Townsend v. County of Santa Cruz ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 ANTONIO NEAL TOWNSEND, through Case No. 19-cv-00630-BLF his Conservator and Guardian ad Litem 10 JACQUELINE TOWNSEND, ORDER GRANTING IN PART AND 11 Plaintiff, DENYING IN PART TELECARE’S MOTION FOR SUMMARY 12 v. JUDGMENT; GRANTING CFMG’S MOTION FOR SUMMARY 13 COUNTY OF SANTA CRUZ; SANTA JUDGMENT; AND GRANTING IN CRUZ COUNTY SHERIFF’S OFFICE; PART AND DENYING IN PART THE 14 SANTA CRUZ COUNTY HEALTH COUNTY’S MOTION FOR SUMMARY SERVICES BEHAVIORAL HEALTH JUDGMENT 15 DIVISION; TELECARE CORPORATION; and CALIFORNIA FORENSIC MEDICAL [Re: ECF 90, 91, 94] 16 GROUP, 17 Defendants. 18 19 20 This action was filed in the wake of Plaintiff Antonio Neal Townsend’s attempted suicide 21 while he was a detainee at the Santa Cruz County Jail (“the Jail”). Days before the tragic incident, 22 an emergency room doctor placed Townsend on a 5150 hold1 and referred him to the Santa Cruz 23 Behavioral Health Center (“SCBHC”) for evaluation. Defendant Telecare Corporation, which 24 operates the SCBHC under contract with Santa Cruz County, released Townsend approximately 25 thirty-four hours later. Townsend immediately robbed two convenience stores, bought and 26 1 The phrase “5150 hold” derives from California Welfare & Institution Code § 5150, which 27 provides that an individual may be placed in an approved mental health facility for up to 72 hours 1 ingested heroin, and was arrested and booked into the Jail. He hanged himself from a railing in 2 his housing unit’s day room during his first hour out of his cell. Townsend, then twenty-two years 3 old, was resuscitated but he suffered severe brain injury and will need care for the rest of his life. 4 Townsend’s grandmother and Guardian ad Litem, Jacqueline Townsend, brought this suit 5 on his behalf. Townsend claims that the entities responsible for his care at the SCBHC and the 6 Jail violated his rights to adequate medical and mental health care as guaranteed by the Due 7 Process clause of the Fourteenth Amendment. He also claims that those entities discriminated 8 against him on the basis of his serious mental disability. Townsend sues Telecare Corporation 9 (“Telecare”); California Forensic Medical Group (“CFMG”); and the County of Santa Cruz, the 10 Santa Cruz Sheriff’s Office, and the Santa Cruz County Health Services Behavioral Health 11 Division (collectively, “the County”). 12 Telecare, CFMG, and the County move for summary judgment or, in the alternative, 13 partial summary judgment. For the reasons discussed below, Telecare’s motion is GRANTED IN 14 PART AND DENIED IN PART, CFMG’s motion is GRANTED, and the County’s motion is 15 GRANTED IN PART AND DENIED IN PART. 16 I. BACKGROUND2 17 On the evening of February 12, 2017, Townsend walked into the emergency department at 18 Dominican Hospital in Santa Cruz, stating that he felt depressed and suicidal. Dr. Marc Yellin 19 placed him on a 5150 hold and referred him to the SCBHC. As relevant here, the SCBHC 20 maintains a Crisis Stabilization Program (“CSP”) and a Psychiatric Health Facility (“PHF”). The 21 CSP is the designated receiving facility in the County for persons who are placed on a 5150 hold. 22 It is a locked area with reclining chairs rather than beds, as it is intended for stays of twenty-four 23 hours or less, after which the person may be released into the community or hospitalized at the 24 PHF or other inpatient facility. The PHF is a locked acute care facility with beds where 25 individuals may be housed on an inpatient basis. Telecare, a private corporation, operates the CSP 26 and the PHF under contracts with the County. 27 1 Townsend was transported to the CSP via ambulance at approximately 12:45 a.m. on 2 February 13, 2017. During his initial assessment, Townsend stated that he was feeling suicidal 3 and planned to cut himself with a knife. Townsend was noted to have previous admissions to the 4 CSP on November 26, 2016 and December 18, 2016. His available history also indicated that he 5 had been arrested by Santa Cruz Police only a few days earlier, on February 8, 2017, for an 6 unknown incident and had been taken to Watsonville Community Hospital for medical clearance 7 prior to booking. At that time, he reported a history of substance abuse, including use of 8 methamphetamines. His urine tox screen at the time of his February 13, 2017 admission to the 9 CSP was positive for methamphetamines and opiates. 10 Townsend remained in the CSP for approximately thirty-four hours. He slept much of that 11 time, and CSP staff noted that he appeared to be sleeping off drug intoxication. Catherine Louise, 12 LCSW, and Kory Van Unen, ASW, both found Townsend to be sleepy and difficult to engage. 13 However, by the morning of February 14, 2017, Townsend was more coherent. He denied 14 suicidal ideation and declined substance abuse treatment. Bernice Ferguson, RN, and Jo E. Morel, 15 MFT, concurred in lifting the 5150 hold, and Townsend was discharged from the CSP at 16 approximately 10:20 a.m. on February 14, 2017. 17 Minutes after leaving the CSP, Townsend attempted to rob a nearby convenience store 18 using a demand note and claiming that he had a gun. When he was unsuccessful, he walked about 19 a mile to a 7-Eleven store, which he robbed using the same demand note. He obtained 20 approximately $100 from the 7-Eleven store, which he used to buy heroin. Townsend was 21 arrested at about 12:00 p.m. on February 14, 2017. When questioned by a Santa Cruz Police 22 Department detective, Townsend admitted to the robberies, stated that he had written the demand 23 note while at the CSP, and said that he had used the robbery proceeds to buy heroin, which he had 24 ingested. 25 Townsend was booked into the Jail at approximately 3:30 p.m. on February 14, 2017. 26 Officer Uva, the jail intake officer, completed a Booking Premedical Assessment form. Townsend 27 denied wanting to hurt himself, denied drug or alcohol use that would cause withdrawal issues, 1 did not see signs that Townsend was under the influence of drugs or alcohol. During a pat search, 2 another officer found that Townsend was wearing a medical bracelet from Dominican Hospital. 3 Townsend stated that he had gone to Dominican claiming to be suicidal, but that he had not 4 actually been suicidal and just wanted a place to spend the night. Dr. Malka Friedman, a 5 psychologist retained by the County to perform risk assessment and crisis intervention at the Jail, 6 happened to be in the booking area. Friedman conducted a brief mental health risk assessment – 7 video shows that she spoke to Townsend for less than a minute – during which Townsend was 8 cooperative and denied suicidal ideation. Friedman determined that Townsend did not meet the 9 criteria for safety-cell housing and otherwise left his housing classification to custodial staff. 10 Townsend thereafter underwent an intake health screening performed by Hannah Miller, 11 R.N., an employee of CFMG. CFMG provides medical care to inmates held at the Jail pursuant to 12 a contract with the County. That contract does not cover mental health care, which is provided to 13 Jail inmates by the County. Townsend denied having a history of drug or alcohol use. His vital 14 signs were within normal limits and did not indicate that he was under the influence of drugs or 15 alcohol. Townsend also denied suicidal ideation. However, Miller charted Townsend’s 16 hospitalization the prior day for suicidal ideation and referred him for a mental health evaluation. 17 Officer Larkin conducted Townsend’s housing classification interview. Townsend told 18 Larkin that he had been treated for past suicidal issues, but he denied any present suicidal ideation. 19 He requested that he be placed in protective custody and Restricted to Cell (“RTC”) housing, 20 stating that he did not want trouble with other inmates. Jail records reflected that Townsend had 21 not previously been placed in a safety cell. Larkin classified Townsend as an administrative 22 segregation, protective custody inmate and placed him on RTC. Larkin assigned Townsend to B 23 Unit cell 23, and he was taken there in the early morning hours of February 15, 2017. Later in the 24 morning, jail personnel performed an administrative segregation check on Townsend in his cell. 25 Classification Officer Reed completed Townsend’s classification form and did not make any 26 changes to his housing assignment. 