Gordon makes clear that its newly-announced standard
still bears on this case-Plaintiffs may prevail on a §
1983 claim against municipal entities by showing that one or
more individuals violated their rights by exhibiting
“reckless disregard” for their wellbeing, and
that those violations are attributable to the defendants.
Plaintiffs
acknowledge that a threshold element of a claim for deficient
medical care requires a showing that the healthcare problem
complained of is a “serious medical need, ”
citing Estelle v. Gamble, 429 U.S. 97, 104-06
(1976). A medical condition that has been diagnosed by a
physician as requiring treatment is a serious medical need. A
serious medical need also exists for a medical problem that
is so obvious that a lay person would easily recognize the
necessity for a doctor's attention. Plaintiffs argue the
defendants' conduct in this case was objectively
unreasonable.
Plaintiffs
also argue that in evaluating the § 1983 claims of
individuals with mental illness or mental incapacity, courts
apply a heightened standard. Citing Youngberg v.
Romeo, 457 U.S. 307 (1982), and Oregon Advocacy
Center v. Mink, 322 F.3d 1101 (9th Cir. 2003),
Plaintiffs argue that because of Garrett's mental
incapacity, their claims should be evaluated under a lesser
gross negligence standard rather than a deliberate
indifference standard.
Plaintiffs
contend that the NaphCare contract to provide medical care to
CCDC detainees was designed to boost profits rather than
provide quality medical care and incentivized it to provide
as little medical care as possible. A reasonable fact finder
could conclude that a reduced level of medical care was
virtually inevitable as a result of the terms of the NaphCare
contract. Plaintiffs also claim NaphCare failed to train its
employees and CCDC corrections officers to identify detainees
with infectious diseases. Plaintiffs assert that NaphCare
failed to identify or treat Garrett's infection because
its policies and procedures are deficient and only seek to
protect NaphCare employees and jail staff-not detainees.
Plaintiffs point to evidence in the record indicating that
Garrett was not tested for tuberculosis or other highly
communicable diseases when he was taken into custody in July
2014 because he had been tested for tuberculosis during a
prior incarceration within a year of his July 2014 arrest and
detention at CCDC. Plaintiff s also point to testimony in the
record by LVMPD detention facility staff that they were not
trained regarding communicable or infectious diseases.
Plaintiffs
further argue that NaphCare's policies and procedures
requiring inmates to self-report their medical problems are
constitutionally deficient because Garrett's mental
illness and learning disability made communication nearly
impossible. The one time that Garrett managed to fill out a
medical request or “kite” complaining of a
dislocated back and his side was swelling and cramps and
shortness of breath, NaphCare's staff responded by
providing him with Motrin or Tylenol from the canteen.
Plaintiffs
point to Garrett's autopsy photos which show his
extremities had “ballooned to a painfully obvious
size” and argue it is “impossible to
imagine” how the medical conditions depicted in the
autopsy photos could be ignored. Additionally, Plaintiffs
maintain UMC medical records show that Garrett had been
complaining of weakness throughout the day of his
hospitalization, edema to his arm for the prior four weeks,
chest pain for four weeks, that he had decreased oral intake
over the prior six months, and that he had experienced
trouble walking for two weeks prior to his hospital
admission. Thus, the defendants must have been aware Garrett
was suffering from a serious medical condition that required
treatment before his hospitalization.
Alternatively,
Plaintiffs argue that even if NaphCare's policies meet
constitutional standards, the physical manifestations of
Garrett's infection would have been obvious if the
defendants had followed their own policies regarding inmate
hygiene. If either defendant had not allowed Garrett to
become extremely unkempt and disheveled, Plaintiffs argue,
the physical manifestations of his infection and cancer would
have been “painfully obvious.”
