Mollica v. County of Sacramento ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Lia D. Mollica, No. 2:19-cv-02017-KJM-DB 12 Plaintiff, ORDER 13 v. 14 County of Sacramento, et al., 1S Defendants. 16 17 Plaintiff Lia Mollica brings this action against Sacramento County and its employees for 18 | injuries she sustained while incarcerated in the County’s jail. Defendants move for summary 19 | judgment on all of plaintiffs claims. For the reasons below the court grants the motion in part 20 | and denies the motion in part. 21 | I. EVIDENTIARY OBJECTIONS 22 Defendants object to plaintiff's evidence. Objs., ECF No. 85-3. Without providing any 23 | explanation, defendants make broad generalized objections on grounds of hearsay, lacking 24 | foundation, authentication or personal knowledge, and relevancy. See generally id. The court 25 | finds these objections lack merit. 26 As to relevancy, the court does not rely on irrelevant evidence when considering motions 27 | for summary judgment. The relevancy objections are redundant and thus are overruled. See 28 | Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006) (“[O]bjections to 1 evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it 2 constitutes an improper legal conclusion are all duplicative of the summary judgment standard 3 itself.”). 4 The court also overrules the objections on the grounds of hearsay, lacking foundation, 5 authentication or personal knowledge. Generally, the admissibility of evidence at summary 6 judgment is governed by different rules and different motivations than at trial. At summary 7 judgment, Federal Rule of Civil Procedure 56 allows objections to evidence when “the material 8 cited . . . cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 9 56(c)(2). As this language suggests, at summary judgment, the propriety of evidence depends not 10 on its form, but on its content. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Additionally, 11 an objection’s context is crucial. A party who opposes summary judgment can prevail by 12 demonstrating “a question of fact remains for trial,” so courts commonly “treat[] the opposing 13 party’s papers more indulgently than the moving party’s papers.” Burch, 433 F. Supp. 2d at 1121 14 (quoting Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985)). District courts have 15 discretion “to be somewhat lenient” if the opposing party’s evidence falls short of the “formalities 16 of Rule 56.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1261 (9th 17 Cir. 1993); see also Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979) (“[C]ourts 18 generally are much more lenient with the affidavits of a party opposing a summary judgment 19 motion.”). For example, on review of summary judgment, the Ninth Circuit has considered the 20 hearsay contents of a diary whose substance could be admissible in another form at trial. See 21 Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). Authenticity problems may also be 22 excused if those problems could likely be cured. See, e.g., Welenco, Inc. v. Corbell, 23 126 F. Supp. 3d 1154, 1163–64 (E.D. Cal. 2015). 24 The court finds the contents in the medical records, journal, emails and grievance forms 25 may be admissible in another form at trial. For example, the contents may fall under hearsay 26 exclusions and exceptions under Federal Rules of Evidence 801 and 803, including then-existing 27 mental, emotional, or physical condition, opposing party statements, statements made for medical 28 diagnosis or treatment, records of regularly conducted activity and recorded recollection. See, 1 e.g., Fed. R. Evid. 801(d)(2), 803(3)–(6). These documents could also be properly authenticated 2 at trial. See Fed. R. Evid. 901. Moreover, defendants have not given the court any specific 3 reason to doubt the authenticity of the documents they challenge. See Objs.; see also Del Campo 4 v. Am. Corrective Counseling Serv., Inc., 718 F. Supp. 2d 1116, 1123 n.10 (N.D. Cal. 2010) 5 (“Since Defendants do not specify any reason to doubt the authenticity of documents that they 6 themselves produced in discovery, the Court finds the documents properly authenticated under 7 Fed. R. Evid. 901.”). Accordingly, defendants’ objections are overruled. 8 II. MOTION TO STRIKE 9 Defendants move to strike plaintiff’s Exhibits N, O and P for violating a discovery only 10 Protective Order and potentially violating third parties’ privacy rights. Mot. Strike at 3, ECF No. 11 85-3.1 Defendants also move to strike the declaration of Edward Marin for plaintiffs’ failure to 12 disclose during initial disclosures. Id. The court already has ordered plaintiff to file a redacted 13 version of Exhibit O, see Mins. Mot. Hr’g, ECF No. 88; Ex. O, ECF No. 89, and has stricken 14 Exhibits N and P from the record. See Order Strike, ECF No. 90; Min. Order, ECF No. 92. 15 Additionally, the court does not rely on the Marin declaration in deciding this motion. See In re 16 Clark, 662 F. App’x 544, 548 n.3 (9th Cir. 2016) (unpublished) (denying party’s request to strike 17 declaration as moot because court did not rely on it). Accordingly, the motion to strike these 18 documents is denied as moot. 19 III. BACKGROUND 20 The court finds the following facts are supported by the record and construes them in the 21 light most favorable to plaintiff as required. On May 4, 2019, plaintiff was arrested for violating 22 the terms and conditions of the Sacramento County Sheriff’s Department’s work release program. 23 First Amended Complaint (FAC) ¶ 13, ECF No. 20; Defs.’ Reply to Pl.’s Resp. to Statement of 24 Undisp. Facts (SUF) ¶ 2, ECF No. 85-2; Defs.’ Resp. to Pl.’s Statement of Disp. Facts (SDF) ¶ 1, 25 ECF No. 85-1. On May 8, 2019, while plaintiff was incarcerated at Sacramento County Main 26 Jail, plaintiff fell from her bunk and injured her foot. SUF ¶¶ 3–4; see Arrest Docs. at 8, Merin 1 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system unless otherwise noted. 1 Decl. Ex. A, ECF No. 91; Medical Records at 59, Merin Decl. Ex. B. An orthopedic technician 2 placed plaintiff in a splint and fitted her with crutches. Medical Records at 59. The next day, a 3 radiologist x-rayed plaintiff’s foot and a doctor who inspected the x-ray, documented “[p]robable 4 calcaneal fracture,” and ordered “Orthopedic Surgery Consult.” Id. at 57. On May 13, 2019, 5 plaintiff was transferred to the Rio Cosumnes Correctional Center (RCCC). SUF ¶ 5. 6 Between May 10 and May 15, plaintiff submitted various kites, or inmate message 7 requests, and grievance forms noting her pain and requesting medical attention and 8 accommodations. See generally Medical Records; Journal, Merin Decl. Ex. G; Grievance Forms, 9 Merin Decl. Exs. H & I. She reported severe pain, discoloring in her foot, and increased swelling. 10 See, e.g., Medical Records at 49, 55. Medical staff who treated plaintiff recorded she had a 11 swollen and bruised foot, Medical Records at 49, and had “ortho surgery consult pending,” id. at 12 51. One doctor observed “significant swelling and diffuse dark ecchymosis2 throughout bottom 13 of foot, and upward,” and noted there were “mult discussions with CM” to discuss whether to 14 wait for referral to “ortho.” Id. at 46. 15 During this time, plaintiff requested an ADA (Americans with Disabilities Act) accessible 16 shower.3 Id. at 54. A nurse recorded plaintiff “slipped and fell during shower” and needs 17 “medical shower accommodation and Splint wrap due to safety reason[s].” Id. at 53. However, 18 when plaintiff asked an officer to use the medical shower, the officer informed her she could use 19 a shower chair in the regular shower instead. Journal at 191–92. Plaintiff also reported she fell 20 “twice because [she had] been told to hurry up,” Grievance Forms at 238, and was disciplined for 21 creating straps on her shower bag to help her carry her belongings, see id. at 239; Mollica Dep. 22 33:9–17, Merin Decl. Ex. F.4 2 “Ecchymosis is the medical term for the common bruise.” Brickey R. v. Saul, No. 19- 4953, 2020 WL 1914898, at *5 n.7 (C.D. Cal. Apr. 20, 2020) (quoting Understanding Ecchymosis, Healthline, https://www.healthline.com/ health/ecchymosis). 3 The court understands an ADA accessible shower to mean showers that are in compliance with the Americans with Disabilities Act. 4 The court cites to the deposition transcript pages for this deposition. 1 While plaintiff was in the County’s custody, defendant Tammy Morin was the medical 2 director for Correctional Health Services for County Department of Health Services. SUF ¶ 1; 3 Morin Dep. 11:11–16; 22:14–19.5 Her duties included organizing physician medical care for the 4 inmate patient population. Morin Dep. 16:17–22. She was plaintiff’s “authorizing provider,” 5 SDF ¶ 48; Medical Records at 68, and in her deposition, Dr. Morin recollected signing an order 6 for plaintiff “[t]o get a repair of the left calcaneal fracture.” Morin Dep. 28:15–29:7. 7 Defendant Nancy Gallagher, a nurse, was plaintiff’s case manager. SUF ¶ 7; Medical 8 Records at 91. Case managers help inmates obtain specialty care services. Morin Dep. 23:16–21, 9 24:9–23. As a case manager, Nurse Gallagher’s duties included facilitating an appointment 10 between plaintiff and an orthopedic specialist at San Joaquin General Hospital (SJGH). 