27 At approximately 11:10 a.m. on February 15, 2017, Officers Ward and Gomez entered the 1 arrived to relieve Ward and Gomez for their lunch break. Flores escorted Townsend to the B Unit 2 Patio area and secured him there before escorting another inmate out of B Unit for a professional 3 visit. About ten minutes later, Townsend knocked on the B Unit Patio door, indicating that he 4 wanted to go into the B Unit dayroom. Central Control opened the door remotely. Within 5 minutes of entering the dayroom, Townsend went to his cell, apparently to retrieve his mattress 6 cover, and used the mattress cover to hang himself from the bottom railing of B Unit’s mezzanine. 7 At about 11:40 a.m., another inmate saw Townsend hanging and banged on his cell door to get an 8 officer’s attention. At about 11:45 a.m., Ward walked into the B Unit to investigate the noise and 9 saw Townsend hanging. Ward called for a medical response and lifted Townsend up from the legs 10 to relieve pressure on his neck. Officers cut Townsend down and medical staff resuscitated him. 11 His life was saved, but he suffered severe brain injury. 12 Townsend, through his Guardian ad Litem, filed the complaint in this action on February 5, 13 2019, and the operative first amended complaint (“FAC”) on June 18, 2019. He asserts two 14 claims against Telecare, CFMG, and the County: (1) a § 19833 claim for deprivation of the rights 15 to constitutionally adequate medical and mental health care as guaranteed by the Fourteenth 16 Amendment4; and (2) a claim for disability discrimination in violation of the Americans with 17 Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973. 18 II. LEGAL STANDARD 19 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 21 Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Fed. R. Civ. 22 P. 56(a)). “The moving party initially bears the burden of proving the absence of a genuine issue 23 of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex 24 Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Where the non-moving party bears the burden of 25 3 42 U.S.C. § 1983. 26 4 The FAC also appears to assert a § 1983 claim for violation of the right to be free from 27 unreasonable seizure as guaranteed by the Fourth Amendment. See FAC ¶ 73. However, 1 proof at trial, the moving party need only prove that there is an absence of evidence to support the 2 non-moving party’s case.” Id. “Where the moving party meets that burden, the burden then shifts 3 to the non-moving party to designate specific facts demonstrating the existence of genuine issues 4 for trial.” Id. “[T]he non-moving party must come forth with evidence from which a jury could 5 reasonably render a verdict in the non-moving party’s favor.” Id. “The court must view the 6 evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the 7 nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. “‘Where the record taken as a whole 8 could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 9 trial.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 10 (1986)). 11 III. DISCUSSION 12 Each of the Defendants seeks summary judgment on Townsend’s § 1983 claim (Claim 1) 13 and disability discrimination claim (Claim 2). The Court discusses the legal standards applicable 14 to each claim before turning to Defendants’ motions. 15 A. Section 1983 16 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 17 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 18 violation was committed by a person acting under the color of State law.” Long v. Cty. of Los 19 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). 20 With respect to the first element, Townsend asserts violation of the rights to adequate 21 medical and mental health care while in state custody. “Individuals in state custody have a 22 constitutional right to adequate medical treatment.” Sandoval v. Cty. of San Diego, 985 F.3d 657, 23 667 (9th Cir. 2021). For pretrial detainees, that right arises under the Fourteenth Amendment’s 24 Due Process Clause. See id. “Similarly here, the State has a Fourteenth Amendment obligation 25 toward those whom it has ordered involuntarily committed.” Rawson v. Recovery Innovations, 26 Inc., 975 F.3d 742, 753 (9th Cir. 2020) (finding that just as the State has an Eighth Amendment 27 obligation to provide adequate medical care to those it has incarcerated, so too does the State have 1 With respect to the second element, Townsend does not assert constitutional claims against 2 any individuals. He sues only the entities that provided his medical and mental health care at the 3 CSP and the Jail. “The Supreme Court in Monell held that municipalities may only be held liable 4 under section 1983 for constitutional violations resulting from official county policy or custom.” 5 Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (citing Monell v. Dep’t of 6 Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978)).5 “[P]olicies can include written 7 policies, unwritten customs and practices, [or] failure to train municipal employees on avoiding 8 certain obvious constitutional violations.” Benavidez, 993 F.3d at 1153. “Under Monell v. 9 Department of Social Services, the [municipality] can be liable under § 1983 if its ‘policy or 10 custom’ caused [the detainee’s] injuries through deliberate indifference to his constitutional right 11 to adequate medical care.” Sandoval, 985 F.3d at 681. 12 To impose Monell liability on the entity defendants in this case, Townsend “must prove: 13 (1) [he] had a constitutional right of which he was deprived; (2) the municipality had a policy; (3) 14 the policy amounts to deliberate indifference to his constitutional right; and (4) the policy is the 15 moving force behind the constitutional violation.” Gordon v. Cty. of Orange, 6 F.4th 961, 973 16 (9th Cir. 2021) (quotation marks and citation omitted). 17 B. ADA and Section 504 of the Rehabilitation Act 18 “Congress passed the ADA, 42 U.S.C. § 12101 et seq., in 1990 ‘to provide clear, strong, 19 consistent, enforceable standards addressing discrimination against individuals with disabilities.’” 20 Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (quoting 42 U.S.C. § 12101(b)(2)). 21 “Title II of the ADA prohibits public entities from discriminating on the basis of disability.” 22 Payan v. Los Angeles Cmty. Coll. Dist., --- F.4th ----, 2021 WL 3730692, at *7 (9th Cir. Aug. 24, 23 2021) (citing 42 U.S.C. § 12132). Section 504 of the Rehabilitation Act “similarly prohibits 24 disability discrimination by recipients of federal funds.” Payan, 2021 WL 3730692, at *7. “The 25 two laws are interpreted coextensively because there is no significant difference in the analysis of 26 27 5 The Court initially understood from Townsend’s briefing that he was pursuing a theory of “direct 1 rights and obligations created by the two Acts.” Id. (quotation marks and citation omitted). The 2 elements of a claim under Title II are as follows: (1) [the plaintiff] is a qualified individual with a 3 disability; (2) he was either excluded from participation in or denied the benefits of a public 4 entity’s services, programs, or activities, or was otherwise discriminated against by the public 5 entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his 6 disability.” Id. (quotation marks and citation omitted). The elements of a Section 504 claim are 7 similar, with the added requirement that the program receives federal financial assistance. See id. 8 Title III of the ADA applies to private entities that own, lease, or operate a place of public 9 accommodation. See Molski, 481 F.3d at 730. “To prevail on a Title III discrimination claim, the 10 plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a 11 private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff 12 was denied public accommodations by the defendant because of her disability.” Id. 13 C. Telecare’s Motion 14 Townsend’s claims against Telecare arise from the evaluation and care he received during 15 his 5150 hold at the CSP. 16 1. Claim 1 – § 1983 17 Townsend claims that he was deprived of the Fourteenth Amendment right to adequate 18 mental health care when he was released from the 5150 hold without a psychiatric consultation, in 19 violation of Telecare’s own written policy and the professional standard of care in California. 