Fonseca v. Kaiser Permanente Medical Center Roseville, et al.

Filing 48

ORDER signed by District Judge Kimberly J. Mueller on 5/13/16 ORDERING the temporary restraining order currently in effect REMAINS IN PLACE until the close of business on Friday, May 20, 2016, at which point it will be dissolved. The motion for a preliminary injunction is DENIED. This order resolves ECF Nos. #31 & #33 . (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JONEE FONSECA,

12
13
14
15
16

No. 2:16-cv-00889-KJM-EFB

Plaintiff,
v.

ORDER

KAISER PERMANENTE MEDICAL
CENTER ROSEVILLE, et al.,
Defendants.

17
18

Approximately one month ago, doctors at a Kaiser Permanente hospital in

19

Roseville, California determined that two-year-old Israel Stinson had suffered the irreversible

20

cessation of all functions of his entire brain, including the brain stem. Under California law, this

21

determination means Israel has suffered brain death and is no longer alive. But because Israel’s

22

heart is still beating and he is still breathing, with the support of a ventilator and careful, ongoing

23

medical intervention, Israel’s mother, Jonee Fonseca, asks this court to prohibit Kaiser from

24

ending its life-support efforts. She argues California’s definition of “death” violates the United

25

States Constitution and deprives both her and Israel of due process. She also claims the

26

defendants’ actions have violated the California Constitution and the federal Emergency

27

Treatment and Active Labor Act. She names Kaiser, one of its physicians, and the Director of the

28

California Department of Health as defendants, and she requests a preliminary injunction to
1

1

maintain and improve Israel’s condition during this lawsuit. Although Kaiser and Ms. Fonseca

2

have been attempting to reach a mediated resolution to accomplish Ms. Fonseca’s goal of

3

transporting Israel to a different location, there currently is no concrete proposal identifying either

4

a location that will receive Israel or a method of transport. The court therefore is called to resolve

5

the parties’ legal disputes.

6

To this end, the court held a hearing on the preliminary injunction request on May

7

11, 2016. Kevin Snider, Matthew McReynolds, and Alexandra Snyder appeared for Ms. Fonseca,

8

and Jason Curliano appeared for Kaiser and Michael Myette, M.D. Ashante Norton and Ismael

9

Castro appeared and observed on behalf of Karen Smith, M.D., the Director of California’s

10

Department of Public Health.

11

I.

DETAILED BACKGROUND

12

On April 1, 2016, Ms. Fonseca took Israel to a local emergency room. Fonseca

13

Decl. ¶ 1, ECF No. 3-2. He had displayed symptoms of an asthma attack. Id. He was transferred

14

to the pediatric unit at the hospital for the University of California, Davis, and his condition

15

stabilized at least somewhat. Id. ¶¶ 1–2. Later the same day, however, after arriving at U.C.

16

Davis, his condition worsened, he went into cardiac arrest, and he fell unconscious. See id.

17

¶¶ 3-5. Doctors attempted to revive him, and then used an extracorporeal membrane oxygenation

18

(ECMO) machine to provide cardiac and respiratory support. Id. ¶¶ 5–7. Within a few days, his

19

heart and lungs were functioning again on their own, but he requires a ventilator to breathe. See

20

id. ¶¶ 9–14. A doctor determined Israel had suffered brain death; he was therefore no longer alive

21

within the meaning of the California Uniform Determination of Death Act (CUDDA), Cal. Health

22

& Safety Code § 7180 et seq.1 See id. ¶ 14; First Am. Compl. ¶¶ 14, 19, ECF No. 1. Israel was

23

then transported to the Kaiser hospital in Roseville, where he has been attended to since April 11,

24
25
26
27
28

1

See Cal. Health & Safety Code § 7180(a) (“An individual who has sustained either
(1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of
all functions of the entire brain, including the brain stem, is dead. A determination of death must
be made in accordance with accepted medical standards.”); see also id. § 7181 (“When an
individual is pronounced dead by determining that the individual has sustained an irreversible
cessation of all functions of the entire brain, including the brain stem, there shall be independent
confirmation by another physician.”).
2

1

2016. Doctors at Kaiser have twice independently confirmed he is brain dead. Fonseca Decl.

2

¶ 13; see also Myette Decl., ECF No. 43-1. The hospital completed its portion of a death

3

certificate, which identifies the date of Israel’s death as April 14, 2016, but other portions of the

4

certificate remain incomplete. See Myette Decl. Ex. B, ECF No. 43-3 (incomplete portions

5

include parents’ names and information about the disposition). In light of its doctors’

6

determinations, Kaiser intends to end life support efforts.