11 Gallagher Dep. 15:13–19.6 Sacramento County has a contract with SJGH to “use their clinics like 12 orthopedics, and that’s where all of [their] patients go.” Id. 37:3–6. The County does not have 13 contracts with any other facility for orthopedic care. Id. 37:7–10. SJGH provides appointment 14 dates and coordinates with the case manager to schedule appointments. Morin Dep. 41:7–18. In 15 other words, the County cannot schedule patients for surgery unless SJGH provides 16 appointments. Id. 41:14–18; see Gallagher Dep. 23:6–25. Although Nurse Gallagher was 17 plaintiff’s case manager, she never saw plaintiff. Gallagher Dep. 21:14–15. However, she was 18 plaintiff’s “signing provider,” Medical Records at 68, and knew “Ms. Mollica was sitting almost 19 every single day in sick call or whatever and she was asking about [her medical treatment],” 20 Gallagher Dep. 29:14–20. 21 On May 15, 2019, Dr. Morin and Nurse Gallagher authorized plaintiff to be seen by the 22 Emergency Department at SJGH. See SUF ¶ 13, SDF ¶ 38; Medical Records at 44; Morin Dep. 23 30:1–6. At the hospital, plaintiff was x-rayed again, and the radiologist observed an impression 24 of a calcaneal fracture and soft tissue swelling. Medical Records at 73. A doctor noted plaintiff 5 For the Morin deposition, the court cites to transcript pages excerpted in Whitefleet Decl. Ex. B, ECF No. 79-3, and Merin Decl. Ex. C. 6 For the Gallagher deposition, the court cites to transcript pages excerpted in Whitefleet Decl. Ex. A, and Merin Decl. Ex. D. 1 “needs an orthopedic evaluation,” id. at 74, and observed “[l]arge ecchymosis and edematous7 2 foot,” id. at 75. The doctor instructed her to follow up with her orthopedic physician within one 3 week and with her primary care provider within three to five days. Id. at 75. Plaintiff testified 4 that the doctor at the hospital informed plaintiff she needed surgery “as soon as possible.” 5 Mollica Dep. 30:19–31:18. Nurse Gallagher noted the hospital recommended plaintiff see a 6 doctor the following week for surgical evaluation. Medical Records at 67, 71. 7 After returning from the hospital, plaintiff submitted additional kites, see, e.g., Medical 8 Records at 29–45, and grievance forms, see Grievance Forms at 225–27, 230. She continued to 9 experience severe pain, see, e.g., Journal at 196–211; Medical Records at 29–30, 34, 38, and 10 reported significant delays in receiving her pain medication, which exacerbated her pain, see 11 Grievance Forms at 227, 230; see also Medical Records at 30. In one of her grievance forms 12 dated May 23, 2019, plaintiff requested to speak “to the ADA officer8 as soon as possible” and 13 noted she had still not seen an orthopedic surgeon and had not received responses to her kites and 14 grievances. Grievance Forms at 230. 15 Finally on May 29, 2019, plaintiff was evaluated by an orthopedic surgeon who recorded 16 “[t]he patient will need surgery . . . Plan to do with surgery within 1 to 2 weeks.” Id. at 69. 17 Plaintiff continued to submit kites, see, e.g., Medical Records at 13–21, and grievance forms, see 18 Grievance Forms at 233–236. She also continued to experience severe pain. See, e.g., Journal at 19 211–16; Medical Records at 13–24. Plaintiff was released more than two weeks later on June 16, 20 2019, before obtaining surgery. SUF ¶ 20; Arrest Docs. at 11. The parties dispute whether 21 defendants in fact scheduled her surgery. SUF ¶ 16; compare Gallagher Dep. 32:14–18 7 “Edema is the medical term for swelling and it happens when small blood vessels leak fluid into nearby tissues.” Matuu v. Kijakazi, No. 20-00446, 2021 WL 6062872, at *2 (D. Haw. Dec. 22, 2021). 8 The court assumes an ADA officer is someone who ensures compliance with the Americans with Disabilities Act. Cf. Pierce v. County of Orange, 761 F. Supp. 2d 915, 957 (C.D. Cal. 2011) (noting County defendant must provide training for its “ADA compliance officers”). 1 (testifying it was her understanding surgery was scheduled), with Emails at 249, Merin Decl. Ex. 2 K (emailing a response that plaintiff needs surgery before her release).9 3 The day of her release, plaintiff sought emergency medical attention at UC Davis Medical 4 Center. See generally Post-Release Medical Records, Merin Decl. Ex. L. Her medical record 5 notes she had an “[a]cute injury with swelling/deformity,” id. at 261, and the emergency room 6 doctor recorded plaintiff needed surgery, see id. at 265. Plaintiff testifies the doctor told her she 7 needed surgery “as soon as possible.” Mollica Dep. 37:6–13. On June 27, 2019, a doctor 8 referred plaintiff to orthopedic surgery, and noted the timeframe was “urgent.” Post-Release 9 Medical Records at 271. Plaintiff sought out other orthopedic surgeons who were not affiliated 10 with the UC Davis Medical Center, Mollica Dep. 38:1–10, and ultimately did have surgery, id. 11 40:2–5; SDF ¶ 95. The record does not specify on which date the surgery was performed. 12 Plaintiff was unable to walk without the assistance of crutches for four to six months, Mollica 13 Dep. 45:22–46:3, could not walk without a limp for at least another a year after, still occasionally 14 has a limp, and has limited range of motion in her foot. Id. 46:8–12, 50:7–52:5. Her surgeon 15 informed plaintiff it would take six months to a year to rehabilitate her foot, id. 46:13–15, and 16 told her the rehabilitation time and loss of range of motion in her foot would have been less if she 17 had had surgery earlier, id. 40:13–21, 50:3–16. 18 Plaintiff brings this action against defendants Sacramento County, Sacramento County 19 Sheriff’s Department, Sheriff Scott Jones, Doctor Tammy Morin and Nurse Nancy Gallagher. 20 See FAC ¶¶ 6–10. Plaintiff brings the following eight claims: 21 1) Violation of the right to medical care under the Eighth Amendment against all 22 defendants; 23 2) Violation of the Rehabilitation Act against the County of Sacramento and Sacramento 24 County Sheriff’s Department; 25 3) Violation of the Americans with Disabilities Act (ADA) against the County of 26 Sacramento and Sacramento County Sheriff’s Department; 9 Ms. Gallagher’s email response is non-hearsay under Federal Rule of Evidence 801(d)(2) as an opposing party statement. 1 4) Violation of the right to medical care and treatment under California Government 2 Code section 845.6 against the County of Sacramento, Sacramento County Sheriff’s 3 Department, Dr. Morin and Nurse Gallagher; 4 5) Violation of the Bane Act against all defendants; 5 6) Intentional infliction of emotional distress against Sheriff Jones, Dr. Morin and Nurse 6 Gallagher; 7 7) Negligence against Sheriff Jones, Dr. Morin and Nurse Gallagher; and 8 8) Professional and medical negligence against Dr. Morin and Nurse Gallagher. 9 See generally id. Plaintiff voluntarily dismissed her Eighth Amendment claim against Sheriff 10 Jones and professional negligence claims against Doctor Morin and Nurse Gallagher. See Joint 11 Status Report at 2, ECF No. 77; Opp’n at 16, 26, ECF No. 80. Defendants move for summary 12 judgment on all the claims. MSJ, ECF No. 79-1. Plaintiff opposes, Opp’n, and defendants have 13 replied, Reply, ECF No. 85. The court held a hearing on this matter on March 31, 2023. Mins. 14 Mot. Hr’g, ECF No. 88. Mark Merin and Paul Masuhara appeared for plaintiff. John Whitefleet 15 appeared for defendants. Id. 16 IV. LEGAL STANDARD 17 A court may grant summary judgment if there is “no genuine dispute as to any material 18 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 19 “threshold inquiry” is whether “there are any genuine factual issues that properly can be resolved 20 only by a finder of fact because they may reasonably be resolved in favor of either party.” 21 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In deciding a motion for summary 22 judgment, the court draws all inferences and views all evidence in the light most favorable to the 23 nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 24 (1986). 25 The moving party bears the initial burden of showing the district court “there is an 26 absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 325. 27 Therefore, the moving party “always bears the initial responsibility of informing the district court 28 of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers 1 to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes 2 demonstrate the absence of a genuine issue of material fact.” Id. at 323; see Nissan Fire & 3 Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (“[T]o carry its ultimate 4 burden of persuasion on the motion, the moving party must persuade the court that there is no 5 genuine issue of material fact.”). “It is not enough to move for summary judgment without 6 supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence 7 to prove his case.” Celotex Corp., 477 U.S. at 328 (White, J., concurring); see also id. at 332 8 (Brennan, J., dissenting) (“Plainly, a conclusory assertion that the nonmoving party has no 9 evidence is insufficient.”). 