20 Townsend asserts that this constitutional deprivation was caused by the CSP staff’s practice of 21 releasing 5150 holds based on evaluations performed by lower level staff such as registered nurses 22 and family therapists, without consulting a psychiatrist, and by Telecare’s failure to train its staff 23 regarding its written policy that a psychiatric consultation is required to release a 5150 hold. 24 Finally, Townsend argues that had a psychiatrist been consulted, he would not have been released 25 while in a suicidal frame of mind, but would have been transferred to the PHF or other inpatient 26 facility. 27 Telecare argues that it is entitled to summary judgment on Townsend’s § 1983 claim 1 constitutional violation arising out of the evaluation and care he received in connection with the 2 5150 hold. In opposition, Townsend contends that Telecare is a state actor with respect to its 3 operation of the CSP, and that there are genuine issues of material fact as to whether Townsend 4 suffered a constitutional deprivation attributable to Telecare. In reply, Telecare asks that if the 5 Court denies summary judgment on the § 1983 claim, it apply the 1975 Medical Injury 6 Compensation Reform Act (“MICRA”) cap on the damages that can be awarded against it. 7 At the hearing, Townsend’s counsel requested that the Court use its inherent power to 8 grant partial summary judgment for Townsend on the state actor question even though Townsend 9 did not file an affirmative summary judgment motion. The Court requested and received 10 supplemental briefing on the scope of its inherent power to grant Townsend’s request. 11 a. State Actor 12 “Pursuant to § 1983, a defendant may be liable for violating a plaintiff’s constitutional 13 rights only if the defendant committed the alleged deprivation while acting under color of state 14 law.” Rawson, 975 F.3d at 747. “The determination of whether a nominally private person or 15 corporation acts under color of state law is a matter of normative judgment, and the criteria lack 16 rigid simplicity.” Id. (quotation marks and citation omitted). The Ninth Circuit has “recognized at 17 least four different general tests that may aid . . . in identifying state action: (1) public function; (2) 18 joint action; (3) governmental compulsion or coercion; and (4) governmental nexus.” Id. 19 (quotation marks and citation omitted). In Rawson, the Ninth Circuit questioned “[w]hether these 20 different tests are actually different in operation or simply different ways of characterizing the 21 necessarily fact-bound inquiry that confronts the Court” when a § 1983 claim is brought against a 22 private person or corporation, but it found that the issue “need not be resolved.” Id. “Satisfaction 23 of any one test is sufficient to find state action, so long as no countervailing factor exists.” Id. 24 (quotation marks and citation omitted). 25 Townsend argues only the governmental nexus text. Accordingly, the Court limits its 26 discussion to that test. The Ninth Circuit has described the governmental nexus test as follows: 27 “In order to be considered state action, when a private actor participates in a governmental act, the 1 of the latter may be fairly treated as that of the State itself.” Jensen v. Lane Cty., 222 F.3d 570, 2 575 (9th Cir. 2000) (quotation marks and citation omitted). “[D]etailed regulation of and 3 substantial funding for private actors are not sufficient to transform the party’s conduct into state 4 action.” Id. “[T]he ‘State [must be] so far insinuated into a position of interdependence with the 5 [private party] that it was a joint participant in the enterprise.’” Id. (quoting Jackson v. 6 Metropolitan Edison Co., 419 U.S. 345, 357-58 (1974)). 7 Telecare argues that on this record, the only connections between it and the County are that 8 Telecare operates the CSP pursuant to a contract with the County, the County has identified the 9 CSP as the designated receiving facility in the County for persons who are placed on a 5150 hold, 10 and Telecare leases the CSP facilities from the County. Telecare cites decisions of district courts 11 within the Ninth Circuit holding that a county’s designation of a private hospital as a receiving 12 facility for persons on 5150 holds is not sufficient to meet the governmental nexus test. See Walsh 13 v. AMD Sacramento, No. 2:13-CV-2077 MCE KJN, 2014 WL 4472752, at *11 (E.D. Cal. Sept. 14 11, 2014), report and recommendation adopted (Dec. 29, 2014), aff’d sub nom. Walsh v. Am. 15 Med. Response, 684 F. App’x 610 (9th Cir. 2017) (action by a private party pursuant to a state 16 statute is insufficient, standing alone, to render that party a state actor); Sturm v. El Camino Hosp., 17 No. C09-02324 RMW, 2010 WL 725563, at *4 (N.D. Cal. Feb. 26, 2010) (“[T]hat the county 18 government designated the hospital as a facility that may hold individuals for 72-hour treatment 19 and evaluation and likely designated the nurse as an individual qualified to make the probable 20 cause finding” was insufficient to render the hospital a state actor). When the nonmoving party 21 has the burden of proof at trial, the moving party may meet its initial burden on summary 22 judgment by pointing to an absence of evidence in the record. See In re Oracle Corp. Sec. Litig., 23 627 F.3d at 387. The Court thus finds that Telecare has met its initial burden by pointing to an 24 absence of evidence showing a close nexus between it and the County. The burden therefore 25 shifts to Townsend to demonstrate a genuine issue of fact. 26 Townsend directs the Court to the contract between the County and Telecare for operation 27 of the CSP and the PHF. See Scruggs Decl. Exh. 1 at TC 000428, ECF 97. The contract provides 1 the Santa Cruz County Mental Health Plan (SCMHP) and shall complete and submit supporting 2 documentation for all admissions.” Id. at TC 000436. Telecare also must “enter all Client Service 3 Information, admission data, and billing information into an approved County data system.” Id. 4 Telecare is responsible for mandated reporting of patient information, admission and discharge 5 data, and other required reports to the Office of Statewide Health Planning and Development. Id. 6 Under the contract, Telecare must notify the County “of any admission of a County individual 7 within 24 hours or the next business day” in a manner approved by the County. Id. at TC 000441 8 ¶ 18. Telecare must log all grievances and their dispositions, and must provide summaries of the 9 grievance log entries to the County at monthly intervals. Id. ¶ 20. Telecare must notify the 10 County “of all incidents or unusual occurrences reportable to state licensing bodies that affect 11 County Individuals within twenty-four (24) hours.” Id. at TC 000442 ¶ 20. 12 In addition to the above, the contract provides that Telecare “shall work collaboratively 13 with COUNTY HSA employees and shall function as a key service element in the continuum of 14 care for mental health service in the County.” Id. at TC 000443 ¶ 30. The County has the right 15 “to participate in the selection process of key management positions” and to “review[] the 16 selection process of key management staff on an on-going basis. Id. The County also has the 17 right to audit Telecare’s financial records and other data. Id. at TC 000444. The contract provides 18 that Telecare “shall develop and implement a Cultural Competency Plan in conjunction with 19 COUNTY,” and pursuant to such plan must ensure that all staff receive ongoing training on 20 cultural competency. Id. at TC 00045. 21 Townsend argues persuasively that these contractual provisions demonstrate that the 22 County is far more involved in the operation of the CSP and PHF than is suggested by Telecare. 