(PC) King v. Weston ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY KING, Case No. 1:20-cv-00943-CDB (PC) 12 Plaintiff, ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT 14 NAPHCARE, INC. ET AL., ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 15 Defendants. (ECF Nos. 61, 62) 16 17 18 I. INTRODUCTION 19 Plaintiff Barry King (“King”) filed the operative complaint in this case on July 7, 2020, in 20 which he alleges that Defendants violated the Constitution and federal law in connection with 21 treating him for injuries he sustained following his involvement in a high-speed vehicle chase 22 with law enforcement on July 13, 2018. Following entry of stipulated orders to dismiss certain 23 parties and claims (see ECF Nos. 19, 40), what remains is (1) King’s second cause of action 24 alleging that Defendants Nurse Practitioner Robynn Weston (“NP Weston”), Dr. Naeem Siddiqi 25 (“Dr. Siddiqi”) and their employer/agent Naphcare, Inc. (“Naphcare”) were deliberately 26 indifferent to King’s serious medical needs under the Fourteenth Amendment and 42 U.S.C § 27 1983, and (2) King’s fourth cause of action asserting a claim against Naphcare for municipal and supervisory liability under Monell v. Dep’t of Soc. Srvcs. of City of New York, 436 U.S. 658 1 (1978). (ECF No. 1). 2 On April 22, 2022, the parties filed cross-motions for summary judgment on both claims. 3 (ECF Nos. 61, 62). The parties filed oppositions to the competing motions on June 13, 2022, 4 (ECF Nos. 64, 65) and replies on June 20, 2022. (ECF Nos. 69, 70). Upon review of the fully 5 briefed motions and the record in the case, and for the reasons set forth below, the Court grants 6 Defendants’ motion in part and denies King’s motion in full. 7 II. APPLICABLE LAW 8 Summary judgment is appropriate where there is “no genuine dispute as to any material 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 10 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 11 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 12 while a fact is material if it “might affect the outcome of the suit under the governing law.” 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 14 F.2d 1422, 1436 (9th Cir. 1987). 15 Each party’s position must be supported by: (1) citing to particular portions of materials in 16 the record, including but not limited to depositions, documents, declarations, or discovery; or 17 (2) showing that the materials cited do not establish the presence or absence of a genuine dispute 18 or that the opposing party cannot produce admissible evidence to support the fact. See Fed. R. 19 Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, 20 but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 21 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (on summary judgment, “the court has 22 discretion in appropriate circumstances to consider other materials, [but] it need not do so”). 23 Furthermore, “[a]t summary judgment, a party does not necessarily have to produce evidence in a 24 form that would be admissible at trial.” Nevada Dep’t of Corr v. Greene, 648 F.3d 1014, 1019 25 (9th Cir. 2011) (citations and internal quotations omitted). The focus is on the admissibility of 26 the evidence’s contents rather than its form. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 27 F.3d 840, 846 (9th Cir. 2004). 1 material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 2 Corp. v. Catrett, 477 U.S. at 317, 323 (1986)). To meet its burden, “the moving party must either 3 produce evidence negating an essential element of the nonmoving party’s claim or defense or 4 show that the nonmoving party does not have enough evidence of an essential element to carry its 5 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 6 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this initial burden, the burden 7 then shifts to the non-moving party “to designate specific facts demonstrating the existence of 8 genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 9 477 U.S. at 323). The non-moving party must “show more than the mere existence of a scintilla 10 of evidence.” Id. (citing Anderson, 477 U.S. at 252). However, the non-moving party is not 11 required to establish a material issue of fact conclusively in its favor; it is sufficient that “the 12 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 13 versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 14 F.2d 626, 630 (9th Cir. 1987). 15 The court must apply standards consistent with Rule 56 to determine whether the moving 16 party has demonstrated the absence of any genuine issue of material fact and that judgment is 17 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 18 “[A] court ruling on a motion for summary judgment may not engage in credibility 19 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 20 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 21 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 22 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 23 198 F.3d 1130, 1134 (9th Cir. 2000). 24 In addition, when the parties submit cross-motions for summary judgment, as they have 25 done here – each motion must be considered on its own merits. Fair Hous. Council of Riverside 26 Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The Ninth Circuit has held: 27 It is well-settled in this circuit and others that the filing of cross- 1 no uncontested issues of material fact, does not vitiate the court’s responsibility to determine whether disputed issues of material fact 2 are present. A summary judgment cannot be granted if a genuine issue as to any material fact exists. 3 4 (Id.) (quoting United States v. Fred A. Arnold, Inc., 573 F.3d 605, 606 (9th Cir. 1978)). The 5 Court has a responsibility to determine whether the record holds a genuine issue of material fact, 6 even in cases where both parties believe that there are no material fact issues. (Id.) Accordingly, 7 the Court will address each party’s grounds for summary judgment and decide whether the facts 8 conclusively establish liability or the lack thereof for each party. If the record supports a genuine 9 dispute of material fact, then summary judgment shall be denied. 10 III. STATEMENT OF FACTS 11 A. Undisputed Statement of Material Facts 12 The parties’ Joint Statement of Undisputed Facts (“JSUF”) sets forth the agreed-upon 13 facts for the purposes of the summary judgment motions. (ECF 62-3 or “JSUF”). 14 Defendants largely rely on the JSUF in support for their motion for summary judgment. 15 (see ECF No. 61-1, pp. 6-16).1 On July 13, 2017, King led law enforcement on a high-speed 16 chase into a residential neighborhood. As King was fleeing from the police, an officer rammed 17 his vehicle into the stolen vehicle that King was driving. Either the collision or law 18 enforcement’s subsequent conduct caused King to sustain acute comminuted left mandibular 19 parasymphyseal and ramus fractures (jaw fractures). (JSUF ⁋ 1). 20 After King was apprehended, he was taken to Adventist Health Medical Center. (Id. ⁋ 2). 21 King underwent a CT scan of his facial bones which showed acute jaw fractures. King’s treating 22 physician, Dr. Timothy Bullard (“Dr. Bullard”), an emergency medicine physician, consulted 23 with Dr. Don Setliff, an otolaryngologist, at the CRMC Oral Surgery Clinic. (Id.). The physician 24 at the CRMC Oral Surgery Clinic recommended King follow-up in the clinic as an outpatient. 25 King was discharged to police custody. (Id.) The discharge instruction indicated that King 26 needed an appointment at the oral surgery clinic within four to five days. 27 When King arrived at the Kings County Jail, he was screened by Alan Aguilar 1 (“Aguilar”), a registered nurse employed by Naphcare. (Id. ⁋ 3). Naphcare was contracted by 2 Kings County to provide, manage, arrange for, and facilitate all medical, dental, and behavioral 3 healthcare required by patients in the Kings County Jail. (Id. ⁋ 42). Aguilar described some of 4 the injuries King sustained and informed Stephanie Gaitan (“Gaitan”), an administrative assistant 5 employed by Naphcare, that King needed to be referred to the CRMC Oral Surgery Clinic within 6 three to five days. Aguilar’s physical assessment of King was reviewed by Naphcare’s nurse 7 practitioner, NP Weston, on July 16, 2018. (Id. ⁋ 3). 