7

Ms. Fonseca believes Israel is not dead because his heart is beating and he is

8

breathing, but if he no longer receives life support, he will then die. First Am. Compl. ¶ 3. She

9

perceives that he responds to her voice and touch, and at times he appears to have taken breaths

10

on his own. See Fonseca Decl., ECF No. 35. She therefore feels an imperative moral and

11

spiritual obligation to ensure life support efforts for her son do not end. Id. ¶ 62.

12

Dr. Michael Myette, M.D. is the Medical Director for the Pediatric Intensive Care

13

Unit at Kaiser in Roseville, the doctor ultimately responsible for Israel’s care, and a defendant in

14

this action. He explains his understanding of Israel’s condition in basic terms: “Israel’s brain is

15

not telling his organs how to function.” Myette Decl. ¶ 5. This means doctors must meticulously

16

monitor and support his condition by adjusting his blood pressure and hormone levels

17

pharmaceutically, providing support with a ventilator, and keeping his body warm with blankets.

18

Id. ¶¶ 5–7. He is receiving only dextrose—sugar—for nutrition, but has not lost weight over the

19

three to four weeks since he was admitted. Id. ¶ 9. Dr. Myette worries that if he fed Israel

20

internally, complications would likely arise, including infection, which would be difficult to

21

detect and combat. Id. ¶ 8. Israel does not respond to any stimulus. Id. ¶¶ 10, 12. Dr. Myette

22

opines that although Ms. Fonseca believes Israel has taken breaths on his own, this is a

23

misreading of the ventilator, which can be artificially triggered. Id. ¶ 14. The movements Israel

24

makes in response to his mother’s touch or voice are reflexes that originate in his spine; they also

25

are triggered by more innocuous and lighter contact, for example, a bump on the side of his bed.

26

Id. ¶¶ 10–12.

27
28

On April 14, 2016, after Kaiser completed its portion of the death certificate,
Ms. Fonseca sought relief from the Placer County Superior Court on Israel’s behalf. See Fonseca
3

1

ex rel. Stinson v. U.C. Davis Children’s Hosp., No. S-CV-0037673 (Placer Cty. Super. Ct. filed

2

Apr. 14, 2016).2 The superior court entered a temporary restraining order (TRO) requiring Kaiser

3

to continue life support, and over a period of about two weeks during which the order was

4

extended twice, Ms. Fonseca and Israel’s biological father, Nathaniel Stinson, attempted

5

unsuccessfully to arrange for Israel’s transfer to another medical facility. See generally Curliano

6

Decl. Exs. A–G, J–K, ECF No. 14-2 to -8 & -11 to -12. On April 29, the state court dismissed

7

Ms. Fonseca’s petition for relief and dissolved the TRO. ECF No. 19-1. The state court found

8

California Health and Safety Code sections 7180 and 7181 had “been complied with.” Id. at 2.

9

On April 28, 2016, the day before the Superior Court’s restraining order was set to

10

finally expire, Ms. Fonseca filed this lawsuit. See Compl., ECF No. 1. Her original complaint

11

alleged claims directly under the U.S. Constitution, the federal Rehabilitation Act, and the

12

Americans with Disabilities Act. The court granted a temporary restraining order until a hearing

13

could be held on Monday, May 2, 2016. ECF No. 9. At the May 2 hearing, the court dismissed

14

the original complaint by bench order, as the complaint’s allegations did not show the court had

15

jurisdiction. Minutes, ECF No. 22; Minute Order, ECF No. 23. The court ordered Ms. Fonseca

16

to file a first amended complaint the next day. Kaiser did not object to an extension of the TRO

17

through May 11, and a hearing was set for that day on a motion for a fully briefed preliminary

18

injunction. The matter was also referred to emergency mediation before a magistrate judge of

19

this court, but as noted the parties have been unable to reach an agreement so as to moot the

20

current motion. Minutes, ECF No. 28.

21

Ms. Fonseca timely filed a first amended complaint, which includes five claims.