23 Given the County’s oversight with respect to selection of key management positions, joint 24 development of a cultural competency training plan, and similar aspects of the contract, the Court 25 finds that there is at least a genuine dispute as to whether Telecare is a state actor under the 26 governmental nexus test. The Court has no trouble concluding that a jury could determine that 27 “the state has so deeply insinuated itself” into the process of operating the CSP that Telecare must 1 At the hearing, Townsend’s counsel suggested that the Court could grant partial summary 2 judgment in Townsend’s favor on the state actor issue, despite the fact that Townsend did not file 3 a motion seeking affirmative relief. Counsel cited the case Cool Fuel, Inc. v. Connett, 685 F.2d 4 309, 311 (9th Cir. 1982), in which the Ninth Circuit held that “the court may sua sponte grant 5 summary judgment to the non-moving party” in certain circumstances. Those circumstances exist 6 when “it is made to appear from all the records, files, affidavits and documents presented that 7 there is no genuine dispute respecting a material fact essential to the proof of movant’s case and 8 that the case cannot be proved if a trial should be held.” Id. In addition, the moving party against 9 whom sua sponte summary judgment is contemplated must be afforded “a full and fair 10 opportunity to ventilate the issues involved in the motion.” Id. at 312. The Court requested 11 supplemental briefing on a potential exercise of the Court’s inherent power under Cool Fuel. 12 While it is satisfied that it has the authority to grant Townsend’s request for entry of partial 13 summary judgment in his favor, the Court declines to exercise that authority here. Whether the 14 defendant acted under color of state law is an element of a § 1983 claim that normally must be 15 proved to the jury by a preponderance of the evidence. See Ninth Circuit Model Civ. Jury 16 Instructions 9.3, 9.5. The Ninth Circuit has characterized the question of whether a private 17 corporation is a state actor for § 1983 purposes as a “necessarily fact-bound inquiry.” Rawson, 18 975 F.3d at 747. In Rawson, the Ninth Circuit resolved that factual inquiry in the context of the 19 appeal, choosing to go beyond merely vacating the district court’s grant of summary judgment for 20 the defendant, and making an affirmative finding “that a sufficiently close nexus between the state 21 and the private actor existed” such “that the action of the latter may be fairly treated as that of the 22 State itself.” Rawson, 975 F.3d at 757 (quotation marks and citation omitted). The Ninth Circuit 23 did the same in Jensen. See Jensen, 222 F.3d at 575-76 (“[U]nder the close nexus/joint action test, 24 we hold that Dr. Robbins’ conduct constituted state action.”). In this case, however, the Court is 25 not persuaded that the contract between Telecare and the County establishes the requisite close 26 nexus as a matter of law, such that no reasonable jury could find for Telecare on the issue. While 27 it is the Court’s opinion that Townsend’s showing on governmental nexus is strong, the Court will 1 Accordingly, Telecare’s motion for summary judgment as to Claim 1 on the basis that it is 2 not a state actor is DENIED. 3 b. Constitutional Violation 4 Under the authorities discussed above, Townsend must prove the following elements in 5 order to prevail on his § 1983 claim against Telecare: (1) he had a constitutional right of which he 6 was deprived; (2) Telecare had a policy; (3) the policy amounted to deliberate indifference to his 7 constitutional right; and (4) the policy was the moving force behind the constitutional violation. 8 See Gordon, 6 F.4th at 973. 9 i. Constitutional Right of Which He was Deprived 10 Townsend asserts that his § 5150 hold gave rise to a Fourteenth Amendment right to 11 adequate mental health care, and that he was deprived of that right when he was released from the 12 5150 hold without a psychiatric consultation. Townsend characterizes his release based on the 13 consensus of lower-level CSP medical staff as a failure to exercise “professional judgment” in 14 violation of his Fourteenth Amendment rights as described by the Supreme Court in Youngberg v. 15 Romeo. See Youngberg v. Romeo, 457 U.S. 307, 321 (1982). 16 Telecare relies on Cotton v. Cty. of Santa Barbara for the proposition that § 5150 does not 17 create a liberty interest, and thus release from a § 5150 hold cannot amount to a constitutional 18 violation. See Cotton v. Cty. of Santa Barbara, No. CV 03-7652 PSG (RZX), 2010 WL 11508619 19 (C.D. Cal. Apr. 19, 2010), aff’d sub nom. Cotton v. Martinez, 475 F. App’x 207 (9th Cir. 2012). 20 In that case, Russell Cotton was placed on a 5150 hold, but while officers were transporting him to 21 the Santa Barbara Psychiatric Health Facility (“PHF”), he kicked out a window of the vehicle. See 22 id. at *1. The PHF staff informed the officers that they could not accommodate Cotton, so the 23 officers arrested him and took him to the Santa Barbara County Jail. See id. The officers 24 allegedly used force to subdue Cotton and then left him alone in a cell despite his complaints that 25 he could not breathe. See id. Cotton died, and his wife and daughters filed suit against the County 26 of Santa Barbara and others, alleging among other things that defendants acted with deliberate 27 indifference to Cotton’s medical needs. See id. The district court granted the defendants’ motion 1 create a liberty interest in being involuntarily committed. Id. at *3. The district court concluded 2 that “[b]ecause § 5150 did not create a constitutionally protected interest in being transferred to a 3 psychiatric facility, evidence of any violation of § 5150 would be irrelevant to establishing a due 4 process violation.” Id. 5 Cotton is both factually and legally distinguishable from the present case. In Cotton, the 6 plaintiffs’ decedent was never actually transported to a psychiatric facility and evaluated pursuant 7 to § 5150. The Cotton court understood the plaintiffs to be asserting that § 5150 creates a 8 constitutional right to be involuntarily committed, and it found that § 5150 does not give rise to 9 such a right. In contrast, Townsend was transported to a psychiatric facility, where he was held 10 and evaluated for thirty-four hours pursuant to § 5150. Townsend’s assertion is not that he had a 11 constitutional right to be involuntarily committed, but rather that once he was placed on an 12 involuntary hold, he had a constitutional right to adequate mental health care. Accordingly, 13 Cotton is not applicable here. 14 The cases cited by Townsend support his position that an individual who is placed on a 15 5150 hold has a constitutional right to adequate mental health care while subject to an involuntary 16 hold. In Youngberg, the Supreme Court held that developmentally disabled individuals who are 17 committed to a state institution have Fourteenth Amendment rights to “adequate food, shelter, 18 clothing, and medical care,” as well as “safety, freedom of movement, and training.” Youngberg, 19 457 U.S. at 315-18. The Ninth Circuit has applied Youngberg to conclude that mentally 20 incapacitated criminal defendants have Fourteenth Amendment rights in “freedom from 21 incarceration and in restorative treatment,” meaning “mental health treatment that gives them a 22 realistic opportunity to be cured or improve the mental condition for which they were confined.” 23 Oregon Advoc. Ctr. v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (quotation marks and citation 24 omitted). Finally, while addressing an Oregon state statute authorizing involuntary commitment 25 of individuals for evaluation and treatment, the Ninth Circuit recognized that “the State has an 26 Eighth Amendment obligation to provide adequate medical care to those whom it has 27 incarcerated,” and similarly “has a Fourteenth Amendment obligation toward those whom it has 1 reasoning of these authorities, Townsend had a Fourteenth Amendment right to adequate mental 2 health care once he was placed on the 5150 hold and throughout its duration. 3 Townsend asserts that he was deprived of the right to adequate mental health care when he 4 was released from the 5150 hold based on the concurrence of Nurse Ferguson and MFT Morel, 5 without consultation with a psychiatrist. Townsend claims that a psychiatric consultation is 6 required for release of a 5150 hold under both CSP’s written policy and the standard of care in 7 California. Telecare contends that Townsend’s claim amounts to nothing more than a claim of 8 negligence, which is insufficient to give rise to a constitutional violation. See Toguchi v. Chung, 9 391 F.3d 1051, 1060 (9th Cir. 2004) (“[L]iability for negligently inflicted harm is categorically 10 beneath the threshold of constitutional due process.” (quotation marks and citation omitted)). In 11 response, Townsend argues that in the context of involuntary commitment, a constitutional 12 violation may be established if the state official does not exercise “professional judgment.” See 13 Ammons v. Washington Dep’t of Soc. & Health Servs., 648 F.3d 1020, 1027 (9th Cir. 2011). 