8 On July 14, 2018, King was seen by Defendant Dr. Naeem Siddiqi (“Dr. Siddiqi”), 9 Naphcare’s on-site Medical Director. (Id. ⁋ 4). Dr. Siddiqi is also an internal medicine physician 10 and obstetrician/gynecologist. (Id.). Dr. Siddiqi noted that King sustained an acute comminuted 11 left mandibular parasymphyseal and ramus fracture and assessed King had a left mandibular 12 fracture. He prescribed cephalexin, Tylenol #3, twice a day; ibuprofen 600 mg tablets, twice a 13 day; and clonidine 0.2 mg, once a day. Dr. Siddiqi planned for King to be seen at the CRMC 14 Oral Surgery Clinic. (Id.). 15 That same day, Dr. Siddiqi completed an offsite healthcare authorization. (Id. ⁋ 5). Dr. 16 Siddiqi ordered King to be seen by an oral surgeon at the CRMC Oral Surgery Clinic on an 17 urgent basis. NP Weston ordered King to consume a liquid diet. (Id.). 18 At the same time, Gaitan submitted a request to Naphcare corporate for an urgent referral 19 to an oral surgeon. (Id. ⁋ 6). The referral was approved on July 17, 2018. When Naphcare staff 20 contacted the CRMC Oral Surgery Clinic (not later than July 23, 2018), an appointment for oral 21 surgery consultation was set for August 27, 2018. (Id.) 22 According to Susan Thorn, CRMC Oral Surgery Clinic’s representative, King’s 23 circumstances were communicated to their physician team. The CRMC Oral Surgery Clinic 24 scheduled King’s appointment with his circumstances in mind. (Id. ⁋ 7). 25 On July 24, 2018, NP Weston’s order for a liquid diet expired, and she ordered a soft diet 26 instead. (Id. ⁋ 8). King submitted a request for medical care. He indicated that did not want to be 27 switched to a soft diet, as he was unable to chew anything. (Id.). NP Weston prescribed Tylenol 1 On July 27, 2018, nurse Yvonne De La Cruz, a licensed vocational nurse, noted that King 2 was able to speak, swallow, and eat meals without complications, although King now declares 3 that he was unable to eat his meals for several weeks after the liquid diet expired. (Id. ⁋ 9). 4 King submitted a request for medical care on August 4, 2018. The request read: “The 5 only one Tylenol [#3] I’m getting still leaves me with a headache, my jaw feels like its locked up. 6 But nothing you’ve been giving me has been able to deal with the exposed nerve.” (Id. ⁋ 10). 7 On August 5, 2018, Dr. Siddiqi saw King and noted he was able to talk and eat, although 8 King declares that he was unable to eat his meals for several weeks after the liquid diet expired. 9 The request for an offsite consultation had been processed and they were waiting for an 10 appointment. (Id. ⁋ 11). King’s Tylenol #3 prescription was discontinued, and he started to take 11 ibuprofen instead. 12 On August 27, 2018, King was taken to his scheduled appointment at the CRMC Oral 13 Surgery Clinic. (Id. ⁋ 13). The oral surgeon who saw him planned to perform surgery — an open 14 reduction and internal fixation (“ORIF”) of the bilateral mandible fractures with 15 maxillomandibular fixation via intraoral or extraoral approaches. The oral surgeon also planned 16 to extract tooth #21, as well as any other necessary teeth. (Id.) 17 On August 28, 2018, NP Weston submitted an offsite healthcare authorization form to 18 Naphcare, which contained a request for approval of surgery. The request was promptly 19 approved, and on August 29, 2018, Naphcare contacted the CRMC Oral Surgery Clinic to 20 schedule the procedure. King was scheduled to return for the procedure on November 8, 2018 21 (Id. ⁋ 18). 22 On August 29, 2018, NP Weston saw King. She noted that King had been seen for an 23 offsite appointment, and he needed to have an ORIF of the mandible due to the multiple fractures. 24 King complained of pain, headaches, and difficulty chewing. NP Weston noted that King was 25 able to open and close his mouth. (Id. ⁋ 17). NP Weston also observed some tenderness at the 26 angle of King’s left and right mandible. There was no obvious bruising or swelling. NP 27 Weston’s assessments were pain and a fractured mandible. She prescribed Tylenol #3, twice a 1 King submitted another medical request on October 1, 2018. (Id. ⁋ 19). King complained 2 of a “severe broken jaw,” and claimed that he needed surgery “yesterday!” King feared that if the 3 injury healed improperly, it would affect him for life. In addition, King noted “meds suck.” On 4 the same day King received a response to his medical request. The response stated that he is 5 already scheduled for surgery and that “[w]e do not dictate when the surgeon chooses to schedule 6 your surgery. We request the appointment [,] and they tell us when they want to do the surgery.” 7 (Id.). 8 On October 2, 2018, King once again presented to NP Weston with a complaint of jaw 9 pain. King noted that the pain developed into lower left dental pain due to a split in his gums. 10 King reported that he had an exposed nerve and experienced sharp shooting pain whenever he ate, 11 drank, or breathed cold air. (Id. ⁋ 20). NP Weston noted that King’s left gumline was displaced 12 with an obvious abnormality. There was no swelling, drainage, or erythema (reddening). NP 13 Weston noted tenderness to palpation of the jaw bilaterally and that King was able to open and 14 close his jaw without difficulty. (Id.) NP Weston assessed a mandible fracture and dental pain 15 due to a secondary fracture. She prescribed viscous lidocaine mouthwash and tramadol. 16 On October 25, 2018, King submitted another medical request. (Id. ⁋ 22). He complained 17 of pain from an exposed nerve in the gums where his jaw split. King reported that he had an 18 ongoing fracture “that you guys have neglected to provide surgery for.” (Id.). He noted that he 19 had been advised to see a dentist for the split gums and “that’s never happened either!” He asked 20 to see a dentist. (Id.). 21 King presented to Dr. Meha Kapadia (“Dr. Kapadia”), the facility dentist, on October 28, 22 2018. King complained that he had come to the jail with a fracture in his lower jaw four months 23 prior, and nothing had been about it. Dr. Kapadia noted that King’s pain was “0.” He reviewed 24 King’s records from Adventist Medical Center Hanford and noted that King was supposed to be 25 referred to an oral surgeon at CRMC for a follow-up. (Id. ⁋ 23). Dr. Kapadia completed a 26 request for specialist consultation, asking that King be seen by an oral surgeon on an “urgent” 27 basis. 1 Siddiqi noted that King had a history of a mandible fracture and was seen at the CRMC Oral 2 Surgery Clinic on August 27, 2018. He noted “ORIF was recommended, waiting.” Dr. Siddiqi 3 reviewed King’s medical records, he assessed him with hypertension and that he needed to have 4 ORIF. The plan was for King to receive an offsite consultation, and to continue ibuprofen and 5 lidocaine viscous mouthwash. (Id.). 6 King was seen at the CRMC Oral Surgery Clinic as scheduled on November 8, 2018, by 7 physician assistant Brady Angiulli and Dr. Robert Julian, an oral surgeon. (Id. ⁋ 26). Angiulli 8 noted that “Occlusion appears good [,] but teeth come in slight contact first at left premolars. 9 Slight step off to the left parasymphysis between incisors and canine. Good ROM [range of 10 motion] of TMJ [temporomandibular joint] without trismus. Bite appears midline.” (Id.). 11 Angiulli noted that “[d]ue to being healed and occlusion is adequate no surgical intervention at 12 this time as risks don’t outweigh benefits….” Angiulli recommended a bite adjustment via 13 dentistry, and Dr. Julian agreed with Angiulli. (Id.). 