10 The burden then shifts to the nonmoving party, which “must establish that there is a 11 genuine issue of material fact . . . .” Matsushita Elec. Indus. Co., 475 U.S. at 585. In carrying 12 their burdens, both parties must “cit[e] to particular parts of materials in the record . . . ; or 13 show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or 14 that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 15 56(c)(1). Additionally, in resolving the merits of a party’s motion for summary judgment, the 16 court’s role is not to evaluate the evidence and decide the truth of the matter, but to determine 17 whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. 18 V. ANALYSIS 19 A. Right to Medical Care 20 1. The Eighth Amendment Applies 21 Plaintiff claims defendants County of Sacramento, Sacramento County Sheriff’s 22 Department, Sheriff Jones,10 Dr. Morin and Nurse Gallagher violated her right to medical care. 23 FAC ¶ 70. Claims about medical care arise under the Fourteenth Amendment’s Due Process 24 Clause for pretrial detainees and under the Eighth Amendment Cruel and Unusual Punishment 25 Clause for convicted prisoners. See Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 26 2018). At hearing, the parties disagreed on whether plaintiff was a pretrial detainee at the 10 Plaintiff voluntarily dismissed her section 1983 deliberate indifference claim against Sheriff Jones. See Joint Status Report at 2; Opp’n at 16, 26. 1 relevant time. Plaintiff argues she was a pretrial detainee and the Fourteenth Amendment applies. 2 Opp’n at 14. Defendants argue the complaint does not state a Fourteenth Amendment claim, 3 Reply at 2, and at hearing, argued plaintiff was a convicted prisoner. Drawing all inferences in 4 the light most favorable to plaintiff, the court finds the Eighth Amendment applies. 5 Plaintiff was in custody following her arrest for violating the terms and conditions of the 6 Sacramento County Sheriff’s Department’s work release program. FAC ¶ 13; see SDF ¶ 1. A 7 work release program permits participants to complete their sentence through participation in the 8 program in lieu of confinement. See In re Barber, 15 Cal. App. 5th 368, 373 (2017). Under 9 California Penal Code §§ 4024.2(c)(1) and 4024.3(c)(1), which authorize counties to establish 10 voluntary or mandatory work release programs, participants in such programs must sign an 11 agreement (if voluntary under § 4024.2) or acknowledgement (if mandatory under § 4024.3) “that 12 the sheriff may immediately retake the person into custody to serve the balance of the 13 [participant’s] sentence” if the person violates certain conditions. Cal. Penal Code §§ 4024.2, 14 4042.3. 15 Ninth Circuit caselaw suggests an individual in custody for violating the terms of 16 probation or parole is considered a pre-trial detainee if she has not had a hearing on the violation. 17 See Sandoval v. County of San Diego, 985 F.3d 657, 662 (9th Cir.), cert. denied sub nom. San 18 Diego County v. Sandoval, 211 L. Ed. 2d 400 (2021) (applying Fourteenth Amendment to 19 plaintiff who was in custody for a probation violation); Hanington v. Multnomah County, 20 593 F. Supp. 3d 1022, 1032 (D. Or. 2022) (collecting cases and finding “individuals arrested for 21 suspected parole violations are pretrial detainees subject to the Fourteenth Amendment”); but see 22 Flores v. Mesenbourg, No. 95-17241, 116 F.3d 483, 1997 WL 303277, at *1 (9th Cir. June 2, 23 1997) (table) (Eighth Amendment applied to convicted prisoner incarcerated for parole violation 24 because “[h]is original conviction is the authority under which he was confined after his parole 25 violation”). Here, plaintiff does not plead or argue she was in custody for violating the terms of 26 probation or parole. See generally FAC; Opp’n. The record does not suggest she was awaiting a 27 hearing. Rather, she alleges she was incarcerated “for failing to comply with the terms and 28 conditions” of the work release program. FAC ¶ 13. This means the sheriff could “immediately 1 retake [her] into custody to serve the balance of [her] sentence.” See Cal. Penal Code §§ 4024.2, 2 4042.3. Because plaintiff was still serving the remainder of her sentence, and was not awaiting an 3 “adjudication of guilt,” Bell v. Wolfish, 441 U.S. 520, 535 (1979), plaintiff was a prisoner, see 4 People v. Cortez, 24 Cal. App. 4th 510, 513 (1994) (noting work release programs are “for 5 persons who are committed to but not confined in jail”). Accordingly, the Eighth Amendment 6 applies. 7 2. Deliberate Indifference under the Eighth Amendment 8 “The government has an obligation under the Eighth Amendment to provide medical care 9 for those whom it punishes by incarceration.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 10 2000). “[D]eliberate indifference to serious medical needs of prisoners constitutes the 11 unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. 12 Gamble, 429 U.S. 97, 104 (1976) (internal citation and marks omitted). Deliberate indifference 13 can be manifested by intentional delay in medical care and “[r]egardless of how evidenced, 14 deliberate indifference to a prisoner’s serious illness or injury states a cause of action under 15 § 1983.” Id. at 105. In the Ninth Circuit, to prevail on a deliberate indifference claim under the 16 Eighth Amendment, a plaintiff must show 1) “a serious medical need” and 2) “the defendant’s 17 response to the need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 18 2006). 19 Defendants do not argue plaintiff did not have serious medical needs. MSJ at 3–5. 20 Accordingly, the court moves to the next prong: whether a reasonable jury could find defendants 21 were deliberately indifferent to plaintiff’s serious medical needs. This second prong is satisfied 22 by showing “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical 23 need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096. “[A] prison official will 24 be liable for disregarding an inmate’s serious medical needs only if he was both ‘aware of facts 25 from which the inference could be drawn that a substantial risk of serious harm exists’ and 26 actually ‘dr[e]w the inference.’” Sandoval, 985 F.3d at 667–68 (quoting Peralta v. Dillard, 27 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc)). Deliberate indifference “may be manifested in 28 two ways.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). “It may appear when 1 prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown 2 by the way in which prison physicians provide medical care.” Id. 3 The court finds there is a genuine dispute whether defendants were deliberately indifferent 4 to plaintiff’s serious medical needs by delaying necessary orthopedic care and treatment. The 5 morning after her injury, on May 9, 2019, a doctor reviewed plaintiff’s x-ray, noted a probable 6 calcaneal fracture and ordered an orthopedic surgery consult. Medical Records at 57. However, 7 plaintiff did not see an orthopedic doctor for surgery consultation and defendants did not 8 authorize plaintiff to be seen by the emergency department until a week later. See id. at 44, 74. 9 The doctor at the emergency department told plaintiff she needed to get surgery “as soon as 10 possible.” Mollica Dep. 30:23–25. However, plaintiff did not see an orthopedic surgeon for 11 consultation until May 29, twenty-one days after her injury. Medical Records at 69. During this 12 time, plaintiff made known her pain and needs, including an ADA accessible shower and pain 13 medication, every day through kites, grievance forms and by talking to guards. See generally id.; 14 Journal; Grievance Forms. The medical records show plaintiff needed pain medication to manage 15 her pain and her foot was bruised and swollen for weeks. See generally Medical Records. The 16 parties also dispute whether surgery was in fact ever scheduled. SUF ¶ 16. Plaintiff did not get 17 surgery prior to her release, and upon release, an ER doctor told her she needed surgery “as soon 18 as possible.” Mollica Dep. 37:9–13; see Post-Release Medical Records at 265. Later, a doctor 19 ordered a referral to orthopedic surgery and labelled it as “urgent.” See Post-Release Medical 20 Records at 271. Reasonable jurors could find that delaying necessary orthopedic care, including 21 surgery, rose to the level of deliberate indifference. See Estelle, 429 U.S. at 103 (“[F]ailure [to 22 treat medical needs] may actually produce physical torture [or] may result in pain and suffering 23 which no one suggests would serve any penological purpose.” (internal marks and citation 24 omitted)). 25 In two short paragraphs, defendants argue summary judgment is warranted on plaintiff’s 26 Eighth Amendment claim against Dr. Morin and Nurse Gallagher because plaintiff cannot prove 27 Dr. Morin had knowledge of plaintiff’s circumstances or had actual contact with her. MSJ at 4. 28 Further, they claim she cannot prove either Dr. Morin or Nurse Gallagher was aware of any 1 medical necessity to schedule orthopedic surgery consult earlier or to schedule immediate 2 surgery. Id. Defendants also argue Nurse Gallagher “cannot dictate when an orthopedic surgeon 3 is available at [SJGH].” Id. Their arguments are unavailing. 