14 Townsend is correct. In the involuntary commitment context, “the Constitution requires 15 that hospital officials, in order to protect a patient’s right to safe conditions, exercise professional 16 judgment.” Ammons, 648 F.3d at 1027 (citing Youngberg, 457 U.S. at 321-22). “[L]iability may 17 be imposed for failure to provide safe conditions ‘when the decision made by the professional is 18 such a substantial departure from accepted professional judgment, practice, or standards as to 19 demonstrate that the person responsible actually did not base the decision on such a judgment.’” 20 Ammons, 648 F.3d at 1027 (quoting Youngberg, 457 U.S. at 323). The Ninth Circuit has referred 21 to this standard as the “Youngberg professional judgment standard.” Ammons, 648 F.3d at 1027. 22 This standard is distinct from the “deliberate indifference” standard used in Eighth Amendment 23 cruel and unusual punishment cases. See id. 24 Many of the cases applying Youngberg address the right of involuntarily committed 25 individuals to “safe conditions,” which is slightly different than the right to adequate mental health 26 care asserted here. However, in Mink, the Ninth Circuit expressly recognized the Fourteenth 27 Amendment right of mentally incapacitated criminal defendants to “mental health treatment that 1 confined.” Mink, 322 F.3d at 1121 (quotation marks and citation omitted). Moreover, in the jail 2 context “the Supreme Court has treated medical care claims substantially the same as other 3 conditions of confinement violations including failure-to-protect claims.” Gordon v. Cty. of 4 Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). Accordingly, the Court concludes that the 5 Youngberg professional judgment standard applies when evaluating Townsend’s assertion that he 6 was deprived of the constitutional right to adequate mental health care during the 5150 hold. The 7 Court emphasizes, however, that even if Townsend can establish a violation of his constitutional 8 rights under the Youngberg professional judgment standard, he cannot prevail on his claim against 9 Telecare unless he also establishes that a Telecare policy was the “moving force” behind the 10 violation and that the Telecare policy amounted to “deliberate indifference” to his constitutional 11 rights. See Gordon, 6 F.4th at 973. The latter elements of Monell liability are discussed 12 separately, below. 13 Telecare contends that Townsend cannot establish the asserted constitutional violation, 14 because licensed mental health professionals at the CSP released the 5150 hold. Telecare points to 15 its Policy 1.4.4.1, dated January 14, 2014 and titled “Release of 5150 Holds.” See Vitacolonna 16 Decl. Exh. M, ECF 91-1. That policy provides that a 5150 hold may be released by either a 17 Licensed Psychologist or a Psychiatrist, or by two concurring Licensed Mental Health 18 Professionals. See id. The latter category includes individuals licensed in nursing social work, 19 marriage and family counseling. A Licensed Mental Health Professional “may be of a variety of 20 disciplines, e.g. Social Work, Psychology, MFT, Nursing, Psychiatry, etc.” Id. “In cases where a 21 Psychiatrist has chosen to continue a hold, only a Psychiatrist will be able to, after his/her 22 evaluation, discontinue that hold.” Id. It is undisputed that two Licensed Mental Health 23 Professionals, RN Ferguson and MFT Morel, concurred in the decision to release Townsend from 24 the 5150 hold as required under Policy 1.4.4.1. Telecare also submits the declaration of its 25 medical expert, Marc A. Cohen, M.D., M.S., who states that the decision of RN Ferguson and 26 MFT Morel was within the applicable standard of care. See Vitacolonna Decl. Exh. T at 61-62, 27 ECF 91-2. This evidence is sufficient to meet Telecare’s initial burden of proving that no 1 evidence from which a jury could find that a constitutional violation did occur. 2 Townsend directs the Court to Telecare’s Policy 2.1.7, dated July 1, 2014 and titled 3 “Psychiatry Services.” See Scruggs Decl. Exh. 1 at TC 000888-000889, ECF 97. That policy 4 provides that “[a] psychiatrist is available to the CSP 24 hours a day, 7 days a week” by phone 5 “for staff consultation.” Id. The policy provides further that “[s]taff shall consult with the 6 psychiatrist in the following cases . . . When mental health staff believe a client should be released 7 from a legal hold.” Id. (emphasis added). Townsend also cites to Telecare’s Policy 2.2.1a, dated 8 January 31, 2017 and titled “Clients Referred to CSP Following Behavioral Interventions.” See 9 Scruggs Decl. Exh. 1 at TC 000575, ECF 97. The policy establishes certain procedures that must 10 be followed “[w]henever a client who has experienced a behavioral intervention by an outside 11 provider, Emergency Department, and/or law enforcement (i.e. restraints, tazing, rubber bullets, 12 SWAT) is referred to the CSP.” Id. Under those circumstances, “[i]f CSP Assessments fail to 13 demonstrate that the client currently meets criteria for a legal hold OR that the client does not meet 14 Medical Necessity for Inpatient Treatment, staff will consult with the Psychiatrist On Call prior to 15 releasing the client.” Id. (emphasis added). 16 Townsend submits the opinions of his medical experts, Richard Hayward, Ph.D., and Scott 17 Eliason, M.D., both of whom state that release of a 5150 hold without consultation with a 18 psychiatrist or clinical psychologist falls below the standard of care in California. See Scruggs 19 Decl. Exh. 12 at 6-7, ECF 97; Scruggs Decl. Exh. 13 at 10, ECF 97. Drs. Hayward and Eliason 20 also opine that had a psychiatrist been consulted, such psychiatrist would not (if acting within the 21 standard of care) have released Townsend from the 5150 hold without further care. See Scruggs 22 Decl. Exh. 12 at 8; Exh. 13 at 11. Finally, Townsend provides the deposition testimony of 23 Telecare’s Chief Medical Officer, Kurt Eller, M.D., who conceded that Policy 2.1.7 applied to the 24 Santa Cruz County CSP in February 2017, when the 5150 hold at issue in this case occurred. See 25 Scruggs Decl. Exh. 4 at 16:11-15, ECF 97. Eller also testified that Policy 2.2.1a was created for 26 the Santa Cruz County CSP and remains in effect. See id. at 11:16-13:16. 27 Based on Townsend’s evidence, a reasonable jury could find that the standard of care 1 based solely on the concurrence of an RN and a MFT was “such a substantial departure from 2 accepted professional judgment, practice, or standards” as to rise to the level of a constitutional 3 violation under the Youngberg professional judgment standard. Ammons, 648 F.3d at 1027 4 (quoting Youngberg, 457 U.S. at 323). 5 ii. Telecare Policies and Practices 6 In order to hold Telecare liable for the asserted constitutional violation, Townsend must 7 show that the CSP staff’s conduct was pursuant to one or more Telecare policies. “[P]olicies can 8 include written policies, unwritten customs and practices, [or] failure to train municipal employees 9 on avoiding certain obvious constitutional violations.” Benavidez, 993 F.3d at 1153. Townsend 10 asserts that it was the staff’s established practice to release a 5150 hold based on evaluations 11 performed by lower level staff such as registered nurses and family therapists, without 12 consultation with a psychiatrist. He also asserts that Telecare failed to train staff regarding its own 13 written policies requiring a psychiatric consultation before release of a 5150 hold. Telecare does 14 not deny that its staff’s practice was to release a 5150 hold based on the concurrence of two 15 licensed professionals who were not psychiatrists. Nor does Telecare deny that it failed to train its 16 staff that a psychiatric consultation was required for release of a 5150 hold. 17 iii. Deliberate Indifference 18 Next, the Court addresses whether the record evidence would support a finding that these 19 practices amounted to objective deliberate indifference to the constitutional rights of persons 20 brought to CSP on 5150 holds. To establish the objective deliberate indifference necessary to 21 impose liability under Monell, Townsend must show that Telecare “had actual or constructive 22 knowledge that its practices were substantially certain to cause a constitutional violation.” 