14 On November 14, 2018, NP Weston saw King for follow-up after the evaluation at the 15 CRMC Oral Surgery Clinic. NP Weston noted that according to the CRMC Oral Surgery Clinic, 16 King did not need surgical intervention at that time. King reported continued pain whenever he 17 moved his jaw. King also reported that he could feel his jaw shift whenever he was exercising or 18 doing anything strenuous. (Id. ⁋ 27). Additionally, he complained about having an exposed 19 nerve and split gum in the lower left front of his mouth. King stated that he wanted to exhaust all 20 his alternatives before proceeding with a lawsuit. (Id.). 21 NP Weston also noticed a fissure in King’s left lower gum without any signs or symptoms 22 of infection. King was able to open and close his mouth. NP Weston’s assessments were 23 “fractured mandible – healed without surgical intervention,” jaw pain, dental pain secondary to 24 fracture, and hypertension. The plan was for King to be referred to an oral surgeon for a bite 25 adjustment, and then to be seen by a dentist. (Id. ⁋ 28). Additionally, King was prescribed 26 ibuprofen, chlorhexidine mouthwash, and lisinopril. (Id.). 27 During the November 14, 2018, follow-up, NP Weston completed an offsite healthcare 1 abnormalities secondary to a fractured jaw. King was scheduled for an appointment at Western 2 Dental and Orthodontics on November 26, 2018. (Id. ⁋ 29). On that date, an unidentified 3 provider at Western Dental noted that King needed to see a prosthodontist. (Id. ⁋ 30). 4 On December 13, 2018, King presented to an oral surgeon, Dr. Spencer Anderson (“Dr. 5 Anderson”). (Id. ⁋ 34). Dr. Anderson reviewed a cone beam CT scan which was performed in 6 his office that day. Dr. Anderson noted that King’s mandible was in proper alignment and the 7 bony union “had indeed transpired at both the ramus and parasymphyseal fractures.” (Id. ⁋ 36). 8 Dr. Anderson’s assessment was “healed mandible fractures requiring no further treatment.” He 9 recommended an orthodontic evaluation as well as treatment by a dentist for King’s missing 10 teeth. Finally, Dr. Anderson noted, “no surgical intervention is recommended.” (Id. ⁋ 36). 11 On January 31, 2019, King presented to an orthodontist, Dr. Todd Wesslen. (Id. ⁋ 37). 12 Dr. Wesslen noted that “[t]he case likely needs to be seen by OMFS and if in fact the jaw fracture 13 has not healed, it needs to be set and potentially a bone graft placed.” (Id.) Dr. Wesslen later 14 spoke to Dr. Anderson by phone on February 12, 2019. (Id. ⁋ 38). Following his conversation 15 with Dr. Anderson, Dr. Wesslen thought that no oral surgery was needed. (Id.) 16 King’s retained obstetrician/gynecologist for this litigation, Dr. Paul Sinkhorn, attests that 17 based on the records he reviewed, there was no evidence of intent to harm by Dr. Siddiqi and NP 18 Weston. (Id. ⁋ 46). He also testified that there was no evidence of reckless conduct by Dr. Siddiqi 19 or NP Weston. Dr. Sinkhorn opined that Dr. Siddiqi and NP Weston should have advocated “to 20 actively attempt a more rapid consultation.” (Id.) 21 King also retained Dr. Christopher French, an oral surgeon. Dr. French testified at his 22 deposition in this case that, based on the records he reviewed, there was no evidence of malice by 23 Dr. Siddiqi or NP Weston. Dr. French believed it was “reckless” for Dr. Siddiqi and NP Weston 24 not to ensure King was seen by an oral surgeon within three to five days, as recommended by the 25 emergency department physician when King was discharged from the hospital on the day he 26 sustained his injuries. Dr. French opined that the standard of care permitted King to undergo 27 surgery up to two weeks after his injury. (Id. ⁋ 49). 1 healthcare services provided by Naphcare to the Kings County Jail during the relevant period. 2 She also testified about Naphcare’s expenditure for off-site care of inmates and that the cost 3 incurred for offsite care approved by Naphcare kept increasing, both before and after King was 4 treated. Kings County was not aware of any circumstances where Naphcare sought to save 5 money by delaying off-site care. (Id. ⁋ 51) 6 Defendants retained two experts who offered opinions about the applicable standard of 7 care: Dr. Alfred Joshua, a board-certified emergency medicine physician who specializes in 8 correctional medicine, and Dr. Alan Shelhamer, an oral surgeon. (Id. ⁋ 52). Both Drs. Joshua 9 and Shelhamer opined that the care King received was appropriate and within the applicable 10 standard of care. Drs. Joshua and Shelhamer also noted that it was appropriate for Dr. Siddiqi 11 and NP Weston to defer to the CRMC Oral Surgery Clinic as to the timing of care for King’s jaw 12 fractures. (Id.). 13 Defendants also retained Dr. David Hatcher, who opined that the manner in which King’s 14 fractures healed, in terms of realignment of the jaw, was as good as individuals who received 15 surgical treatment. (Id. ⁋ 53). 16 B. Plaintiff’s Alleged Facts 17 In addition to the parties’ JSUF, King relies on his own Statement of Undisputed Facts. 18 (ECF No. 62-2, “PSUF”).2 19 King asserts that during the relevant period, Naphcare’s Continuity and Coordination of 20 Care Policy required that all recommendations from specialty appointments be acted upon in a 21 timely manner. If there is any deviation from the indicated treatment, then clinical justification 22 for the alternative treatment will be documented in the chart and discussed with the patient. 23 (PSUF [19]). Neither Dr. Siddiqi, NP Weston, nor anyone else documented justification for any 24 “change” or “deviation” from the treatment plan set forth in the emergency department’s 25 discharge instructions for King (to follow-up for oral surgery within four to five days) or 26 discussed any alternative treatment with King. (Id. [12], [21], [23]). 27 2 Citations herein to the PSUF refer to the column number associated with the fact 1 In addition, during the relevant period, Naphcare had a dental care policy to provide “an 2 immediate referral to the dentist” when visual observation of the teeth and gums results in 3 notation of an obvious or gross abnormality. (Id. [36]). 4 Dr. Siddiqi had noted obvious abnormalities on King’s jaw when he examined him on 5 July 14, 2018, but he never referred him to the dentist. (Id. [37]). Dr. Siddiqi knew that King’s 6 jaw fracture needed to be treated as soon as possible as bones heal within four to six weeks 7 regardless of their alignment. (Id. [45]). 8 Naphcare’s dental care policy also provided that patients with at least moderate dental 9 pain were to be coded “priority” (as opposed to “routine”), and “should be” treated within seven 10 days. (Id. [24], citing Ricketts Decl., ECF No. 62-5, p. 6).3 A knocked-out tooth is a situation 11 which causes moderate pain which triggers the seven-day treatment period. (Id. [25]). Dr. Siddiqi 12 and NP Weston both knew that King had at least moderate dental pain. (Id. [27], [158]). 13 King was placed on a liquid diet for his first ten days at Kings County Jail. (Id. [28]). NP 14 Weston then placed King on a mechanical soft diet, but King could not eat the food served. King 15 complained about his food situation to no avail.4 King resorted to eating mashed-up packets of 16 ramen to feed himself. (Id. [29]). NP Weston noted that King was experiencing “sharp shooting 17 pain” with “any eating, drinking or breathing in cold air.” (Id. [86]). Nevertheless, NP Weston 18 made no effort to ensure that King would receive treatment within seven days. Under Naphcare’s 19 “Healthcare Access and Information Policy” at the time, Naphcare providers are not supposed to 20 permit unreasonable delays before patients are seen by offsite providers to address their serious 21 medical needs. (Id. [41]). 