22

First, she claims under 42 U.S.C. § 1983 that CUDDA is unconstitutional on its face under the

23

Fifth and Fourteenth Amendments. First Am. Compl. ¶¶ 51–59. CUDDA provides that “death”

24

is not just the cessation of breath and a heartbeat—the prior, historical conception—but also the

25

absence of all functions of the brain and brain stem. Id. ¶ 56. Because the CUDDA provision is

26
2

27
28

The court may take judicial notice of the filings in the state case. See Fed. R. Evid.
201(b) (governing judicial notice); Asdar Grp. v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290
n.1 (9th Cir. 1996) (court filings and orders in related litigation may be subject to judicial notice).
4

1

broader than the historical conception and because it allows for no specific appeal of a death

2

determination, Ms. Fonseca alleges it deprives Israel of due process. Id. ¶¶ 56–57. She asserts

3

this claim against all the defendants: Kaiser, Dr. Myette, and Dr. Smith. See id. ¶¶ 5–6.

4

Ms. Fonseca asks the court to declare CUDDA unconstitutional on its face, id. ¶ 59, and requests

5

Kaiser be ordered to take certain steps to maintain and improve Israel’s condition, id. ¶¶ 47–50.

6

Second, Ms. Fonseca alleges under 42 U.S.C. § 1983 that CUDDA deprives her of

7

due process as Israel’s parent. Id. ¶¶ 60–67. For this independent reason, she claims CUDDA is

8

unconstitutional on its face. Id. ¶ 67. She alleges this claim against all the defendants.

9

Third, Ms. Fonseca alleges Kaiser violated the Emergency Medical Treatment and

10

Active Labor Act (EMTALA), 42 U.S.C. § 1395dd et seq. First Am. Compl. ¶¶ 68–79. Under

11

EMTALA, hospitals with emergency departments must perform appropriate medical screening to

12

determine whether those who come to the hospital asking for treatment have an emergency

13

medical condition. 42 U.S.C. § 1395dd(a). If the hospital discovers a medical emergency, it

14

must examine, treat, and “stabilize” the patient’s condition or, alternatively, transfer the person to

15

another medical facility. See id. § 1395dd(b), (e). Ms. Fonseca alleges Kaiser has not and will

16

not appropriately stabilize Israel’s condition if it removes life support, and she alleges Kaiser has

17

not otherwise made an appropriate effort to transfer Israel to another facility. First Am. Compl.

18

¶¶ 71–75. She asks for declaratory relief, money damages, and an injunction ordering Kaiser to

19

comply with EMTALA and stabilize Israel’s condition. Id. ¶¶ 77–79.

20

Fourth, Ms. Fonseca alleges under 42 U.S.C. § 1983 that Kaiser and Dr. Myette

21

have deprived her and Israel of their rights to privacy under the Fourth Amendment. Id. ¶¶ 80-84.

22

She refers specifically to her right and Israel’s right to have control over Israel’s healthcare.

23

Fifth, Ms. Fonseca alleges Kaiser and Dr. Myette have violated her right and

24

Israel’s right to privacy and autonomy under Article I of the California Constitution. Id.

25

¶¶ 85-88.

26

Ms. Fonseca’s motion for a preliminary injunction was filed on May 6, 2016. See

27

Mot. Prelim. Inj., ECF No. 33. She requests relief at this stage on the basis of her claims under

28

the EMTALA and federal Constitution, but not under her California constitutional claim. Kaiser
5

1

and Dr. Myette filed an opposition on May 10, 2016, ECF No. 43, and the court allowed reply

2

argument at the hearing on May 11, 2016.

3

II.

JURISDICTION

4

Federal courts are courts of limited jurisdiction. Therefore, as in every case, the

5

court first asks whether it has jurisdiction to hear and decide the dispute before it. As explained

6

below, the court is satisfied it has jurisdiction over the claims and defendants, although federal

7

question jurisdiction does not adhere to Kaiser and Dr. Myette based on the civil rights claims.

8
9

A.

Rooker-Feldman
As a preliminary matter, in the May 2 hearing, the court voiced its concern that it

10

lacks jurisdiction over this action under Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and

11

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), two cases that form the

12

basis of what courts call the Rooker-Feldman doctrine. On further review and in light of the

13

allegations in the First Amended Complaint, the court is satisfied this doctrine does not deprive it

14

of all jurisdiction over this case.