23 Sandoval, 985 F.3d at 682. “This standard does not require proof of a prior injury.” Id. “A 24 constitutional injury can be substantially certain to follow from a practice even if an injury has yet 25 to occur.” Id. If this were not the case, every municipal defendant would get one “free pass” for 26 unconstitutional policies or practices. See id. 27 The Court finds that a jury could infer from Telecare’s written policies 2.1.7 and 2.2.1a 1 consultation before releasing an individual from a 5150 hold. See Sandoval, 985 F.3d at 683 (“a 2 jury could infer from the more rigorous policies the County put in place for the sobering and 3 safety cells that it was aware of the importance of ensuring that the nursing staff knew which 4 inmates required medical treatment or observation.”). The Court finds it significant that of the 5 three policies addressing release of a 5150 hold, the two more recent policies require a psychiatric 6 consultation prior to release. Telecare’s Chief Medical Officer was aware of the policies requiring 7 a psychiatric consultation and acknowledged their applicability to the Santa Cruz County CSP. 8 On this record, a jury reasonably could find that the CSP staff’s practice of releasing 5150 holds 9 without a psychiatric consultation, and Telecare’s failure to train CSP staff regarding Telecare’s 10 written policies that required a psychiatric consultation for release of a 5150 hold, go beyond mere 11 negligence and constitute deliberate indifference to the serious mental health needs of individuals 12 placed on 5150 holds. 13 iv. Moving Force 14 Finally, the Court addresses whether the evidence would support a finding that Telecare’s 15 practices were the “moving force” behind the asserted constitutional violation. To establish that a 16 policy or practice is the “moving force” behind a constitutional violation, a plaintiff must 17 demonstrate a “direct causal link” between the policy or practice and the constitutional 18 deprivation. See Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997). 19 The Ninth Circuit has characterized this question as “whether there is a ‘direct causal link’ 20 between the [municipality’s] practice” and “[plaintiff’s] injuries.” See Sandoval, 985 F.3d at 681 21 (9th Cir. 2021). 22 It is undisputed that Nurse Ferguson and MFT Morel followed established CSP practice 23 when releasing Townsend from the 5150 based on the concurrence of two health care 24 professionals below the level of psychiatrist. Townsend submits the deposition testimony of 25 Nurse Ferguson and MFT Morel, showing that neither was aware of the written Telecare policies 26 requiring a psychiatric consult before release of a 5150 hold. See Scruggs Exh. 2 at 63:20-65:7; 27 Exh. 3 at 83:24-85:15, 89:15-90:4. Under these circumstances, a jury could find that the staff’s 1 that a psychiatric consultation is required, were the moving forces behind the asserted 2 constitutional violation. A jury also could find that had a psychiatric consultation been obtained, 3 Townsend would not have been released on February 14, 2017, but would have been transferred to 4 the PHF or other inpatient facility, and thus would not have ended up at the Jail where he hanged 5 himself. 6 Accordingly, Telecare’s motion for summary judgment on Claim 1 is DENIED. 7 c. MICRA 8 In its reply brief, Telecare argues for the first time that if the Court does not grant its 9 summary judgment motion on Claim 1, the Court should make a finding that the damages cap 10 imposed by the 1975 Medical Injury Compensation Reform Act (“MICRA”) applies. See Cal. 11 Civ. Code § 3333.2. “Civil Code section 3333.2 was enacted as part of the 1975 Medical Injury 12 Compensation Reform Act (MICRA), to reduce the costs of liability insurance for health care 13 providers.” Barris v. Cty. of Los Angeles, 20 Cal. 4th 101, 108 (1999). The statute provides that 14 “[i]n any action for injury against a health care provider based on professional negligence,” the 15 amount of damages for noneconomic losses may not exceed $250,000. 16 Telecare’s request is not well-taken. As an initial matter, the Court will not consider an 17 issue raised for the first time in a reply brief filed in support of summary judgment. This is 18 particularly true where a ruling in Telecare’s favor would have a significant impact on 19 Townsend’s case, and Townsend had no opportunity to brief the issue. Moreover, Townsend’s 20 theory is that Telecare’s conduct went well beyond professional negligence and rose to the level of 21 a constitutional violation. Telecare has not cited, and the Court has been unable to locate, any case 22 in which a plaintiff’s § 1983 recovery on a Monell claim for deliberate indifference to serious 23 medical or mental health issues was limited by MICRA. The Ninth Circuit recently declined to 24 apply another California state law that would limit damages in § 1983 cases, a statutory provision 25 that “forbids recovery for a decedent’s loss of life.” Valenzuela v. City of Anaheim, 6 F.4th 1098, 26 1101 (9th Cir. 2021) (citing Cal. Civ. Proc. Code § 377.34). The Ninth Circuit held that 27 “[p]rohibiting loss of life damages would run afoul of § 1983’s remedial purpose.” Id. at 1103. In 1 mental health issues likewise would run afoul of the purpose of § 1983. 2 Telecare’s request that the Court find the MICRA cap applicable to Townsend’s § 1983 3 claim is DENIED. 4 2. Claim 2 - ADA 5 With respect to Claim 2, asserted under Title III of the ADA, Townsend claims that 6 Telecare discriminated against him on the basis of his severe mental disability, and failed to 7 accommodate his severe mental disability, when it released the 5150 hold rather than admitting 8 him to the PHF for longer term care. The FAC makes clear that Townsend’s ADA claim against 9 Telecare is asserted under Title III. See FAC ¶¶ 82 (“Telecare and CFMG therefore operate places 10 of public accommodation and are subject to Title III of the ADA.”). “To prevail on a Title III 11 discrimination claim, the plaintiff must show that (1) she is disabled within the meaning of the 12 ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public 13 accommodation; and (3) the plaintiff was denied public accommodations by the defendant because 14 of her disability.” See Molski, 481 F.3d at 730. 15 For purposes of this motion, Telecare does not dispute that Townsend has a mental 16 disability or that Telecare is a private entity that operates a place of public accommodation. 17 However, Telecare asserts that the record is devoid of evidence that Townsend was denied access 18 to its services because of his disability. To the contrary, Telecare points out that the entire purpose 19 of the CSP is to provide services to people with serious medical and mental health issues and that 20 Townsend in fact was provided services. Townsend’s complaint is that he was released from the 21 5150 hold rather than being transferred to an inpatient facility. However, Telecare points to an 22 absence in the record that the decision to release Townsend, and thereby deny him inpatient 23 services in another facility, was because of his mental disability. Telecare also notes that the only 24 remedy available under Title III is injunctive relief, and that Townsend does not seek injunctive 25 relief against Telecare. See Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 26 867 (9th Cir. 2014) (“Damages are not an available remedy to individuals under Title III of the 27 ADA; individuals may receive only injunctive relief.”). As noted above, the moving party may 1 See In re Oracle Corp. Sec. Litig., 627 F.3d at 387. The Court finds that Telecare has met its 2 initial burden with respect to Townsend’s Title III claim, and thus the burden shifts to Townsend 3 to show the existence of disputed facts that would preclude summary judgment. 4 In his opposition, Townsend asserts for the first time that Telecare is liable under Title II of 5 the ADA rather than under Title III, as is alleged in the FAC. The Court declines to consider a 6 claim raised for the first time in opposition to summary judgment. See Pickern v. Pier 1 Imports 7 (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (district court did not abuse its discretion in 8 refusing to consider new ADA claims raised for first time in opposition to summary judgment). 9 Even if the Court were to consider Townsend’s newly asserted Title II claim, however, the 10 analysis would be much the same, as Title II requires the plaintiff to show that the asserted 11 exclusion, denial of benefits, or discrimination was by reason of his disability. See Payan, 2021 12 WL 3730692, at *7. Townsend has not identified any evidence in the record from which a jury 13 could find that Telecare denied him accommodation because of his mental disability. 