22 Dr. Siddiqi had the ability to set an alert for offsite care that needed to happen, but he 23 3 Although King asserts that the seven-day treatment period under the policy is a requirement, the policy sets forth that priority-coded inmates “should” receive treatment within 24 seven days. 25 4 King relies exclusively on his own declaration filed in support of his summary judgment 26 motion for the proposition that he complained about being put on a soft diet. He does not identify to whom he complained and he does not cite any medical records that document any such 27 complaint. Defendants dispute King’s assertion based on an attending nurse’s observation three days after King was switched to a soft diet that he was able to swallow and eat meals without 1 made no effort to check whether his urgent oral surgery consult plan had been followed. (Id. [51- 2 52]). 3 When King saw Dr. Siddiqi on December 14, 2018, he complained to Dr. Siddiqi that he 4 had been told by the OMFS Oral Surgery Clinic that since he had waited too long, he cannot have 5 surgery. Dr. Siddiqi told King that Naphcare did what it needed to do, and nothing further would 6 be done. (Id. [58]). NP Weston knew the risks related to not getting prompt surgery on broken 7 bones and that King needed to be seen by a specialist. NP Weston knew the seriousness of his 8 situation as she repeatedly viewed his patient chart throughout July and August 2018. (Id. [77]). 9 NP Weston learned on August 28, 2018, that King had three jaw fractures and that the 10 OMFS clinic recommended surgery to address his jaw fractures “ASAP.” NP Weston requested 11 offsite approval for the surgery, noting the recommendation that the surgery be accomplished 12 ASAP and was scheduled for November 8, 2018, which was over two months later. (Id. [83]). 13 Dr. Siddiqi had the ability to send King to the emergency room at any time for immediate 14 care. (Id. [59]). In addition, both Dr. Siddiqi and NP Weston had a variety of other alternatives 15 to expedite his care, such as calling to request an advancement or referring King to another oral 16 surgeon. (ECF No. 62, p. 12).5 17 That Naphcare knew King’s jaw fractures were an urgent concern is demonstrated by the 18 sharp uptick by Naphcare employees’ review of King’s medical chart. (Id. [111]).6 NP Weston 19 testified that most of the time, Naphcare’s patients do not see specialists within the time frame 20 specified by referring providers. (Id. [137]). According to NP Weston, since Naphcare rarely gets 21 patients to recommended specialists for follow-up care within the timeframes specified by the 22 emergency department, she perceived that nothing was unusual in King’s case. (Id. [141]). If NP 23 Weston perceived that a six-week wait was unusual, then she would have referred King to the 24 5 Although King does not cite record evidence that these alternatives were available, 25 Defendants do not reasonably dispute they could be available. 26 6 In support of this assertion, King references lodged Exhibit 200, which contains an excel spreadsheet documenting approximately 128 “entries” relating to Naphcare employees’ views of 27 the chart over a period of approximately 12 days. Defendants do not dispute the entries but dispute that the existence of these entries supports King’s assertion. See Def. Opp. to PSUF (ECF 1 emergency department. (Id. [142]). Likewise, NP Weston oversaw the cases of other patients 2 who experienced significant delays in offsite appointments for facial and jaw fractures. (E.g., 3 Ricketts Decl., Ex. L, ECF No. 62-6, p. 244). 4 On December 6, 2018, King was seen by Aguilar. (Id. [138]). Aguilar told him that he 5 did not get his surgery because Naphcare does not want to provide patients with offsite care. 6 Aguilar also told King that Naphcare intentionally delays these procedures in hopes that the 7 patient will be bailed out, released, or transferred to prison before the procedure can be done. (Id. 8 [139]). Aguilar referred King to a law firm so that he could get legal assistance with this case, 9 stating that he had been referred by Aguilar. (Id. [140]). 10 Naphcare has no policy requiring providers to treat comminuted fractures. (Id. [163]). In 11 addition, if Naphcare makes an appointment with an outside specialist, it does not question the 12 appointment date of those specialists, even if there is a lengthy delay. Naphcare commonly defers 13 to unacceptable wait times including a three month wait for a broken bone. (Id. at [164]). 14 As a result of Naphcare’s delay, King’s gumline is permanently uneven. Due to his 15 injuries, King is unable to have a prosthetic tooth implanted. Additionally, King continues to have 16 pain while chewing. Those issues would have been prevented if King had received his jaw 17 surgery on time. (PSUF [152]). 18 C. Defendants Objections to Plaintiff’s Statement of Facts 19 In response to the PSUF, Defendants filed a 25-page table of evidentiary objections. 20 (ECF No. 69-2). The objections largely are categorized into relevancy, foundation, hearsay, and 21 “contemporaneous and subsequent conduct” objections. The Court declines Defendants’ request 22 to rule on the relevancy, foundation, and hearsay objections. “At the summary judgment stage, 23 we do not focus on the admissibility of the evidence’s form. We instead focus on the 24 admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Accord, 25 Nevada Dep’t of Corr., 648 F.3d at 1019; Carmen, 237 F.3d at 1031. If the contents of a 26 document are presented in a form that would be admissible at trial, the mere fact that the 27 document itself might be excludable hearsay provides no basis for refusing to consider it on 1 IV. DISCUSSION 2 A. Deliberate Indifference Claims Against Defendants 3 The government has an obligation to provide medical care for “those whom it is punishing 4 by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). A person who is deliberately 5 indifferent to a prisoner’s serious medical needs violates the Eighth Amendment’s prohibition on 6 cruel and unusual punishment. (Id. at 104). However, “[m]edical malpractice does not become a 7 constitutional violation merely because the victim is a prisoner. In order to state a cognizable 8 claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate 9 indifference.” (Id. at 106). Likewise, the same standard applies to pretrial detainees, because 10 even though those claims arise under the due process clause of the Fourteenth Amendment, the 11 Eighth Amendment guarantees provide a minimum standard of care for determining a prisoner’s 12 rights as a pretrial detainee, including the prisoner’s rights to medical care. Russell v. Lumitap, 13 31 F.4th 729, 738 (9th Cir. 2022). Under either the Eighth Amendment or the Fourteenth 14 Amendment, a plaintiff must show that prison officials acted with objective “deliberate 15 indifference.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1068 (9th Cir. 2016) (en banc). A 16 pretrial detainee who brings an inadequate medical care claim must show that: 17 (i) The defendant made an intentional decision with respect to the condition under which the plaintiff was confined; (ii) those 18 conditions put the plaintiff at a substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures 19 to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk 20 involved –making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused 21 the plaintiff’s injuries. 22 23 Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018). Under the second prong of 24 the test outlined by Gordon, a “substantial risk of serious harm” in an inadequate-medical-care 25 context exists if there is a serious medical need and a “failure to treat a prisoner’s condition could 26 result in further significant injury or the unnecessary and wanton infliction of pain.” Peralta v. 27 Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th 1 comment or treatment, medical conditions that significantly affect a prisoner’s daily activities, or 2 chronic and substantial pain are examples of serious needs for medical treatment. McGuckin v. 3 Smith, 974 F.2d 1050, 1059-1060 (9th Cir. 1992) (overruled in part on other grounds by WMX 4 Techs. Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997 (en banc)); Hunt v. Dental Dept., 865 F.2d 5 198, 200-01 (9th Cir. 1989). 