15

Under the Rooker-Feldman doctrine, federal district courts are without jurisdiction

16

to hear direct and de facto appeals from the judgments of state courts. Cooper v. Ramos,

17

704 F.3d 772, 777 (9th Cir. 2012); Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003). To

18

determine whether an action functions as a de facto appeal, the court “pay[s] close attention to the

19

relief sought by the federal-court plaintiff.” Id. at 777–78 (quoting Bianchi v. Rylaarsdam,

20

334 F.3d 895, 900 (9th Cir. 2003)) (emphasis omitted). “It is a forbidden de facto appeal under

21

Rooker–Feldman when the plaintiff in federal district court complains of a legal wrong allegedly

22

committed by the state court, and seeks relief from the judgment of that court.” Id. (quoting Noel,

23

341 F.3d at 1163). However, the Rooker-Feldman doctrine does not preclude a plaintiff from

24

bringing an “independent claim” that, though raising similar or even identical to issues, was not

25

the subject of a previous judgment by the state court. Id. at 778.

26

A review of Feldman itself is instructive here. In Feldman, two graduates of

27

unaccredited law schools petitioned a local court for a waiver to permit them to sit for the bar.

28

460 U.S. at 466. After the local court rejected their claims, the graduates filed suit in federal
6

1

court. Id. at 468. The Supreme Court deemed the action a de facto appeal to the extent it sought

2

review of the local court’s denial. Id. at 482. On the other hand, as recounted by the Ninth

3

Circuit in Noel, the Supreme Court allowed the “challenge to the local court’s legislative act of

4

promulgating its rule” prohibiting the graduates from sitting for the bar. Noel, 341 F.3d at 1157.

5

This aspect of the lawsuit “was a challenge to the validity of the rule rather than a challenge to an

6

application of the rule.” Id.; see also Feldman, 460 U.S. at 487.

7

In some instances, the independent constitutional claims a plaintiff asserts in

8

federal court may not be possible to disentangle from a state court’s earlier decision. See

9

Feldman, 460 U.S. at 482 n.16. If that is the case, then the federal district court may not review

10

the state court decision. Id. This was true of only some of the claims before the Feldman Court;

11

other claims could be separated from the de facto appeal, for example the graduates’ claims that

12

the District of Columbia’s law-school requirement discriminated against them and impermissibly

13

delegated authority to the American Bar Association to regulate the bar. Id. at 487–88.

14

Here, Ms. Fonseca challenges CUDDA’s constitutionality generally. For the most

15

part, she does not challenge CUDDA’s particular application. See Mot. Prelim. Inj. at 12 (“At

16

this stage of the proceedings, Plaintiff is not asserting that [Kaiser] has misread or misapplied

17

CUDDA.”); but see, e.g., First Am. Compl. ¶ 32; Byrne Decl. ¶¶ 5, 12–15, ECF No. 36. Her

18

constitutional claims here were not presented to the state superior court and except for the

19

mandatory aspects of the injunction she proposes, discussed toward the end of this order, the

20

relief she now seeks does not undermine the factual or legal conclusions the state court reached.

21

The same is true of her non-constitutional claims; none was before the superior court.

22

Ms. Fonseca neither asserts legal error by the state court nor seeks relief from a state court

23

judgment. If Ms. Fonseca can otherwise establish this court’s subject matter jurisdiction over her

24

claims, the Rooker–Feldman doctrine does not prevent her case from going forward.

25

/////

26

/////

27

/////

28

/////
7

1

B.

2

Standing
Next is the question of standing. Given Ms. Fonseca’s status as Israel’s mother

3

and general guardian, she may litigate here on his behalf. See Fed. R. Civ. P. 17(c) (a general

4

guardian may sue on behalf of a minor or incompetent person); Doe ex rel. Sisco v. Weed Union

5

Elementary Sch. Dist., No. 13-01145, 2013 WL 2666024, at *1 (E.D. Cal. June 12, 2013) (“Rule

6

17(c)(1)(A) permits a ‘general guardian’ to sue in federal court on behalf of a minor, and a parent

7

is a guardian who may so sue.” (citation and quotation marks omitted)). This presupposes that

8

the rules of parental guardianship govern equally the relationship between a parent and a child

9

whose death is disputed. Whatever the correct procedural method of representation, for purposes

10

of this motion Ms. Fonseca may represent Israel’s interests in this case. See, e.g., Lopez v. Cty. of

11

L.A., No. 15-01745, 2015 WL 3913263, at *9 (C.D. Cal. June 25, 2015) (survival claims under

12

Constitution by parent); see also Williams v. Bradshaw, 459 F.3d 846, 848 (8th Cir. 2006)

13

(“Federal courts are to apply state law in deciding who may bring a § 1983 action on a decedent’s

14

behalf.”); Cal. Civ. Proc. Code § 377.10, .20, .30 (governing survival claims); Cal. Prob. Code

15

§§ 6401–02 (who may bring a survival action). She has standing. Her request to be appointed as

16

Israel’s guardian ad litem is therefore denied as moot. See Pet., ECF No. 31.