14 Townsend’s reliance Atayde v. Napa State Hosp., 255 F. Supp. 3d 978 (E.D. Cal. 2017), is 15 misplaced. In Atayde, the question before the district court was whether the plaintiff has pled facts 16 sufficient to state a claim for failure to accommodate under the ADA and Rehabilitation Act. See 17 id. at 1003. The district court held that the plaintiff had alleged sufficient facts to go forward. In 18 the present case, the Court must determine whether Townsend has identified evidence that he was 19 denied public accommodations, or access to benefits, by reason of his disability. Townsend has 20 not done so. Instead, he argues in conclusory fashion that he “was arbitrarily excluded from 21 participation in” the PHF. However, he does not point to any evidence in the record suggesting 22 that the failure to transfer him to the PHF was arbitrary. To the contrary, the records demonstrate 23 that the CSP staff monitored Townsend throughout his stay and that two of the staff concurred in 24 finding that release was appropriate after 34 hours. The fact that the release decision was made by 25 lower level staff when arguably the standard of care required a psychiatric consultation does not 26 render the decision “arbitrary,” and Townsend cites no case to the contrary. 27 The Court concludes that Telecare is entitled to summary judgment with respect to 1 Townsend has abandoned any Rehabilitation Act claim against Telecare by failing to address it in 2 opposition to the motion for summary judgment. 3 Telecare’s motion for summary judgment on Claim 2 is GRANTED. 4 D. CFMG’s Motion 5 CFMG is a private corporation that provides medical care to inmates held at the Jail 6 pursuant to a contract with the County. That contract does not cover mental health care, which is 7 provided to Jail inmates by the County. It appears that Townsend’s only interaction with any 8 CFMG employee while at the Jail was the intake health screening performed by Hannah Miller, 9 R.N., an employee of CFMG. 10 1. Claim 1 – § 1983 11 To prevail on his § 1983 claim against CFMG, Townsend must prove the following 12 elements: (1) he had a constitutional right of which he was deprived; (2) CFMG had a policy; (3) 13 the policy amounted to deliberate indifference to his constitutional right; and (4) the policy was 14 the moving force behind the constitutional violation. See Gordon, 6 F.4th at 973. 15 Townsend claims that he was deprived of the Fourteenth Amendment right to adequate 16 medical care when Miller took at face value his denial of drug use despite contradictory 17 information in his medical chart showing a long history of drug abuse. He asserts that this 18 constitutional deprivation was caused by CFMG’s custom of accepting an inmate’s word 19 regarding drug use, and training to do the same. 20 Unlike Telecare, CFMG does not challenge Townsend’s characterization of it as a state 21 actor for purposes of this motion. However, CFMG argues that it is entitled to summary judgment 22 because “CFMG had no deliberately indifferent policy or practice which is affirmatively linked to 23 his attempted suicide in the jail.” CFMG MSJ at 7, ECF 90. Parsing this assertion, the Court 24 understands CFMG to be challenging the third and fourth elements of Townsend’s Monell claim 25 by arguing that there is no record evidence establishing either “objective deliberate indifference on 26 the part of [CFMG]” or a “direct causal link” between CFMG’s custom and training and 27 Townsend’s injuries. See Sandoval, 985 F.3d at 682. As discussed above, CFMG may meet its 1 Oracle Corp. Sec. Litig., 627 F.3d at 387. The Court finds that CFMG has done so here by 2 highlighting the lack of any record evidence showing that CFMG acted with deliberate 3 indifference to the medical health of Jail inmates with respect to its custom and training regarding 4 intake procedures, or that Miller’s failure to consider the entirety of Townsend’s medical history, 5 rather than taking his word on lack of drug use, caused Townsend’s injuries. The burden thus 6 shifts to Townsend to show that disputed facts preclude summary judgment. 7 Addressing Townsend’s argument on causation first, Townsend’s reasoning goes as 8 follows: had Miller considered the entirety of Townsend’s medical record instead of taking his 9 denial of drug use at face value, she would have noted his prior opioid abuse and would have 10 initiated a Clinical Opiate Withdrawal Scale (“COWS”) assessment. CFMG has a written policy 11 of initiating a COWS assessment for inmates at risk of opioid withdrawal. See Scruggs Decl. Exh. 12 5, ECF 99. Townsend asserts that if Miller had initiated a COWS assessment, he would not have 13 been housed in B unit on RTC, but instead would have been housed in O unit. See Scruggs Decl. 14 Exh. 13 at 42:8-22. Finally, Townsend contends that if he had been housed in O unit, he would 15 have been more closely monitored, and therefore would not have had the opportunity to attempt 16 suicide. 17 The Court finds that speculation as to what would have happened had Miller considered all 18 of the information in Townsend’s chart, and then what would have happened after that, and what 19 would have happened after that is simply too untethered to the record evidence to give rise to a 20 reasonable inference that the alleged unconstitutional policy at issue caused Townsend’s injury. 21 The Court concludes that Townsend has failed to meet its burden of submitting evidence from 22 which a jury could find the required causal link between CFMG’s allegedly unconstitutional 23 custom and training and his injuries. CFMG is entitled to summary judgment on this basis. 24 Having reached that conclusion, the Court need not and does not address CFMG’s additional 25 arguments. 26 CFMG’s motion for summary judgment on Claim 1 is GRANTED. 27 2. Claim 2 - ADA 1 basis of his severe mental disability, and failed to accommodate his severe mental disability. The 2 FAC makes clear that Townsend’s ADA claim against CFMG is asserted under Title III. See FAC 3 ¶¶ 82 (“Telecare and CFMG therefore operate places of public accommodation and are subject to 4 Title III of the ADA.”). In his opposition, Townsend asserts for the first time that CFMG is liable 5 under Title II of the ADA rather than under Title III, as is alleged in the FAC. 6 CFMG is entitled to summary judgment on Claim 2 for the same reasons discussed above 7 in connection with Telecare. CFMG has met its burden on summary judgment by pointing to an 8 absence of evidence in the record from which a jury could find that CFMG discriminated against 9 Townsend, or failed to accommodate him, on the basis of his disability. Townsend has not 10 identified any evidence in the record from which a jury could find for Townsend on this point. 11 Townsend has abandoned any Rehabilitation Act claim against CFMG by failing to address it in 12 opposition to the motion for summary judgment. 13 CFMG’s motion for summary judgment on Claim 2 is GRANTED. 14 E. County’s Motion 15 1. Claim 1 – § 1983 16 Townsend asserts two bases for § 1983 liability against the County. First, he contends that 17 he was deprived of his constitutional right to adequate mental health care as a result of the 18 County’s own systemic failure in management of the Jail. Second, Townsend contends that the 19 County is liable for any injuries caused by the constitutionally inadequate policies, customs, or 20 training of its contractors, Telecare and CFMG. The County argues that it is entitled to summary 21 judgment on Claim 1 with respect to both theories. The Court addresses these theories in reverse 22 order. 23 a. Contractors’ Policies 24 Townsend seeks to hold the County liable for the asserted constitutional violations arising 25 from the policies of Telecare and CFMG. CFMG is entitled to summary judgment, so its policies 26 are not at issue. With respect to Telecare, the County’s failure to ensure that Telecare provided 27 constitutionally adequate mental health care at the CSP could give rise to liability on the part of 1 cannot avoid its obligations under federal law by contracting with a third party to perform its 2 functions.”). The County did not address this theory of liability in its motion brief. In its reply, 3 the County argues that it cannot be subject to liability based on Telecare’s policies or practices, 4 because the County was not involved in Telecare’s policies and decision-making with respect to 5 the CSP. As discussed above, there is evidence that the County is “so far insinuated into a 6 position of interdependence” with Telecare that Telecare may be considered a state actor under the 7 governmental nexus text. 8 On the merits of Townsend’s claims arising from his 5150 hold, the County argues that § 9 5150 does not create a liberty interest, and thus release from a § 5150 hold cannot amount to a 10 constitutional violation. Like Telecare, the County relies on Cotton to support this argument. For 11 the reasons discussed above in connection with Telecare’s motion, it is the Court’s view that 12 Cotton is factually and legally distinguishable from the present case and thus that its reasoning 13 does not apply here. 14 To the extent the County seeks summary judgment on Claim 1 with respect to the policies 15 and practices of Telecare, that motion is DENIED. 