6 Under the third prong, defendants may be liable even if they did not actually draw the 7 inference that the plaintiff was at a substantial risk of suffering serious harm, so long as a 8 reasonable official in the same circumstances would have drawn that inference. Russell, 31 F.4th 9 at 740. Therefore, under this objective reasonableness standard, the plaintiff must “prove more 10 than negligence but less than subjective intent – something akin to reckless disregard.” Castro, 11 833 F.3d at 1071. 12 * * * * * 13 Although not raised by the parties, King’s second cause of action alleging deliberate 14 indifference to King’s serious medical needs names as Defendants NP Weston, Dr. Siddiqi, and 15 their employer/agent Naphcare, Inc. See Complaint (ECF No. 1) at pp. 18-20. King’s inclusion 16 of Naphcare in this claim does not appear to be a scrivener’s error: the substantive allegations 17 within the claim assert that Naphcare “failed to timely send Plaintiff to an oral surgeon,” 18 “conspired … to harm Plaintiff,” and undertook actions that were “malicious [and] willful.” (Id. 19 at ⁋⁋ 129, 133, 134). However, in Monell, the Supreme Court affirmed that “the doctrine 20 of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the 21 constitutional torts of their employees.” 436 U.S. at 663 n.7. Presumably, that is why King 22 named Naphcare in a separate cause of action for municipal and supervisory liability. 23 Because Naphcare may not be sued under the theory of respondeat superior on a claim of 24 deliberate indifference to serious medical needs, and instead may be liable under § 1983 only 25 consistent with Monell, the Court will grant Defendants’ motion to the extent of dismissing 26 Naphcare from King’s second claim for relief (King’s separate claim against Naphcare under 27 Monell municipal and supervisory liability is addressed below). 1 1. Whether Dr. Siddiqi and NP Weston Made an Intentional Decision 2 Defendants assert the first prong of the Gordon test cannot be satisfied because NP 3 Weston and Dr. Siddiqi both made timely referrals to the CRMC Oral Surgery Clinic and, thus, 4 were not the cause of King’s injury. (JSUF ⁋ 4; ECF No. 61-5, p. 33). According to Defendants, 5 the timing of King’s appointment was the decision of the CRMC Oral Surgery Clinic, not the 6 Defendants. Defendants also point to evidence that the CRMC Oral Surgery Clinic’s “physician 7 team” was aware of King’s fractures and that his appointment was scheduled at a time based on 8 the physician team’s consideration of King’s circumstances. (JSUF ⁋ 7, ECF No. 61-8, p. 34). 9 In addition, Defendants’ retained experts (Drs. Joshua and Shelhamer) opined that it was 10 appropriate for Dr. Siddiqi and NP Weston to defer to the CRMC Oral Surgery Clinic as to the 11 timing of care for King’s jaw fractures. (ECF No. 61-9, pp. 8, 14-16). Drs. Joshua and 12 Shelhamer noted that there was no need to send Plaintiff to an emergency department because his 13 condition was not urgent. In essence, Defendants argue that they did not make an intentional 14 decision because their responsibility to ensure King received timely medical care ended once they 15 made the referral to the CRMC Oral Surgery Clinic. Alternatively, Defendants argue that since 16 King’s injury was not urgent, Dr. Siddiqi and NP Weston made the correct decision to defer to the 17 CRMC Oral Surgery Clinic. 18 However, other record facts undermine Defendants’ arguments. NP Weston testified that 19 she considers it part of her role to challenge orders that she knew were not right. (ECF No. 65-6, 20 p. 54). Likewise, Dr. Siddiqi conceded that, under some circumstances, he is obligated to follow- 21 up after submitting an offsite referral: 22 Q. And so even if you write the request, write the referral, give it to the right person, you can’t just wash your hands of it and say, Well, 23 I put in the request. You got to follow up and make sure that your orders are being carried out, correct? 24 A. Correct 25 26 (ECF No. 65-6, p. 118). In addition, Dr. French, an oral and maxillofacial surgeon retained by 27 King, opined that the treatment King received fell below the applicable standard of care for 1 chewing.” (Ricketts Decl, Ex. K, ECF No. 62-6). In his deposition, Dr. French stated that he 2 believed that Dr. Siddiqi and NP Weston acted recklessly by not taking additional steps to ensure 3 King was seen by a specialist within three to five days. (JSUF ⁋ 49). Based on this, a reasonable 4 juror could find that NP Weston and Dr. Siddiqi both made an intentional decision regarding 5 King’s surgery referral. 6 The factfinder could also conclude that NP Weston and Dr. Siddiqi could not reasonably 7 defer to the scheduled appointment date set by the CRMC Oral Surgery Clinic. The evidence 8 summarized above plausibly suggests that Defendants made an intentional decision concerning 9 the conditions under which King was confined – specifically, their decision not to follow-up and 10 inquire whether an offsite appointment could be scheduled within the time recommended by the 11 emergency department physician. Over time, Defendants repeatedly observed and noted King’s 12 continued distressed state and pain, but deliberately chose not to take action in response. Nothing 13 more than that intentional decision to refrain from acting is required, as the Ninth Circuit made 14 clear in Jett. There, the prison doctor recognized the plaintiff’s need to see a specialist (in that 15 case, an orthopedist), as evidenced by the prison doctor’s own referral, but the plaintiff was not 16 taken to see the specialist for at least six months. Jett, 439 F.3d at 1097–98. The Court concluded 17 that a trier of fact could find that the doctor was aware of the plaintiff’s need for treatment and 18 that the doctor’s “failure to see [the plaintiff] to ensure [administration of the prescribed 19 treatment] was deliberate indifference to a serious medical condition.” Id. See Castro, 833 F.3d 20 at 1070 (a failure to act with respect to a known condition may constitute an intentional decision); 21 Scalia v. County of Kern, 493 F. Supp.3d 890, 899 (E.D. Cal. 2019) (denying defendants’ motion 22 for summary judgment, in part because there were “factual disputes regarding Nurse Blakely’s 23 intentional decisions to not act during both of her examinations, such as deciding to not call a 24 physician nor perform a formal neurological assessment”). 25 The facts and authority cited above demonstrate that a health provider’s responsibilities 26 require critical thinking and advocacy for the best health outcomes. Just as it may not be enough 27 to defer to doctor’s orders in a degrading medical situation (as in Jett, supra), a reasonable jury 1 CRMC’s Oral Surgery Clinic’s appointment date when they knew that King had an urgent 2 condition. 3 2. Whether NP Weston’s and Dr. Siddiqi’s Decision Placed King in a Substantial 4 Risk of Serious Harm. 5 Defendants claim that no act or omission by Dr. Siddiqi or NP Weston placed King at risk 6 of suffering serious harm. They point to Dr. Shelhamer’s review of King’s medical records and 7 his opinion that King’s jaw fractures were amenable to treatment with a soft diet, and no chewing 8 for a while. (ECF No. 61-9, p. 13). According to Dr. Shelhamer, King was able to eat, drink and 9 speak, and his pain was well managed. (Id.) Dr. Shelhamer adds: “There was nothing urgent or 10 emergent about Mr. King’s condition while [he] was waiting to be seen by an oral surgeon.” (Id. 11 at 14). Defendants also point to Dr. French’s deposition testimony: 12 Q. Okay. Did any action by Dr. Siddiqi place Mr. King at a high risk of suffering serious harm? 13 A. What would you describe as serious harm? 14 A. To me, serious harm would be death or grave bodily injury 15 Q. Okay 16 A. So no 17 18 (ECF No. 61-10. p. 15). But Dr. Shelhamer and Dr. Siddiqi’s subjective assessment of the 19 severity of King’s condition is qualitatively distinct from the legal standard under Gordon’s 20 second element – the existence of a “substantial risk of suffering serious harm.” Injuries that a 21 reasonable doctor would find important and worthy of comment or treatment, medical conditions 22 that significantly affect a prisoner’s daily activities or a chronic and substantial pain are examples 23 of a serious need for medical treatment. McGuckin, 974 F.2d at 1059-1060. Here, although the 24 evidence is disputed, there are record facts indicating that King repeatedly complained of 25 experiencing pain, fearing an exposed nerve in his mouth, suffering lockjaw and being unable to 26 chew. 27 Additionally, King’s medical record reveals that his injuries were consistently treated as 1 Q. . . .at the time that you referred Mr. King out to be seen by an oral surgeon, it was your expectation that he was going to be seen on an 2 urgent basis, that’s why you made it an urgent request, correct? 