17

C.

18
19

Federal Question Jurisdiction and Action Under Color of Law
Turning now to the complaint’s substantive claims, Ms. Fonseca proposes three

jurisdictional pillars to support her action in federal court.

20

1.

21

First, she cites her EMTALA claims and 28 U.S.C. § 1331, the latter of which

EMTALA and § 1331

22

establishes this court’s jurisdiction over all claims arising under the Constitution, laws, and

23

treaties of the United States. This court’s jurisdiction to evaluate her EMTALA claim, which

24

arises under a federal statute, is beyond dispute, as is this court’s supplemental jurisdiction to

25

consider any state-law claims that are a part of the same case or controversy. See 28 U.S.C.

26

§ 1367(a).

27
28
8

1

2.

2

This leaves Ms. Fonseca’s claims under § 1983, a broad federal civil rights statute.

42 U.S.C. § 1983

3

Any claim under that section must concern the defendants’ actions under color of law. Lugar v.

4

Edmondson Oil Co., 457 U.S. 922, 946 (1982). State action is a “jurisdictional requisite” in any

5

claim under § 1983. Polk Cty. v. Dodson, 454 U.S. 312, 315 (1981). In this regard, Ms. Fonseca

6

notes her addition of Dr. Smith as a defendant. Dr. Smith is alleged to be the Director of the

7

California Department of Public Health and is sued in her official capacity under 42 U.S.C.

8

§ 1983. First Am. Compl. ¶ 6.

9

a. Dr. Smith
“Claims under § 1983 are limited by the scope of the Eleventh Amendment.”3

10
11

Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997). Specifically, states and

12

state governmental entities are not “persons” within the meaning of § 1983. Will v. Michigan

13

Dep't of State Police, 491 U.S. 58, 70 (1989). The Supreme Court has, however, interpreted the

14

Eleventh Amendment as allowing federal courts to grant prospective injunctive relief against state

15

officials acting “under color of law.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247,

16

255 (2011); Ex parte Young, 209 U.S. 123, 159–60 (1908). In short, “the Eleventh Amendment

17

does not generally bar declaratory judgment actions against state officers.” Nat’l Audubon Soc’y,

18

Inc. v. Davis, 307 F.3d 835, 847 (9th Cir. 2002), opinion amended on denial of reh’g, 312 F.3d

19

416 (2002). This court therefore has jurisdiction to consider Ms. Fonseca’s request for

20

prospective declaratory relief against Dr. Smith, which targets an allegedly ongoing violation of

21

federal constitutional law in the form of her application of CUDDA in the provision of procedures

22

related to issuance of death certificates.

23

b. Kaiser and Dr. Myette

24
25

Kaiser and Dr. Myette, by contrast, have not in any way supported by the record
acted “under color of law.” Kaiser is a private hospital, and Dr. Myette is a private person.

26
3

27
28

“The judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by citizens of another
state, or by citizens or subjects of any foreign state.” U.S. Const. amend. XI.
9

1

“[P]rivate parties are not generally acting under color of state law,” Price v. State of Haw.,

2

939 F.2d 702, 707–08 (9th Cir. 1991), “no matter how discriminatory or wrongful” their actions

3

may be, Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and quotation marks

4

omitted). But “[u]nder familiar principals, even a private entity can, in certain circumstances, be

5

subject to liability under section 1983.” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950,

6

954 (9th Cir. 2008) (en banc). The basic question a court must answer is whether the private

7

person’s conduct “may be fairly characterized as ‘state action’” or “fairly attributable to the

8

State.” Lugar, 457 U.S. at 924, 937. The phrase “under color of law” for purposes of a § 1983

9

claim has the same meaning as the phrase “state action” for purposes of the Fourteenth

10

Amendment. Id. at 928.

11

At the outset, the Supreme Court has taken care to distinguish two related elements

12

of “fair attribution” in a § 1983 claim: the plaintiff must show both that a “state action” has

13

occurred and that the defendants acted “under color of law.” Id. at 937; Flagg Bros., Inc. v.