4 As a preliminary matter, the parties dispute whether plaintiff needed to consult an 5 orthopedic doctor for surgery consultation and have surgery immediately. Compare MSJ at 4, 6 with Opp’n at 15–16; see SDF ¶¶ 16, 17, 21, 28, 31–32, 42. The parties also dispute whether 7 defendants knew of plaintiff’s circumstances. Compare MSJ at 4, with Opp’n at 15–16; see SUF 8 ¶¶ 9, 13–14; SDF ¶¶ 38, 105. 9 During the relevant time, Dr. Morin organized physician medical care for inmate patients. 10 Morin Dep. 16:17–22. While plaintiff appears to concede Dr. Morin did not read any of 11 plaintiff’s kites and grievances, Opp’n at 16, Dr. Morin was plaintiff’s “authorizing provider” and 12 was the one who authorized plaintiff to go to the Emergency Department at SJGH, a week after 13 her injury, SDF ¶ 48; Medical Records at 68; Morin Dep. 30:1–8. In her deposition, Dr. Morin 14 also recollected signing an order for plaintiff “[t]o get a repair of the left calcaneal fracture.” 15 Morin Dep. 28:15–29:7. Viewing the evidence in the light most favorable to plaintiff, the court 16 concludes a reasonable juror could find Dr. Morin had knowledge of plaintiff’s serious medical 17 needs. See Jett, 439 F.3d at 1098 (concluding plaintiff was “entitled to an inference that 18 [defendant] was aware of the filed grievance, medical slips, and aftercare instructions in his 19 medical record”); cf. Peralta, 744 F.3d at 1087 (signing plaintiff’s second-level appeal did not 20 demonstrate knowledge of substantial risk of serious harm because “[a]lthough he supervised the 21 dental department, [defendant] isn’t a dentist, and he didn’t independently review [plaintiff’s] 22 claims or read his chart before signing off on the second-level appeal”). 23 Nurse Gallagher was plaintiff’s case manager, SUF ¶ 7; Medical Records at 91, and 24 “signing provider,” SDF ¶ 48; Medical Records at 68. Her duties included helping inmates 25 including plaintiff obtain specialty care services, Morin Dep. 23:16–21, 24:9–23, and facilitating 26 an appointment between plaintiff and an orthopedic specialist at SJGH, Gallagher Dep. 15:13–19. 27 Nurse Gallagher sent an email noting plaintiff needed surgery before her release, Emails at 249, 28 and testified she knew “Ms. Mollica was sitting almost every single day in sick call or whatever 1 and she was asking about [her medical treatment].” Gallagher Dep. 29:16–20. Here, whether 2 Nurse Gallagher had knowledge of plaintiff’s serious medical needs so as to satisfy the legal 3 standard is for a jury to decide. 4 Viewing the facts in the light most favorable to plaintiff, the court finds a reasonable 5 jury could find Dr. Morin and Nurse Gallagher, as the medical director who was the authorizing 6 provider and as plaintiff’s case manager who was the signing provider, respectively, were aware 7 of plaintiff’s serious medical need and were deliberately indifferent to that need. See Jett, 439 8 F.3d at 1098 (“As prison administrators, [defendants] are liable for deliberate indifference when 9 they knowingly fail to respond to an inmate’s requests for help.”). While incarcerated, plaintiff 10 was in the care of defendants. She could not schedule her own appointments. She made her 11 severe pain and needs known every day. A jury could find the medical records, journal entries 12 and grievance forms support this narrative. Defendants argue they had no control over when 13 SJGH had available appointments. MSJ at 4. However, defendants could have consulted other 14 hospitals or figured out an alternative way to ensure plaintiff, who was in their custody and care, 15 received the orthopedic care and surgery she needed. The fact that the County contracts with only 16 one hospital does not excuse a constitutional violation. See Hudson v. McMillian, 503 U.S. 1, 6 17 (1992) (“[T]he State’s responsibility to provide inmates with medical care ordinarily does not 18 conflict with competing administrative concerns.”). Here, the court is unable to conclude as a 19 matter of law that defendants were not deliberately indifferent to plaintiff’s serious medical 20 needs. 21 3. Qualified Immunity 22 Alternatively, defendants argue they are entitled to qualified immunity. “A government 23 official’s entitlement to qualified immunity depends on (1) whether there has been a violation of a 24 constitutional right; and (2) whether that right was clearly established at the time of the officer’s 25 alleged misconduct.” S.R. Nehad v. Browder, 929 F.3d 1125, 1140 (9th Cir. 2019) (citation and 26 marks omitted); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). “[U]nder either prong, courts 27 may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan 28 v. Cotton, 572 U.S. 650, 656 (2014) (per curium). Courts are “permitted to exercise their sound 1 discretion in deciding which of the two prongs of the qualified immunity analysis should be 2 addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 3 555 U.S. 223, 236 (2009). 4 As discussed above the court is unable to conclude as a matter of law that Dr. Morin and 5 Nurse Gallagher did not violate plaintiff’s Eighth Amendment rights. Thus, for the purpose of 6 this order, the court assumes plaintiff’s rights were violated. Accordingly, the court resolves the 7 second prong: whether there is clearly established law of which defendants should have been 8 aware. “‘Clearly established’ means that, at the time of the officer’s conduct, the law was 9 ‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’ is 10 unlawful.” D.C. v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 11 741 (2011)). The “clearly established law” must be defined with a “high ‘degree of specificity.’” 12 Id. at 590 (quoting Mullenix v. Luna, 557 U.S. 7, 13 (2015)). The court must match the 13 “particular circumstances” and “context” to controlling law. Id. “[F]or a right to be clearly 14 established, existing precedent must have placed the statutory or constitutional question beyond 15 debate,” and must “squarely govern[] the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 16 1148, 1152–53 (2018) (per curiam) (internal marks and citation omitted). 17 Defendants argue there is no existing precedent that a delay in receiving needed surgery 18 constitutes deliberate indifference “particularly where the outside contractor . . . must provide its 19 availability for the surgery.” MSJ at 7. However, the law has been clearly established for some 20 time, that “deny[ing], delay[ing] or intentionally interfere[ing] with medical treatment” violates 21 the Eighth Amendment. Hutchinson, 838 F.2d at 394; see Hunt v. Dental Dep’t, 865 F.2d 198, 22 201 (9th Cir. 1989) (finding deliberate indifference when officials delayed dental care). The 23 Supreme Court also has concluded “deliberate indifference to serious medical needs of prisoners 24 constitutes the ‘unnecessary and wanton infliction of pain,’ . . . whether the indifference is 25 manifested by prison doctors in their response to the prisoner’s needs or by prison guards in 26 intentionally denying or delaying access to medical care . . . .” Estelle, 429 U.S. 97 at 104–05. 27 Moreover, in 2006, well before plaintiff’s injury, the Ninth Circuit held delaying 28 necessary medical care because of administrative reasons “unrelated to the medical needs of the 1 prisoner” is akin to deliberate indifference. See Jett, 439 F.3d at 1097; see also Padilla v. Beard, 2 No. 14-1118, 2017 WL 1253874, at *20 (E.D. Cal. Jan. 27, 2017) (“[B]y 1992 it was clearly 3 established that a prison official could be deliberately indifferent in declining to choose a certain 4 course of medical treatment for reasons unrelated to the medical needs of the prisoner.”). In Jett, 5 the plaintiff alleged defendants were deliberately indifferent to his need to have his fractured 6 thumb set and cast. 439 F.3d at 1093. The plaintiff informed the defendant doctor he was in pain 7 and needed orthopedic care. Id. at 1094. In explaining why the plaintiff was not returned to the 8 non-contracted hospital where he initially received emergency treatment for a follow-up visit, or 9 why there was a delay in plaintiff seeing an orthopedist, the defendant stated the prison “generally 10 sends patients to . . . its contracted facility.” Id. at 1097. The Ninth Circuit found that if the 11 defendant “decided not to request an orthopedic consultation merely because [the plaintiff] could 12 not go back to . . . , a non-contracted facility,” such conduct is “akin to cases finding deliberate 13 indifference where prison officials and doctors deliberately ignore[ ] the express orders of a 14 prisoner’s prior physician for reasons unrelated to the medical needs of the prisoner.” Id. 15 (quoting Hamilton v. Endell, 981 F.2d 1062, 1066–67 (9th Cir. 1992)). 16 The facts of this case are very similar to Jett. Here, plaintiff requested orthopedic care 17 multiple times and informed prison officials of her pain. The court has found a genuine dispute 18 whether defendants were aware of plaintiff’s serious medical needs. Defendants argue they 19 cannot be liable because an outside contractor “must provide its availability for the surgery.” 