3 A. Correct. 4 (ECF No. 65-6, p. 116). Likewise, NP Weston answered as follows during her deposition: 5 Q .. . . You don’t agree that Mr. King needed to see an oral surgeon on an urgent basis; correct? 6 A. I – Yes. He did need to see an oral surgeon. 7 Q. And he needed to see the oral surgeon on an urgent basis; correct? 8 A. Correct 9 (ECF No. 65-6, p. 47). A reasonable jury could find that chewing is an important daily activity 10 that would be gravely impacted by untreated injuries to a person’s jaw. In sum, there is enough 11 conflicting evidence in the record – whether the expert witnesses’ divergent opinions or Dr. 12 Siddiqi and NP Weston’s own deposition testimony – that determining whether Defendants’ 13 inaction or mistreatment of King substantially risked causing him serious harm is a triable issue 14 not suitable for resolution on summary judgment. 15 3-4. Whether Defendants Took Reasonable Available Measures to Abate or Reduce the 16 Risk of Serious Harm and Whether Such Harm did Result. 17 Naphcare’s “Continuity and Coordination of Care During Incarceration” policy document 18 sets out: 19 Naphcare will ensure that appropriate access to hospital and 20 specialist care is made available when necessary and within the clinically indicated timeframe. It is required that inmates in need of 21 health care beyond facility resources, as determined by the responsible physician, to be transferred under appropriate security 22 provisions to a facility where such care is available. 23 (Ricketts Decl, Ex. 13, ECF No. 65-5 p. 12). Likewise, Naphcare’s Dental Health Care policy 24 provides that whenever obvious or gross abnormality in a patient’s teeth or gums is observed, a 25 dentist should be immediately referred. Inmates with emergent or urgent treatment should be 26 prioritized. Inmates who are in moderate or chronic pain should receive treatment within seven 27 days. (Id. at 6). These documents demonstrate that Naphcare has developed reasonable available measures 1 that may have been pursued to mitigate King’s risk of harm. A reasonable jury could conclude 2 that Defendants not only had reasonable measures available, but also were required to take action 3 to ensure that such harm would not transpire. See McGuckin, 974 F.2d at 1060 (holding that 4 deliberate indifference claim resting on “mere delay of surgery” can survive if the denial caused 5 harm); Egberto v. Nevada Dep’t of Corr., 678 F. App’x 500, 504 (9th Cir. 2017) (reversing grant 6 of summary judgment on deliberate indifference claim because a factfinder could infer that at 7 least some of plaintiff’s deteriorated physical condition occurred while he was waiting to receive 8 an MRI); Peralta, 744 F.3d at 1086 (noting that for purposes of establishing a serious medical 9 need, a three month delay in providing care could create a genuine issue of material fact); Brown 10 v. County of Mariposa, No. 1:18-cv-01541-LJO-SAB, 2019 WL 1993990, at *4 (E.D. Cal. May 11 6, 2019) (finding that broken bones in a plaintiff’s face and shoulder that went without surgery for 12 months which resulted in improper healing alleged a serious medical need). 13 Dr. French, an oral and maxillofacial surgeon, opined that because of the delay, King has 14 had months of undue pain associated with the fractures. (Ricketts Decl, Ex. K, ECF No. 65-6, p. 15 238). Dr. French further believes that if Mr. King had been treated in a timely manner, “it is more 16 likely than not” that eight weeks after the surgical repair, he would not be experiencing pain or 17 chewing dysfunction. Based on legal authority (discussed above) that treatment delays resulting 18 in harm may satisfy the substantial risk of serious harm element, as well as Dr. French’s 19 testimony that the delay did in fact create a preventable harm, King has adequately identified a 20 triable issue of material fact under the third and fourth prong of the Gordon test. To be sure, 21 while a “a difference of medical opinion regarding . . . treatment” does not rise to the level of a 22 constitutional violation, a defendant can still be held liable for actions that were “medically 23 unacceptable under the circumstances.” Toguchi v Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); 24 Sandoval, 985 F.3d at 671. A reasonable jury may find that delaying King’s referral to an oral 25 surgeon for more than one month (when the discharge instructions directed a follow-up within 26 days of the incident), and further delay of surgery for more than two months until a point where 27 the “risks [of surgery] don’t outweigh the benefits” (JSUF ⁋ 26) was “medically unacceptable.” 1 long delay in presenting King for planned surgery and teeth extraction was also unacceptable. 2 In sum, as there are disputed issues of material fact that prevent this Court from 3 conclusively deciding any of the elements under the Gordon analysis, summary judgment is 4 appropriately denied as to King’s second cause of action alleging that Defendants were 5 deliberately indifferent to King’s serious medical needs under the Fourteenth Amendment and 42 6 U.S.C § 1983. 7 B. Monell Claim Against Defendant Naphcare 8 “A municipality may be held liable under § 1983 ‘when execution of a government’s 9 policy or custom, whether made by its lawmakers or by those edicts or acts may be fairly said to 10 represent official policy, inflicts the injury.’” Burke v. County of Alameda, 586 F.3d 725, 734 11 (9th Cir. 2009) (quoting Monell, 436 U.S. at 694). Private entities acting under color of state law 12 are subject to liability under Monell to the extent an official policy or custom of the private entity 13 caused a plaintiff’s alleged constitutional violation. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 14 1139 (9th Cir. 2012).7 To establish municipal liability under § 1983, King must show that (1) he 15 was deprived of a constitutional right; (2) Naphcare had a policy or custom; (3) the policy or 16 custom amounted to a deliberate indifference to his constitutional right; and (4) the policy was the 17 moving force behind the constitutional violation. Burke, 586 F.3d at 734. 18 A policy under Monell is “a deliberate choice to follow a course of action ... made from 19 among various alternatives by the official or officials responsible for establishing final policy 20 with respect to the subject matter in question.” Tsao, 698 F.3d at 1143 (internal quotations and 21 citation omitted). The Ninth Circuit recognizes two types of policies under Monell. “A policy of 22 action is one in which the [entity] itself violates someone’s constitutional rights, or instructs its 23 employees to do so; a policy of inaction is based on [the entity’s] ‘failure to implement 24 procedural safeguards to prevent constitutional violations.’” Jackson v. Barnes, 749 F.3d 755, 25 763 (9th Cir. 2014) (quoting Tsao, 698 F.3d at 1143). In “inaction cases,” establishing deliberate 26 indifference under Monell “requires showing that the defendant ‘was on actual or constructive 27 7 Naphcare does not dispute that it was acting under color of state law. See ECF No. 61-1, pp. 13-18 (challenging Monell liability only on the ground that Naphcare had no policy or custom 1 notice that its omission would likely result in a constitutional violation.’” Id. (quoting Tsao, 698 2 F.3d at 1145). 