NaphCare
argues in its reply that Plaintiffs' reliance on the new
test announced in Gordon is misplaced as it only
applies to claims brought by pretrial detainees against
individual defendants. NaphCare contends that because
Plaintiffs have only sued NaphCare and none of its employees
or officers, and because NaphCare is not a municipal entity,
Gordon does not apply. NaphCare also argues that
Plaintiffs have not identified a single instance in which
Garrett was deprived of medical care, or a single instance of
any NaphCare employee who was recklessly indifferent towards
Garrett. Thus, Plaintiffs have failed to meet their burden of
showing that any individual working for NaphCare, or NaphCare
itself, was deliberately indifferent to Garrett's medical
needs. Here, Garrett “did not subjectively make his
medical needs known, nor did he display any objective signs
of needing medical attention.” Reply (ECF No. 56) at
4:22-23.
B.
LVMPD's Motion for Summary Judgment (ECF No. 48)
LVMPD
moves for summary judgment arguing that Plaintiffs'
§ 1983 claim fails because there is no evidence showing
that Garrett suffered a constitutional deprivation or that an
LVMPD policy caused any deprivation. LVMPD maintains
Plaintiffs cannot demonstrate that it was deliberately
indifferent to Garrett's serious medical needs. Citing
Wilson v. Seiter, 501 U.S. 294, 297 (1991), LVMPD
argues that the inadvertent failure to provide adequate
medical care, or a negligent diagnosis does not establish the
requisite culpable state of mind for a deliberate
indifference claim. Rather, the Supreme Court has required
plaintiffs making a deliberate indifference claim against a
municipal entity to show unnecessary and wanton infliction of
pain, or that the failure to provide medical care is
“repugnant to the conscience of mankind, ” citing
Estelle, 429 U.S. at 104-06. Plaintiffs cannot make
this showing because, while Garrett was at CCDC for
approximately seven months, he was seen by medical providers
at least 66 times before he exhibited outward signs and
symptoms of a serious illness and was immediately taken to
UMC.
LVMPD
also asserts that Plaintiffs have not shown any
unconstitutional policy, practice, or procedure, or that
policy makers at LVMPD directed, encouraged, allowed, and/or
ratified its officers' misconduct towards Garrett.
Rather, plaintiffs infer that because Garrett died in
custody, LVMPD as an organization refuses to treat detainees
for serious medical conditions and willfully blinds itself to
an inmate's past medical history. Plaintiffs have no
evidence that LVMPD had an unconstitutional policy or that
LVMPD ratified an officer's unconstitutional conduct.
LVMPD has numerous constitutionally adequate policies to
provide for the serious medical needs of CCDC inmates.
Plaintiffs have no evidence indicating that LVMPD does not
follow these policies, or that the policies are
constitutionally deficient. The evidence in this case shows
that Garrett's malignant melanoma was not discovered
until UMC doctors operated on him. Garrett had no external
signs of his cancer and never reported to CCDC or NaphCare
staff that he felt unwell. As soon as it became apparent that
Garrett was unwell, Officer O'Barr notified a nurse and
Garrett was transported to UMC. Thus, Plaintiffs cannot
prevail on a § 1983 claim for deliberate indifference to
Garrett's serious medical needs.
Plaintiffs
respond that there are genuinely disputed facts regarding
LVMPD's failure to train its officers to follow policy,
which amount to deliberate indifference to Garrett's
constitutional right to receive adequate medical care. Resp.
(ECF No. 52). Plaintiffs argue that Garrett contracted
sepsis/flesh-eating bacteria while incarcerated at CCDC. It
is undisputed Garrett did not take medication to treat his
paranoid schizophrenia while incarcerated. Plaintiffs do not
assert a § 1983 claim for failure to provide adequate
medical care for his mental illness. However, the defendants
cannot blame Garrett for not identifying, diagnosing, and
alerting them of his deadly cancer and sepsis.
