Gardner v. Las Vegas Metropolitan Police Department

          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 ...