3 A custom is “a widespread practice that, although not authorized by written law or express 4 municipal policy, is so permanent and well-settled as to constitute a custom or usage with the 5 force of law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (internal quotations 6 omitted). The custom must be so “persistent and widespread” that it constitutes a “permanent and 7 well settled” practice. Monell, 436 U.S. at 691 (internal quotation omitted). “Liability for 8 improper custom may not be predicated on isolated or sporadic incidents; it must be founded 9 upon practices of sufficient duration, frequency and consistency that the conduct has become a 10 traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 11 However, “contemporaneous or subsequent conduct cannot establish a pattern of violations that 12 would provide ‘notice to the [local government entity] and the opportunity to conform to 13 constitutional dictates.’” Connick v. Thompson, 563 U.S. 51, 63 n.7 (2011). 14 An entity is deliberately indifferent “when the need for more or different action ‘is so 15 obvious, and the inadequacy [of the procedure at issue] so likely to result in the violation of 16 constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately 17 indifferent to the need.” Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1477-78 (9th 18 Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). 19 1. Whether any Failure by Dr. Siddiqi or NP Weston Deprived King of his 20 Constitutional Rights 21 The parties dispute whether Dr. Siddiqi and NP Weston’s failure to ensure King was 22 timely seen in the CRMC Oral Surgery Clinic amounts to a constitutional violation. Defendants 23 assert that the applicable standard of care distinguishes between orders and recommendations. 24 They point to Dr. Shelhamer’s opinion that instructions from an emergency department are not 25 orders, but instead should be interpreted as recommendations. (Couchot Decl, Ex. H, ECF No. 26 61-9, p. 14). Dr. Shelhamer further opines that the timing for an oral surgery should be 27 determined solely by the judgment of the oral surgeon, and the types of injuries that King 1 receives requests from emergency departments, but in his experience, it is rare that patients like 2 King are seen within a three- or four-week period. (Id., pp. 14-15). 3 Dr. Shelhamer’s testimony conflicts with Dr. French’s testimony that the standard of care 4 mandates treatment of injuries like King’s as soon as possible, but no later than within two weeks 5 of the injury. (ECF No. 61-9, p. 30). Dr. Shelhamer’s testimony is also at odds with Dr. Siddiqi 6 and NP Weston’s own prioritization of the discharge notes when they classified King’s injuries as 7 “urgent.” (JSUF ⁋⁋ 5, 15). 8 The Court disagrees with Defendants’ proposition that there is a difference between 9 “orders” and “recommendations.” In Shapley v. Nevada Bd. of State Prison Commissioners, the 10 Court found that a prison official’s delay in making the plaintiff inmate available for surgery 11 following the recommendations of surgery by several physicians presented a viable theory of 12 deliberate medical indifference. 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). The Court 13 summarized relevant issues in the case that could be tried to a jury: “evidentiary issues 14 concerning the delay of surgery, including the extent of [the inmate’s] injury, when surgery was 15 recommended, which doctors recommended surgery and their reasons for doing so, whether 16 prison officials were aware of these recommendations, whether the delay was justified, whether it 17 injured plaintiff, and so forth.” Id. Accord, Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th 18 Cir. 1999) (allegations that a prison official ignored the instructions of a plaintiff’s treating 19 physician were sufficient to support a claim of deliberate indifference). 20 King presents sufficient evidence to persuade this Court that a triable issue of fact remains 21 on the question of the individual Defendants’ deliberate indifference. The Defendants knew that 22 King’s attending physicians had recommend a follow-up surgical consultation and surgery within 23 a relatively short amount of time. They also knew that the follow-up consultation and later 24 appointment for surgery were scheduled much later than the recommended times – but seemingly 25 did nothing in an attempt to expedite the appointments, despite King’s reports of experiencing 26 pain. Indeed, Naphcare recognized the severity of the issue when it expressed concern King 27 might sue: “Does [King] have any recommendations…besides suing us? … Have you shown 1 with finding someone with a resolution for him?” (Ricketts Decl, Ex. 155, ECF No. 62-5). 2 2. Whether the Delay Occurred as the Result of a Custom or Policy Adopted by 3 Naphcare 4 King largely frames his theory of Naphcare’s Monell liability as a policy of inaction. 5 Thus, he characterizes the issue at the outset of his motion for summary judgment as liability 6 based on “a healthcare company’s practice of failing to timely address inmates’ serious medical 7 needs.” (ECF No. 62, p. 1). He similarly summarizes the theory in his suggested Monell jury 8 instruction as such: “policies are inadequate to handle usual and recurring situations with which 9 Naphcare employees must deal.” (Id., p. 3). 10 Liability for an improper custom must be founded on “practices of sufficient duration, 11 frequency, and consistency that the conduct has become a traditional method of carrying out 12 policy.” Oyenik v. Corizon Health, 696 F. App’x. 792, 794 (9th Cir. 2017) (quoting Trevino, 99 13 F.3d at 918). A plaintiff cannot demonstrate the existence of a policy based on a single 14 occurrence of unconstitutional action committed by a non-policymaking employee. McDade v. 15 West, 223 F.3d 1135, 1141 (9th Cir. 2000). Likewise, isolated, or sporadic incidents are not 16 sufficient to establish a custom for Monell liability. Oyenik, 696 F. App’x. at 794. 17 King asserts that his delayed treatment is symptomatic of Naphcare’s broader custom of 18 inaction. He highlights NP Weston’s testimony that, in her experience, Naphcare patients 19 commonly experience delays in appearing for offsite appointments within the referring doctor’s 20 recommended timeframe. (Ricketts Decl., Ex C, ECF 62-6, p. 46). NP Weston’s deposition 21 testimony does not support the proposition that any delays by Naphcare in scheduling patients to 22 see specialists were of unreasonable length, or more importantly, that they caused patients to 23 suffer additional harm with any frequency. Indeed, NP Weston clarified that, if speedier care 24 were necessary for any particular patient, she would take action, such as by sending the patient to 25 the emergency room. (Id.). 26 King also submits his own declaration in which he states a Naphcare registered nurse told 27 him that because his surgery was a costly procedure, Naphcare hoped to delay surgery until he 1 However, in his own deposition, the nurse denied ever making such a statement. (Couchot Decl., 2 Ex. T, ECF No. 66-13, p. 5). See Villiarimo v. Aloha Island Air., Inc., 281 F.3d 1054, 1061 (9th 3 Cir. 2002) (refusing to find a genuine issue where the only evidence presented is “uncorroborated 4 and self-serving” testimony). 5 In addition, King presents a letter from Naphcare to the King’s County Office of County 6 Administrator dated March 8, 2019, in which Naphcare reports that it was working closely with 7 the Kings County Jail to “further reduce our offsite send-outs.” (Ricketts Decl., Ex. CC, ECF No. 8 65-6, p. 379). King argues that a jury could infer that Naphcare’s efforts to control offsite costs in 9 early-2019 “began in 2018.” (ECF No. 65, p. 19). The letter supports no such inference – 10 Naphcare acknowledged supporting offsite trips as “appropriate” and incorporating telemedicine 11 for specialty visits. In all events, Naphcare approved all of King’s referrals to offsite specialists; 12 thus, any purported policy by Naphcare of limiting offsite specialty visits did not impact King, 13 who timely was referred to an offsite consultation and subsequent appointment for anticipated 14 surgery. 