20 MSJ at 7. If the jury were to find defendants knew of her injury and delayed plaintiff’s 21 orthopedic surgery consultation and actual surgery merely because SJGH did not have available 22 appointments, or for other reasons unrelated to her medical needs, that would constitute deliberate 23 indifference under Jett. Because “there are disputed factual issues that are necessary to a 24 qualified immunity decision, th[o]se issues must first be determined by the jury before the court 25 can rule on qualified immunity.” See S.R. Nehad, 929 F.3d at 1140 (quoting Morales v. Fry, 26 873 F.3d 817, 824 (9th Cir. 2017)). Accordingly, the court declines to decide the issue of 27 qualified immunity at this time. Defendants may renew their qualified immunity defense after the 28 jury has determined the relevant facts. 1 4. Monell Liability 2 Defendants also move for summary judgment on plaintiff’s claims against the County and 3 Sheriff’s Department. To prevail on a claim under Monell, the plaintiff must ultimately show: 4 “(1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the 5 municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's 6 constitutional right; and, (4) that the policy is the moving force behind the constitutional 7 violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citation omitted). 8 The plaintiff must demonstrate this policy or custom “reflects deliberate indifference to the 9 constitutional rights of [the municipality’s] inhabitants,” and there must be a “direct causal link 10 between a municipal policy or custom and the alleged constitutional deprivation.” Castro v. 11 County of Los Angeles, 833 F.3d 1060, 1073, 1075 (9th Cir. 2016) (quoting City of Canton v. 12 Harris, 489 U.S. 378, 385, 392 (1989)). The Ninth Circuit recognizes four theories of Monell 13 liability: (1) an official policy; (2) ratification by a final policymaker; (3) a failure to train; 14 supervise, or discipline; or (4) a pervasive custom or practice. Horton by Horton v. City of Santa 15 Maria, 915 F.3d 592, 602–03 (9th Cir. 2019). 16 Without identifying undisputed facts in support of their position, defendants argue in one 17 sentence plaintiff “cannot prove that any policy was the moving force behind any claimed Eighth 18 Amendment violation, nor any custom or practice of inaction in terms of scheduling surgeries 19 with outside providers.” MSJ at 7. Defendants provide the court with the legal standard and cite 20 various cases without tying them to the facts underlying this case. See id. at 7–8. Defendants’ 21 conclusory arguments, without more, are insufficient to establish an absence of a genuine issue of 22 material fact. See Celotex Corp., 477 U.S. at 328 (White, J., concurring). Accordingly, summary 23 judgment can be denied on this ground alone. 24 Even if the court were to find defendants met their initial burden, plaintiff has 25 demonstrated a triable issue of fact regarding the existence of an official policy. Local 26 governments may be liable “when implementation of its official policies or established customs 27 inflicts the constitutional injury.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 28 708 (1978) (Powell, J., concurring). As defendants themselves acknowledge, SJGH must provide 1 its availability for orthopedic surgeries for any procedure there, because the County does not have 2 its own facilities or expertise to conduct such a surgery. MSJ at 7. The County contracts with 3 only one hospital, SJGH. Gallagher Dep. 37:3–10. Accordingly, if SJGH does not have available 4 appointments for the inmates in the County, inmates’ medical care will be delayed for reasons 5 unrelated to their medical needs. See, e.g., Inmate Grievances at 14, Merin. Decl. Ex. O, ECF 6 No. 89 (noting at time of submitting grievance form, inmate patient was still waiting for surgery 7 and learned “U.C. Davis will not perform the surgery because RCCC is not contracted with U.C. 8 Davis”); id. at 71 (explaining “medical staff have no control over outside the facility 9 appointment” in response to inmate grievance form stating a doctor informed the inmate of a need 10 for surgery). A reasonable jury could find the official policy of having only one contracted 11 hospital where inmate patients can receive certain medical treatments, such as orthopedic surgery 12 and other specialized treatments, reflects deliberate indifference to inmates’ medical needs and is 13 the moving force behind the delays in medical care, thus violating prisoners’ Eighth Amendment 14 rights. Cf. Peralta, 744 F.3d at 1084 (“A chronic shortage of resources may well amount to a 15 policy or practice for which monetary relief may be available under Monell.”). 16 In addition to an official policy, plaintiff provides evidence of a custom or practice of 17 delaying medical care. The Supreme Court has held “a plaintiff may be able to prove the 18 existence of a widespread practice that, although not authorized by written law or express 19 municipal policy, is ‘so permanent and well settled as to constitute a custom or usage with the 20 force of law.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. 21 Kress & Co., 398 U.S. 144, 167–68 (1970)) (internal marks omitted). A few “isolated or sporadic 22 incidents” are not enough to prove a city has an unconstitutional custom or practice. Trevino v. 23 Gates, 99 F.3d 911, 918 (9th Cir. 1996). A practice or custom must have “sufficient duration, 24 frequency and consistency” that it has “become a traditional method of carrying out policy.” Id. 25 A “policy of inaction” can amount to an unconstitutional policy. See Connick v. Thompson, 26 563 U.S. 51, 61 (2011). The pattern of incidents must reflect “similar constitutional violations.” 27 Id. at 62. 1 Here, plaintiff has pointed to a pattern of similar constitutional violations reflecting 2 deliberate indifference to medical needs through delayed surgeries and orthopedic surgery 3 consultations. See generally Inmate Grievances (showing multiple grievances noting delay in 4 receiving orthopedic surgery and consultation). Plaintiff also has provided a consent decree in 5 which a court has ordered defendants to provide constitutional medical care. Consent Decree, 6 Merin Decl. Ex. Q.11 According to the second monitoring report required by the consent decree, 7 there was evidence that the Sacramento County Jail, including the Main Jail and RCCC, did not 8 provide inmate patients timely access to care for serious medical needs. Monitoring Report at 9 494, Merin Decl. Ex. R. Among other things, the report found specialty care was “often delayed 10 even when available in the local community.” Id. at 515. The reported delays included when 11 orthopedic surgery was required. See id. (providing example of patient who “saw an outside 12 orthopedic surgeon” a month after her injury, despite having a “type of fracture [that] often 13 requires surgical repair”). There is sufficient evidence supporting plaintiff’s case such that there 14 is a genuine dispute whether the County and Sheriff’s Department maintain a custom or practice 15 of delaying orthopedic care. The court denies summary judgment as to this claim. Because it 16 denies summary judgment, the court declines to address plaintiff’s arguments regarding the other 17 theories of Monell liability. See Quinto-Collins v. City of Antioch, No. 21-06094, 2022 WL 18 18574, at *2 (N.D. Cal. Jan. 3, 2022) (“In the context of Monell, the different theories of liability . 19 . . are best understood . . . as different arguments in support of a single claim.”). To the extent 20 plaintiff wishes to continue to rely on those theories at trial, the parties may address those theories 21 by way of motions in limine prior to trial. See Perkins v. City of Modesto, No. 19-00126, 2022 11 Plaintiff’s claims for damages are not precluded by the consent decree. The parties’ joint motion for approval of the class action settlement leading to the decree states “the class and disability subclass sought only declaratory and injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2), and the settlement does not bar class members from pursuing individual damage claims.” Joint Motion, Mays v. County of Sacramento, No. 18-02081 (E.D. Cal. Nov. 12, 2020), ECF No. 102. The court in Mays granted the joint motion. Order, Mays v. County of Sacramento No. 18-02081 (E.D. Cal. Jan. 13, 2020), ECF No. 110. The court takes judicial notice of the documents on file in Mays. See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 1 WL 297101, at *18 n.16, 20 n.17 (E.D. Cal. Feb. 1, 2022) (declining to address plaintiff’s 2 additional theories of Monell liability and reserving question for motions in limine). 