16 b. County’s Own Policies 17 Turning back to Townsend’s § 1983 claim grounded in the County’s own policies with 18 respect to the Jail, the County argues that it is entitled to summary judgment on the basis that a 19 municipality cannot be held liable under Monell unless an individual employee of the municipality 20 also is named as a defendant. As Townsend points out in his opposition, that statement of the law 21 is plainly incorrect. In discussing Supreme Court authority on this point, the Ninth Circuit has 22 observed: “In City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L.Ed.2d 412 (1989), 23 the Supreme Court recognized that the city could be held independently liable under § 1983 for 24 failure to train its police officers even though no individual defendants were sued.” Fairley v. 25 Luman, 281 F.3d 913, 917 (9th Cir. 2002). 26 Next, the County appears to argue that it cannot be liable under Monell unless Townsend 27 identifies a prison official who knew of and disregarded a substantial risk to him. The County’s 1 Indifference Against Any County Involved Person.” County MSJ at 15, ECF 94. However, 2 because Townsend asserts only Monell claims, he need not show a culpable state of mind with 3 respect to any individual Jail staff. Instead, Townsend must show that the asserted constitutional 4 violation was caused by one or more County policies. See Sandoval, 985 F.3d at 682. Moreover, 5 the policies in question must amount to objective deliberate indifference to the medical needs of 6 the Jail population. See id. 7 To restate the elements of Monell liability once again, to prevail against the County 8 Townsend must prove: (1) he had a constitutional right of which he was deprived; (2) the County 9 had a policy; (3) the policy amounted to deliberate indifference to his constitutional right; and (4) 10 the policy was the moving force behind the constitutional violation. See Gordon, 6 F.4th at 973. 11 The County argues that “Plaintiff Cannot Show a Custom or Policy Led to Any Arguable 12 Constitutional Violation.” County MSJ at 20, ECF 94. According to the County, Townsend has 13 done nothing more than identify several unrelated incidents of in-custody suicides, and has not 14 identified any particular policy that was the moving force behind his attempted suicide. The 15 County asserts that it provides comprehensive and statutorily compliant mental health services to 16 inmates, providing copies of numerous policies on intake, booking, inmate classification, mental 17 health evaluations, and suicide prevention. See Blechman Decl. Exh. Z, ECF 94-2. This evidence 18 is sufficient to meet the County’s initial burden to show that Townsend cannot establish a 19 constitutionally deficient policy. The burden thus shifts to Townsend to demonstrate that there are 20 disputed facts with respect to the constitutionality of the County’s policies. 21 Townsend asserts that his deprivation of the right to constitutionally adequate medical and 22 mental health care was not the result of actions of the individual correctional officers at the jail, 23 but rather as a result of “the collective inaction” of the Jail staff as a whole. This is a viable theory 24 of Monell liability under Ninth Circuit law. See Fairley, 281 F.3d at 917. Townsend’s jail expert, 25 Gary Raney, has identified multiple systemic problems at the Jail that, combined, could be found 26 constitutionally deficient. See Scruggs Decl. Exh. 11, ECF 103. According to Raney, the Jail 27 screening process was insufficient, there were insufficient processes in place for sharing of 1 classifications. See id. A jury could conclude from this evidence that there was a breakdown in 2 the effective functioning of the Jail that resulted in the failure to transmit the arresting officer’s 3 knowledge that Townsend had ingested heroin to Jail screening personnel; screening personnel’s 4 failure to consider all relevant information in Townsend’s chart; and a failure to communicate 5 prior suicidal ideation and drug use to classification officers. 6 The County argues that Townsend cannot establish causation. However, a jury could 7 conclude that absent the asserted systemwide failure of policies and training, Townsend’s request 8 to be housed in a single cell, RTC, would not have been honored. Similarly, a jury could find that 9 had Dr. Friedman been given more training, she might have spent more than one minute on his 10 mental health assessment and placed him in a suicide cell. In the Court’s view, these are 11 reasonable inferences that may be drawn from Townsend’s evidence of a systemic failure. These 12 inferences are distinguishable from the chain of speculation underlying Townsend’s theory of 13 liability against CFMG grounded in Miller’s failure to consider the drug information on his chart, 14 because Townsend asserts that the systemic failure of adequate Jail policies as a whole led to his 15 injurie. 16 The County argues that Townsend cannot established that the asserted systemic failure is 17 the result of deliberate indifference on the part of the County. Townsend submits expert opinions 18 of a forensic psychiatrist, a correctional psychologist, and a jail expert, all of whom opine that the 19 County had notice of the constitutional inadequacies of the Jail policies and procedures. See 20 Scruggs Decl. Exhs. 4, 7, 11, ECF 103. The County’s objections to those expert opinions is 21 OVERRULED. While the Court agrees that some portions of the reports contain improper 22 opinions regarding the ultimate legal issues, the Court has not considered those portions. 23 However, a jury could find, based on the admissible portions of these expert opinions, that the 24 County had notice of the deficiencies in its policies, procedures, and training, and was deliberately 25 indifferent to the serious medical and mental health needs of Jail inmates. 26 The County’s motion for summary judgment on Claim 1 is DENIED. 27 2. Claim 2 – ADA and Rehabilitation Act 1 the basis of his severe mental disability, and failed to accommodate his severe mental disability. 2 || this claim is brought under Title II and the Rehabilitation Act. See FAC 9§ 81 (“Defendant 3 || County is therefore liable under Title II of the ADA for the unlawful acts of its employees as well 4 as its private-entity contractors Telecare and CFMG.”); 84 (“Defendant County receives federal 5 assistance and funds, and is therefore subject to the Rehabilitation Act.”). 6 The County is entitled to summary judgment on Claim 2 for the same reasons discussed 7 above in connection with Telecare and CFMG. The County has met its burden on summary 8 || judgment by pointing to an absence of evidence in the record from which a jury could find that the 9 County discriminated against Townsend, or failed to accommodate him, on the basis of his 10 || disability. Townsend has not identified any evidence in the record from which a jury could find 11 for him on this point. 12 The County’s motion for summary judgment on Claim 2 is GRANTED. 5 13 IV. ORDER 14 (1) Telecare’s motion for summary judgment or, in the alternative, partial summary 3 15 judgment is GRANTED as to Claim 2 and DENIED as to Claim 1; a 16 (2) CFMG’s motion for summary judgment or, in the alternative, partial summary 3 17 judgment is GRANTED as to Claim 1 and Claim 2; 18 (3) The County’s motion for summary judgment or, in the alternative, partial summary 19 judgment is GRANTED as to Claim 2 and DENIED as to Claim 1; and 20 (4) This order terminates ECF 90, 91, and 94. 21 / i 22 || Dated: September 1, 2021 MM ty) BETH LABSON FREEMAN 23 United States District Judge 24 25 26 27 28