15 King’s principal support for the existence of a policy or custom of delay by Naphcare 16 comes from declarations by and accounts of other inmates he characterizes as having experienced 17 similar delays in treatment, which King argues constitute circumstantial evidence that such delays 18 are customary for Naphcare. For instance, in a declaration submitted in an unrelated action 19 against Naphcare, Michael Valdez declares that he was injured on January 1, 2016, and received a 20 note stating that he should follow up with an ophthalmologist no later than January 4, 2016. 21 (Ricketts Decl., Ex. H, ECF No. 62-6, pp. 218-22). Valdez attests that he did not see anyone 22 about his eye until “he complained to” a Naphcare nurse practitioner approximately two weeks 23 later. (Id.) King asserts that the Valdez suit put Naphcare on notice of its potentially 24 unconstitutional conduct, that Naphcare did nothing to remedy the issue, and that Naphcare’s 25 unwillingness to improve its processes led to King’s constitutional deprivation. (ECF No.65, p. 26 25). 27 King’s proffer of facts concerning Valdez’s circumstances is wholly inadequate for this 1 indifference of a constitutional order. Valdez attests that immediately upon complaining to a 2 Naphcare nurse practitioner about his condition, he was taken to see an optometrist. Although 3 King complains that Valdez had been referred to see an ophthalmologist (not an optometrist), the 4 Court fails to see how this demonstrates a deliberately indifferent policy by Naphcare. 5 Presumably, an optometrist would be in a better position than the Naphcare nurse practitioner to 6 assess whether Valdez was a candidate for a follow-up with an ophthalmologist. In short, without 7 additional facts, the Court cannot find that the Valdez example convincingly demonstrates a prior 8 occasion of Naphcare’s alleged policy of inaction.8 9 King also offers a modified version of a Naphcare spreadsheet that includes certain 10 information relating to the scheduling of offsite care for a “Patient B.” (Ricketts Decl., Ex. L, 11 ECF No. 62-6, p. 244). Among other things, the spreadsheet purports to memorialize that NP 12 Weston recognized Patient B needed to have an urgent jaw surgery on March 8, 2018. (Id.). The 13 appointment appears to have been canceled on March 21, 2018, leading NP Weston to note: 14 “[N]eeds to see another oral surgeon ASAP for fractured jaw.” Patient B finally received the jaw 15 surgery on May 17, 2018, two months after the urgent need for surgery was identified. (Id.) 16 Once again, it might be the case that Patient B suffered harm as the result of a deliberately 17 indifferent policy of inaction by Naphcare. But the Court can draw no such conclusion from what 18 King presents in connection with Patient B – seven rows from a Naphcare spreadsheet 19 documenting truncated comments from a nurse practitioner without context or details. 20 Other examples provided by King in support of his assertion that Naphcare follows a 21 policy or practice of indifference – Patients “D”,” F”,” G”,” L”, “I” and a declaration from 22 prisoner Geordie Carrillo – are even less compelling. (Ricketts Decl., Exs. L & I, ECF No. 62-6, 23 p. 244). For instance, NP Weston documented that Patient D needed oral surgery for 24 “[c]omminuted fx of anterior and lateral wall of left maxillary sinus [n]eeds OMFS evaluation.” 25 26 8 The Court is unable to locate any additional facts about Valdez’s circumstances that might inform the Court’s assessment in this regard because Naphcare was dismissed from 27 Valdez’s lawsuit on the grounds that Valdez failed to plead that Naphcare adhered to any policies demonstrating deliberate indifference. See Valdez v. County of Kings, No. 1:17-cv-00430-LJO- 1 (Id.). However, the record entry lists the priority as “routine,” and, thus, Patient D is not an 2 analogous situation in which a reasonable fact finder could infer of a custom of delay relating to 3 procedures recommended on an urgent basis. The remaining anonymous patients and Geordie 4 Carrillo all were seen by Naphcare either contemporaneously with King or after he entered their 5 care. Such examples of purported contemporaneous or subsequent deliberate indifference are 6 incapable of demonstrating a pattern of violations that would provide notice to Naphcare and the 7 opportunity for it to conform to constitutional dictates. Connick, 563 U.S. at 63 n.7. See Estate of 8 Mendez v. City of Ceres, 390 F. Supp.3d 1189, 1209-11 (E.D. Cal. 2019) (reviewing timing and 9 likeness of proffered examples of municipality’s alleged inaction and finding they were too 10 disparate to constitute a pattern sufficient under Monell). 11 Setting aside the infirmities of the examples noted above that undermines their utility in 12 weighing whether Naphcare had adequate notice of a constitutionally defective policy of inaction, 13 only the cases of Valdez and Patient B present possible prior examples of deliberate indifference. 14 That is insufficient to establish a practice or custom under Monell. See, e.g., Trevino, 99 F.3d at 15 918 (two incidents are not enough to establish custom); Meehan v. City of Los Angeles, 856 F.2d 16 102, 107 (9th Cir. 1988) (same). 17 Because there is no disputed issue of material fact as to whether any deliberate 18 indifference by Defendants towards King was the result of any Naphcare policy or custom, 19 summary judgment dismissing King’s fourth cause of action asserting a claim against Naphcare 20 for municipal and supervisory liability under Monell is appropriate. As King fails to present any 21 triable issues of fact on this element, he likewise cannot establish under Monell that any policy or 22 custom was the “moving force” behind any deprivation of his constitutional rights. See Celotex 23 Corp., 477 U.S. at 332 (“[A] complete failure of proof concerning an essential element of the 24 nonmoving party’s case necessarily renders all other facts immaterial.”). 25 V. CONCLUSION AND ORDER 26 For the foregoing reasons, Plaintiff Barry King’s motion for summary judgment is 27 DENIED in its entirety and Defendants’ motion for summary judgment is GRANTED in part and 1 (1) Defendants’ motion for summary judgment on King’s second cause of action alleging 2 | that Defendants Nurse Practitioner Robynn Weston, Dr. Naeem Siddiqi, and their employer/agent 3 | Naphcare, Inc., were deliberately indifferent to King’s serious medical needs under the 4 | Fourteenth Amendment and 42 U.S.C § 1983 is GRANTED as to Naphcare and DENIED as to 5 | NP Weston and Dr. Siddiqi; and 6 (2) Defendants’ motion for summary judgment on King’s fourth cause of action asserting 7 | aclaim against Naphcare for municipal and supervisory liability under Monell is GRANTED. 8 9 IT IS ORDERED that the parties SHALL appear for a status conference on May 9, 2023, 10 | at 10:30 a.m. The parties may appear at the status conference via Zoom, details for which the 11 || parties may request from Courtroom Deputy Susan Hall (shall@caed.uscourts.gov). In advance 12 | of the status conference, the parties SHALL meet and confer about further scheduling of the case 13 | and be prepared to identify to the Court dates of mutual availability for pretrial conference and 14 | trial. The parties also are encouraged to discuss settlement and be prepared to address whether 15 | they request the Court schedule a settlement conference before an unassigned magistrate judge. 16 | IT IS □□ ORDERED. Dated: _ April 14, 2023 | br Pr 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 IQ