3 B. Americans with Disabilities Act (ADA) and Rehabilitation Act 4 Plaintiff alleges defendants County of Sacramento and Sacramento County Sheriff’s 5 Department violated the ADA and the Rehabilitation Act. FAC ¶¶ 76, 83. Title II of the ADA 6 provides: “[N]o qualified individual with a disability shall, by reason of such disability, be 7 excluded from participation in or be denied the benefits of the services, programs, or activities of 8 a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 9 504 of the Rehabilitation Act provides: “No otherwise qualified individual with a disability . . . 10 shall, solely by reason of her or his disability, be excluded from the participation in, be denied the 11 benefits of, or be subjected to discrimination under any program or activity receiving Federal 12 financial assistance.” 29 U.S.C. § 794. Given their similarity, the court treats the two statutory 13 schemes as one and evaluates them under a single framework. See Zukle v. Regents of Univ. of 14 Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999). 15 Under the dual ADA and Rehabilitation Act analysis, a plaintiff must show: “(1) she is a 16 qualified individual with a disability; (2) she was excluded from participation in or otherwise 17 discriminated against with regard to a public entity’s services, programs, or activities, and 18 (3) such exclusion or discrimination was by reason of her disability.” Lovell v. Chandler, 303 19 F.3d 1039, 1052 (9th Cir. 2002). 20 Defendants argue plaintiff cannot establish she had a disability because a “broken foot is 21 an inherently temporary condition.” MSJ at 10. The court finds this argument unpersuasive. 22 Under both the ADA and the Rehabilitation Act, “[t]he term ‘disability’ [includes] a physical . . . 23 impairment that substantially limits one or more major life activities of such individual . . . .” 24 42 U.S.C. § 12102(1); see also 29 U.S.C. § 705(9)(A)–(B) (including definition of terms under 25 Rehabilitation Act and specifically referencing ADA definition). Major life activities include 26 walking, standing, caring for oneself, performing manual tasks and working. 42 U.S.C. 27 § 12012(2)(A). The ADA Amendment Act of 2008 established “[r]ules of construction regarding 28 the definition of disability,” including that the Act must be “construed in favor of broad coverage 1 . . . to the maximum extent permitted by the terms of [the ADA].” Id. § 12102(4)(A). In 2 addition, “[a]n impairment that is episodic or in remission is a disability if it would substantially 3 limit a major life activity when active.” Id. § 12102(4)(D). There is no “categorical temporal 4 limitation.” Shields v. Credit One Bank, N.A., 32 F.4th 1218, 1225 (9th Cir. 2022). Here, 5 plaintiff could not walk or stand without the assistance of crutches while she was incarcerated. 6 Medical Records at 17–59. A reasonable juror could find plaintiff had a disability while she was 7 in the County’s custody. 8 Second, defendants argue plaintiff cannot establish she lacked “access to any purported 9 program or activity” due to her disability. MSJ at 10. Defendants focus on the delay in surgery 10 and access to medical care. Id. Defendants are correct “inadequate medical care does not provide 11 a basis for an ADA claim unless medical services are withheld by reason of a disability.” Marlor 12 v.Madison County, 50 F. App’x 872, 873 (9th Cir. 2002) (unpublished) (emphasis in original). 13 However, under the ADA, prohibited discrimination includes the failure to reasonably 14 accommodate individuals with disabilities. See 42 U.S.C. § 12182 (b)(2)(A)(ii). “[A]lleged 15 deliberate refusal of prison officials to accommodate [plaintiff’s] disability-related needs in such 16 fundamentals as . . . medical care, and virtually all other prison programs constitute[] exclusion 17 from participation in or . . . denial of the benefits of the prison’s services, programs, or 18 activities.” United States v. Georgia, 546 U.S. 151, 157 (internal marks and citation omitted). 19 Here, defendants do not address the issue of reasonable accommodations. At hearing, 20 defendants’ counsel admitted he was not sure what accommodation was required other than 21 honoring plaintiff’s request for a lower bunk prior to her injury. See SDF ¶¶ 8–9. On this record, 22 defendants have not met their initial burden under the summary judgment standard to show the 23 absence of evidence supporting plaintiff’s case. See Mark H. v. Lemahieu, 513 F.3d 922, 938 24 (9th Cir. 2008) (“[A] public entity can be liable for damages under § 504 if it intentionally or with 25 deliberate indifference fails to provide meaningful access or reasonable accommodation to 26 disabled persons.”). Summary judgment can be denied on this ground alone. 27 Moreover, plaintiff argues she was denied reasonable accommodations despite making 28 multiple requests. See Opp’n at 22. For example, officials disciplined plaintiff for creating a 1 makeshift bag to carry her belongings rather than providing some other form of accommodation 2 during her transfer to RCCC. See SDF ¶¶ 25–26. Plaintiff also avers she fell “twice because [she 3 had] been told to hurry up,” Grievance Forms at 238, suggesting a lack of accommodation. 4 Despite a nurse’s confirming plaintiff’s need for “medical shower accommodation,” Medical 5 Records at 53, an officer told plaintiff to use a regular shower, Journal at 191. Plaintiff also 6 reported several instances of pain medication denials or delays, despite her requests. See, e.g., 7 Grievance Forms at 227, 230; Medical Records at 30. The court finds there is a triable issue of 8 fact regarding whether plaintiff had a disability and whether defendants discriminated against her 9 by failing to provide reasonable accommodations. The court denies summary judgment as to the 10 ADA and Rehabilitation Act claims. 11 C. Right to Medical Care under California Government Code § 845.6 12 Plaintiff claims defendants County of Sacramento, Sacramento County Sheriff’s 13 Department, Dr. Morin and Nurse Gallagher violated her right to medical care under California 14 Government Code section 845.6. FAC ¶ 90. Under section 845.6, public entities and their 15 employees are directly liable if they know or have reason to know a “prisoner is in need of 16 immediate medical care” but do not “take reasonable action to summon such medical care.” Cal. 17 Gov’t Code § 845.6. 18 Defendants argue plaintiff’s claim under this section fails because plaintiff was already 19 under the observation of medical staff. MSJ at 11. The Ninth Circuit has held “the term 20 ‘immediate medical care’ as used in the statute includes both diagnosis and treatment . . . .” Jett, 21 439 F.3d at 1099. Therefore, “the need for ‘immediate medical care’ can arise more than once in 22 relation to an ongoing serious medical condition.” Id. However, the Second District Court of 23 Appeal of California rejected Jett’s interpretation of section 845.6. See Castaneda v. Dep’t of 24 Corr. & Rehab., 212 Cal. App. 4th 1051, 1074 (2013). It found “the Ninth Circuit’s application 25 of section 845.6 [in Jett] ignores California authority interpreting that statute.” Id. California 26 courts have held that a defendant is summoned to provide treatment, the failure to ensure a proper 27 diagnosis, monitor progress or prescribe necessary medication all “are issues relating to the 1 manner in which medical care is provided, and do not subject the State to liability under section 2 845.6 for failure to summon.” Id. (emphases in original). 3 The court finds Castaneda controls. See Briceno v. Scribner, 555 F.3d 1069, 1080 (9th 4 Cir. 2009) (“In the absence of a pronouncement by the highest court of a state, the federal courts 5 must follow the decision of the intermediate appellate courts of the state unless there is 6 convincing evidence that the highest court of the state would decide differently.”); see also Scalia 7 v.County of Kern, 308 F. Supp. 3d 1064, 1087 (E.D. Cal. 2018) (declining to follow Jett in light 8 of Castaneda). At hearing, plaintiff argued the Ninth Circuit’s decision in Horton, which 9 followed Castaneda, reaffirmed the primacy of Jett. However, in Horton, the Circuit held “Jett 10 thus makes clear that ‘immediate’ does not signify urgent; rather, the obligation to summon 11 immediate medical care requires that the public employee act in a ‘timely’ manner, so as to 12 prevent further injury.” Horton by Horton, 915 F.3d at 608. There, the question was whether the 13 officer failed to summon immediate medical care for a suicidal plaintiff who suffered severe brain 14 damage as a result of an attempted suicide in a temporary holding cell. Id. at 597–98, 607–08. 15 The Ninth Circuit did not address whether the obligation to summon medical care can arise again 16 for the same injury, even after officials initially summoned care. See id. at 607–08. Additionally, 17 in a recent unpublished decision, the Ninth Circuit cited Castaneda in finding the plaintiff’s 18 arguments implicated correctional staff’s decisions regarding plaintiff’s care and “not a failure to 19 summon care.” Vivanco v. Cal. Dep’t of Corr. & Rehab., 817 F. App’x 492, 493 (9th Cir. 2020) 20 (unpublished). In Vivanco, the plaintiff alleged officers failed to monitor and “make their daily 21 rounds to check on [the decedent’s] conditions.” Vivanco v. California Dep’t of Corr. & Rehab., 22 17-00434, 2019 WL 2764397, at *9 (E.D. Cal. July 2, 2019), aff’d, 817 F. App’x at 492. 