Plaintiffs
claim it is undisputed that NaphCare relies on LVMPD
corrections officers to identify medical problems, illness,
and emergencies, but they are not given adequate medical
training. LVMPD corrections officers are not trained medical
personnel. If an officer believes a pretrial detainee may be
experiencing a medical episode and/or medical issue, LVMPD
policy requires the officer to request NaphCare's medical
personnel to determine how the situation should be handled.
LVMPD has therefore delegated final decision-making authority
for medical care and treatment to NaphCare. However,
LVMPD's constitutional duty to provide adequate medical
treatment to those in custody is nondelegable and LVMPD
cannot avoid liability because it contracted out prison
medical care.
Plaintiffs
argue that the NaphCare fixed-cost contract is structured in
a way to provide an incentive to minimize the cost of care to
maximize profits. Plaintiffs also claim LVMPD was aware of
prior allegations of deficient care provided by NaphCare at a
detention facility in northern Nevada and in another state.
LVMPD accepted the lowest bid presented by NaphCare, and thus
a reasonable fact finder could conclude that a deficient
level of medical care was the inevitable result of this
contract.
Plaintiffs
assert that LVMPD failed to adequately implement or follow a
protocol of handling communicable disease. LVMPD's
policies and procedures requiring inmates to self-report
medical problems is also constitutionally deficient. This is
especially true where, as here, Garrett “was thought to
lack capacity to assist an attorney in his own
defense.” Plaintiffs reiterate arguments made in
response to NaphCare's summary judgment motion that UMC
records establish Garrett had serious medical needs before
his hospitalization and if the defendants had followed their
own internal policies requiring inmate hygiene, the physical
manifestations of his infection and cancer would have been
painfully obvious.
LVMPD's
Reply (ECF No. 55) argues that Plaintiffs have failed to
identify any individual who violated Garrett's right to
adequate medical care. LVMPD also argues that Plaintiffs
cannot show Garrett suffered a constitutional violation
because all of the evidence in the case shows Garrett had
stage four malignant melanoma, he never complained of
symptoms associated with cancer, he had no external
manifestations of skin cancer, and no one observed Garrett in
serious pain before Officer O'Barr called for medical
attention on January 21, 2015. LVMPD also contends it is
undisputed from evidence in the record that Garrett did not
have necrotizing fasciitis, and that the polymicrobial sepsis
diagnosed at UMC was a direct result of his cancer.
DISCUSSION
I.
Applicable Legal Standards
A.
Summary Judgment
Rule 56
of the Federal Rules of Civil Procedure allows summary
judgment when the pleadings, discovery and disclosure
materials, and any affidavits on file show “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).[4] “The purpose of summary judgment is
to avoid unnecessary trials when there is no dispute as to
the facts before the court.” Northwest Motorcycle
Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468,
1471 (9th Cir. 1994). An issue is “genuine” if
there is a sufficient evidentiary basis on which a reasonable
fact-finder could find for the nonmoving party, and a dispute
is “material” if it could affect the outcome of
the suit under the governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). However,
summary judgment is not appropriate where reasonable minds
could differ on the material facts at issue. Id. In
evaluating a summary judgment motion, a court views all facts
and draws all inferences in the light most favorable to the
nonmoving party. Johnson v. Poway Unified Sch.
Dist., 658 F.3d 954, 960 (9th Cir. 2011). However, only
evidence that may be admissible at trial may be considered in
ruling on a summary judgment motion. Fed.R.Civ.P. 56(c).
The
moving party bears the burden of informing the court of the
basis for its motion, together with evidence showing the
absence of any genuine issue of material fact.
Celotex, 477 U.S. at 323. Where the moving party
does not have the ultimate burden of persuasion at trial, it
“has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary
judgment.” Nissan Fire & Marine Ins. Co. v.
Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). To
carry its initial burden, the moving party must either (i)
present admissible evidence “negating an essential
element of the nonmoving party's claim or defense,
” or (ii) “show that the nonmoving party does not
have enough evidence of an essential element to carry its
ultimate burden of persuasion at trial.” Id.
If the moving party fails to meet its ...