23 Here, defendants summoned care when they learned plaintiff injured her foot, and an 24 orthopedic technician placed plaintiff in a splint and fitted her with crutches. Medical Records at 25 59. Plaintiff continued to receive medical care from other medical staff at the jail. See generally 26 id. Questions of whether she needed to see an orthopedic doctor, get immediate surgery or 27 received the proper care all involve decisions about plaintiff’s care and not the failure to summon 28 care. See Castaneda, 212 Cal. App. 4th at 1074 (“Once summoned, the quality of medical care is 1 a matter of medical policy and practice, . . . but it is not a violation of the employee’s obligation 2 to summon medical care under section 845.6.”). Accordingly, the court grants summary 3 judgment as to this claim. 4 D. Bane Act 5 Plaintiff brings a Bane Act claim against defendants County of Sacramento, Sacramento 6 County Sheriff’s Department, Sheriff Jones, Dr. Morin and Nurse Gallagher. FAC ¶ 96. The 7 Bane Act, codified at California Civil Code section 52.1, “protects individuals from conduct 8 aimed at interfering with rights that are secured by federal or state law, where the interference is 9 carried out ‘by threats, intimidation or coercion.’” Reese v. County of Sacramento, 888 F.3d 10 1030, 1040 (9th Cir. 2018) (quoting Venegas v. County of Los Angeles, 153 Cal. App. 4th 1230 11 (2007)); see Cal. Civ. Code § 52.1(b). When a Bane Act claim is based on an alleged federal 12 constitutional violation, as here, plaintiffs may rely on the same allegations to prove both that the 13 defendant deprived them of a constitutional right and threatened, intimidated or coerced them 14 under the Bane Act. See Reese, 888 F.3d at 1043. But the claim must also rest on factual 15 allegations that would allow an inference the defendant had a “specific intent” to violate the 16 plaintiff’s rights. See id. (quoting Cornell v. City of San Francisco, 17 Cal. App. 5th 766, 801 17 (2017)). These rules are applicable to claims of deliberate indifference to serious medical needs. 18 See Lapachet v. Cal. Forensic Med. Grp., Inc., 313 F. Supp. 3d 1183, 1196 (E.D. Cal. 2018). 19 Defendants conclude in one sentence that summary judgment should be granted on this 20 claim because “there is no evidence Plaintiff had any interactions with defendants, much less that 21 rise to the level of threats, intimidation, or coercion . . . .” MSJ at 13. As plaintiff notes, 22 however, “[d]efendants fail to identify or analyze any right” underlying her Bane Act claim. See 23 Opp’n at 24; MSJ at 14; see also FAC ¶ 99 (alleging defendants are liable under Bane Act for 24 depriving plaintiff of her statutory and constitutional rights protected by Eighth Amendment of 25 the U.S. Constitution, Article I Section 17 of California Constitution, Rehabilitation Act, and 26 ADA). One conclusion unsupported by argument or reference to the record is insufficient for 27 defendants to meet their initial burden at summary judgment. 1 While it is true a moving party may discharge its initial burden “by ‘showing’—that is, 2 pointing out to the district court—that there is an absence of evidence to support the nonmoving 3 party’s case,” Celotex Corp., 477 U.S. at 325, “[it] is not enough to move for summary judgment 4 without supporting the motion in any way or with a conclusory assertion that the plaintiff has no 5 evidence to prove his case,” id. at 328 (White, J., concurring). As the Ninth Circuit explained, the 6 Supreme Court in Celotex found the moving party could show an absence of evidence by 7 “direct[ing] the district court’s attention to [the nonmoving party’s] answer to interrogatories . . . 8 and to the absence of any other evidence . . . in the materials compiled during discovery.” Nissan 9 Fire & Marine Ins. Co., 210 F.3d at 1105. In other words, the moving party cannot shift the 10 burden to the nonmoving party “simply by saying that the nonmoving party has no such 11 evidence.” Id. Otherwise, the moving party could always discharge its burden by summarily 12 concluding the nonmoving party has no evidence. “[T]o carry its ultimate burden of persuasion 13 on the motion, the moving party must persuade the court that there is no genuine issue of material 14 fact.” Id. at 1102. Defendants have not done so here. They do not direct the court to plaintiff’s 15 deposition transcript, for example, or any other material in the record to support their conclusion 16 plaintiff has no evidence. Defendant has not met its initial burden of production. 17 The court could conclude its analysis here, but it also finds there is a triable issue of fact 18 preventing summary judgment of this claim, assuming defendants’ focus is on the underlying 19 Eighth Amendment claim. “[T]he Bane Act does not require the ‘threat, intimidation or coercion’ 20 element of the claim to be transactionally independent from the constitutional violation alleged.” 21 See Reese, 888 F.3d at 1043; see also Scalia, 308 F. Supp. 3d at 1084 (“[A] prison official’s 22 deliberate indifference to serious medical needs is a coercive act . . . .”). As discussed above, 23 there is a genuine dispute whether defendants violated plaintiff’s constitutional rights. The next 24 question is whether defendants had the specific intent to do so. “The specific intent inquiry for a 25 Bane Act claim is focused on two questions: first, ‘[i]s the right at issue clearly delineated and 26 plainly applicable under the circumstances of the case,” and second, ‘[d]id the defendant commit 27 the act in question with the particular purpose of depriving the citizen victim of his enjoyment of 28 the interests protected by that right?’” Sandoval v. County of Sonoma, 912 F.3d 509, 520 (9th 1 Cir. 2018) (quoting Cornell, 17 Cal. App. 5th at 803). If those two requirements are met, 2 “specific intent can be shown ‘even if the defendant did not in fact recognize the unlawfulness of 3 his act’ but instead acted in ‘reckless disregard’ of the constitutional right.” Id. (quoting Cornell, 4 17 Cal. App. 5th at 803). 5 Defendants argue plaintiff cannot “provide any California caselaw that establishes the law 6 in referral or delays to outside surgery is clearly established.” MSJ at 13. Specifically, 7 defendants argue the first question of the specific intent inquiry under the Bane Act is akin to the 8 “clearly established” prong of the qualified immunity analysis. Id. at 12–13. Defendants do not 9 cite nor has the court located any cases drawing this conclusion. While there are similarities 10 between the two tests, the court declines to adopt defendants’ argument and applies the specific 11 intent standard set forth by the California Second District Court of Appeal in Cornell, which was 12 adopted by the Ninth Circuit in Sandoval. 13 To determine whether a right is clearly delineated and plainly applicable, courts “look to 14 whether there is anything ‘vague or novel about [the application of the right] under the 15 circumstances of this case.’” Sandoval, 912 F.3d at 520 (quoting Cornell, 17 Cal. App. 5th at 16 803). The constitutional right at issue is the Eighth Amendment right to be free from deliberate 17 indifference to one’s serious medical need. This right is clearly delineated. Estelle, 429 U.S. at 18 104 (“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary 19 and wanton infliction of pain proscribed by the Eighth Amendment.”). The court also finds there 20 is nothing novel or vague about the application of the Eighth Amendment right under the 21 circumstances of this case, the gravamen of which is the delay of necessary medical care. See 22 Hunt, 865 F.2d at 201 (“Prison officials are deliberately indifferent to a prisoner’s serious medical 23 needs when they ‘deny, delay, or intentionally interfere with medical treatment.’”); Jett, 439 F.3d 24 at 1097 (delaying necessary medical care for reasons unrelated to prisoner’s medical needs is akin 25 to deliberate indifference); cf. Scalia, 493 F. Supp. 3d at 903 (denying summary judgment on 26 Bane Act claim because “a pretrial detainee’s right to be free from deliberate indifference to 27 serious medical needs, is ‘clearly delineated and plainly applicable’ to the circumstances”). The 1 court finds the right at issue is clearly delineated and plainly applicable under the circumstances 2 in this case. 3 The second, factual question -- whether defendants acted with the purpose of depriving 4 plaintiff of her constitutional rights -- is one properly reserved for the trier of fact. Cornell, 5 17 Cal. App. 5th at 803 (“If the trial judge concludes [the right at issue is clearly delineated and 6 plainly applicable], then the jury must make the second, factual, determination.”). Accordingly, 7 the court denies summary judgment on this claim. 8 E. Intentional Infliction of Emotional Distress (IIED) 9 Plaintiff brings an IIED claim against defendants Sheriff Jones, Dr. Morin and Nurse 10 Gallagher. FAC ¶ 103. To state a claim for IIED, plaintiff must allege “(1) extreme and 11 outrageous conduct by [defendants] with the intention of causing, or reckless disregard of the 12 probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme 13 emotional distress; and (3) actual and proximate causation of the emotional distress by the 14 defendant’s outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009) (internal marks 15 and citations omitted). “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to 16 exceed all bounds of that usually tolerated in a civilized community’ [and] the defendant's 17 conduct must be ‘intended to inflict injury or engaged in with the realization that injury will 18 result.’” Id. at 1050–51 (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1001 19 (1993)). 20 Defendants argue “there is no evidence Plaintiff had any interactions with defendants, 21 much less provide evidence [sic] that their respective individual conduct regarding Plaintiff rises 22 to the level of extreme and outrageous conduct.” MSJ at 14. As with the Bane Act claim, 23 defendants’ unsupported conclusion does not persuade the court they have met their initial 24 burden under the summary judgment standard. See, e.g., Shaposhnikov v. Pacifica Sch. Dist., 04- 25 01288, 2006 WL 931731, at *8 (N.D. Cal. Apr. 11, 2006) (“Two sentence paragraph asserting, in 26 conclusory fashion, that there is no evidence to support plaintiff’s state law claims . . . is 27 inadequate to meet defendants’ summary judgment burden.”). Again, defendants do not direct 1 the court to any material, such as answers to interrogatories or plaintiff’s deposition transcript, to 2 support their conclusion plaintiff has no evidence. 3 Moreover, as explained above, there is a genuine dispute whether defendants were 4 deliberately indifferent to plaintiff’s medical needs. If a jury found in favor of plaintiff, it could 5 find defendants, who were responsible for plaintiff’s medical care, were deliberately indifferent to 6 her medical needs and delayed surgery for non-medical reasons and allowed her to languish in 7 severe pain for over a month before releasing her. On this record, a reasonable jury could find 8 allowing an inmate to suffer severe pain for over a month without necessary treatment and 9 surgery is so outrageous it exceeds the bounds of what is tolerable. See Trujillo v. County of Los 10 Angeles, No. 14-543, 2019 WL 6622853, at *12 (C.D. Cal. Jan. 22, 2019) (“If a jury finds that 11 [defendant] had purposefully delayed or refused medical care, that would be outrageous.”); cf. 12 Estelle, 429 U.S. at 103 (noting failure to treat prisoner’s medical needs may produce physical 13 torture or pain and suffering serving no penological purpose). The court denies summary 14 judgment on this claim. 15 F. Negligence 16 Plaintiff also makes a negligence claim against defendants Sheriff Jones, Dr. Morin and 17 Nurse Gallagher. FAC ¶ 109. To state a claim for negligence under California law, plaintiffs 18 must sufficiently allege “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] 19 (c) the breach [was] the proximate or legal cause of the resulting injury.” Ladd v. County of San 20 Mateo, 12 Cal. 4th 913, 917 (1996) (emphasis and citation omitted). A duty to a plaintiff is an 21 essential element which “may be imposed by law, be assumed by the defendant, or exist by virtue 22 of a special relationship.” Potter, 6 Cal. 4th at 985. 23 1. Sheriff Jones 24 Sheriff Jones argues he is entitled to summary judgment because he is entitled to 25 immunity and there is “no evidence [he] had any knowledge of Plaintiff or her medical or mental 26 health needs.” MSJ at 14. Under California Government Code section 820.2, “a public employee 27 is not liable for an injury resulting from his act or omission where the act or omission was the 28 result of the exercise of the discretion vested in him, whether or not such discretion be abused.” 1 Cal. Gov’t Code § 820.2. Defendant has the burden of establishing he is entitled to immunity. 2 AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 639 (9th Cir. 2012). Defendant cannot 3 meet his burden through his conclusory argument simply that he is entitled to immunity. See, 4 e.g., City ECO Res., Inc. v. City of Rio Vista, No. 05-2556, 2006 WL 947763, at *3 (finding 5 conclusory argument insufficient to meet burden of showing section 820.2 immunity applies). 6 Similarly, defendant here again has not persuaded the court there is no genuine dispute of 7 material fact by merely concluding plaintiff has no evidence. See, e.g., Rundgren v. Washington 8 Mut. Bank, F.A., 09-00495, 2011 WL 13070777, at *3 (D. Haw. Aug. 23, 2011) (“[Defendant] 9 cannot carry its initial burden on summary judgment through mere argument that Plaintiffs cannot 10 come forward with evidence to support their claims.” (emphasis in original)). As with the Bane 11 Act claim and the IIED claim, defendants do not direct the court to any material to support their 12 mere conclusion that plaintiff has no evidence. Nissan Fire & Marine Ins. Co., 210 F.3d at 1105 13 (“A moving party may not require the nonmoving party to produce evidence supporting its claim 14 or defense simply by saying that the nonmoving party has no such evidence.”). 15 The court denies summary judgment with respect to Sheriff Jones. 16 2. Defendants Morin and Gallagher 17 Defendants argue plaintiff’s claim for negligence against Dr. Morin and Nurse Gallagher 18 is redundant of the claim for professional negligence, MSJ at 14, which plaintiff voluntarily 19 dismissed, see Opp’n at 25. Defendants also argue a claim for breach of duty against medical 20 professionals requires a breach of standard medical care. Reply at 9. Plaintiff objects and states 21 claims of ordinary negligence are not identical to or redundant of claims of professional 22 negligence. Opp’n at 25. At hearing, plaintiff confirmed she was not dismissing her negligence 23 claim against these two defendants. 24 The California Supreme Court has held, “[a]s to any given defendant, only one standard of 25 care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or 26 alternate theories of liability.” Flowers v. Torrance Mem’l Hosp. Med. Ctr., 8 Cal. 4th 992, 998 27 (1994). The standard of care under both ordinary and professional negligence is “ordinary 28 prudence.” Id. For a professional, determining what constitutes “ordinary prudence” in a 1 particular situation takes consideration of whether the individual exercised the knowledge, skill 2 and care ordinarily possessed by members of that profession. Id. 3 Defendants argue “[p]laintiff cannot establish either Defendant breached any standard of 4 care.” MSJ at 15. Defendants, again, state a conclusion without directing the court to the record 5 or explaining the basis of their conclusion. Nissan Fire & Marine Ins. Co., 210 F.3d at 1102–03 6 (“[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the 7 court that there is no genuine issue of material fact. If a moving party fails to carry its initial 8 burden of production, the nonmoving party has no obligation to produce anything . . . .”). 9 Defendants have not met their initial burden. The court denies summary judgment as to these 10 defendants. 11 VI. CONCLUSION 12 For the reasons above, the court grants in part and denies in part defendants’ motion for 13 summary judgment. The court specifically orders as follows: 14 1. Defendants’ motion for summary judgment on plaintiff’s first, second, third, 15 fifth, sixth and seventh claims is denied. 16 2. Defendant’s motion for summary judgment on plaintiff’s fourth and eighth claim 17 is granted. 18 In light of the expiration of the dispositive motion deadline, a final pretrial conference is 19 set for July 21, 2023, at 10:00 a.m. See E.D. Cal. L.R. 282. The parties shall meet and confer 20 and file a joint pretrial statement no later than three weeks prior to the final pretrial 21 conference. 22 The provisions of Local Rule 281 shall apply with respect to the matters to be included in 23 the joint pretrial statement. At least one of the attorneys who will conduct the trial for each of the 24 parties shall attend the final pretrial conference. All motions in limine must be filed in 25 conjunction with the joint pretrial statement. In most cases, motions in limine are addressed and 26 resolved on the morning of the first day of trial. The parties may alert the court at the final 27 pretrial conference and in their final joint pretrial statement that a particular motion or motions 28 should be resolved earlier. At the final pretrial conference, the court will set a briefing and 1 hearing schedule on the motions in limine as necessary. The parties are reminded that a motion in 2 limine is a pretrial procedural device designed to address the admissibility of evidence. The court 3 looks with disfavor upon dispositional motions presented at the final pretrial conference or at trial 4 in the guise of motions in limine. 5 In the meantime, if the parties jointly agree to referral to a court-convened settlement 6 conference with another judge of the court, they may file such request in writing. 7 This order resolves ECF No. 79. 8 IT IS SO ORDERED. 9 DATED: May 15, 2023.