14

Brooks, 436 U.S. 149, 156 (1978). Here, a state has acted: California passed CUDDA, and the

15

California Department of Public Health imposes procedural requirements related to the issuance

16

of a death certificate, including for people who have suffered brain death under CUDDA. See

17

First Am. Compl. ¶¶ 6, 21; see also Am. Mfrs., 526 U.S. at 50 (a private person’s actions “with

18

the knowledge of and pursuant to” a statute shows “state action” occurred (citation and quotation

19

marks omitted)). But these facts do not establish Kaiser’s and Dr. Myette’s action under color of

20

law.

21

Federal courts have often been called on to decide whether doctors and hospitals

22

have acted under color of law. In general, private doctors and hospitals are more commonly

23

found not to be state actors. See, e.g., Babchuk v. Indiana Univ. Health, Inc., 809 F.3d 966,

24

970-71 (7th Cir. 2016); McGugan v. Aldana-Bernier, 752 F.3d 224, 229–31 (2d Cir. 2014), cert.

25

denied, 135 S. Ct. 1703 (2015); Wittner v. Banner Health, 720 F.3d 770, 775–81 (10th Cir. 2013);

26

Briley v. State of Cal., 564 F.2d 849, 855–56 (9th Cir. 1977) (noting that “private hospitals and

27

physicians have consistently been dismissed from § 1983 actions for failing to come within the

28
10

1

color of state law requirement of this section” and collecting authority).4 This is likely the result

2

of two rules of thumb. First, the Supreme Court has “consistently held that ‘[t]he mere fact that a

3

business is subject to state regulation does not by itself convert its action into that of the State for

4

purposes of the Fourteenth Amendment.” Am. Mfrs., 526 U.S. at 52 (quoting Jackson v. Metro.

5

Edison Co., 419 U.S. 345, 350 (1974), and citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982))

6

(alteration in original). On a related note, even though doctors’ services are “affected with a

7

public interest,” the same may be said of many professions, and this does not automatically

8

convert their every action into an action of the state. See Jackson, 419 U.S. at 354. Second,

9

although doctors and hospitals are often the beneficiaries of state and federal funding, receipt of

10

government funding alone does not make for action under color of law. See Chudacoff v. Univ.

11

Med. Ctr. of S. Nev., 649 F.3d 1143, 1149–50 (9th Cir. 2011) (collecting authority).

12

In addition, the choices a doctor or a hospital must make are often matters of

13

discretion, informed by expertise, training, and the specifics of the patient presented to them, and

14

for this reason, courts often hesitate to find a doctor’s actions fairly attributable to the state. See,

15

e.g., Blum, 457 U.S. at 1008 (decisions that “ultimately turn on medical judgments made by

16

private parties according to professional standards that are not established by the State” undercut

17

claims of action under color of law); Collyer v. Darling, 98 F.3d 211, 232–33 (6th Cir. 1996)

18

(noting the absence of any contractual relationship between the doctors and the state and the

19

“independence with which the doctors completed their tasks”); Pinhas v. Summit Health, Ltd.,

20

894 F.2d 1024, 1034 (9th Cir. 1989) (a decision that “ultimately turned on the judgments made by

21

private parties according to professional standards that are not established by the State,” but

22

flowed from a peer-review process created by statute, was not an action under color of law), aff’d

23

on unrelated question, 500 U.S. 322 (1991).

24
25
26
27
28

At the same time, no categorical rule prevents the mixture of professional
judgment and action under the color of law. See, e.g., West v. Atkins, 487 U.S. 42, 51 (1988)
4

Kaiser previously has been found by another district court not to be a state actor, in a
case challenging California’s statutory scheme governing medical peer review proceedings. See
generally Safari v. Kaiser Found. Health Plan, No. 11-05371, 2012 WL 1669351 (N.D. Cal. May
11, 2012).
11

1

(explaining the court below misread Supreme Court precedent “as establishing the general

2

principle that professionals do not act under color of state law when they act in their professional

3

capacities”). Nevertheless, private doctors and hospitals do not even act under color of state law

4

when they participate in the civil commitment of mentally ill patients. See, e.g., Bass v.

5

Parkwood Hosp., 180 F.3d 234, 243 (5th Cir. 1999) (collecting authority).

6

By contrast, a doctor or hospital is much more likely to have acted under color of

7

law when the hospital is a public hospital, or if it assumed that role for all practical purposes, for

8

example when a doctor contracts with a state to provide medical services to the inmates of a state

9

prison. See generally West, 487 U.S. 42; see also Chudacoff, 649 F.3d at 1150 (citing, inter alia,

10

Woodbury v. McKinnon, 447 F.2d 839, 842 (5th Cir. 1971)). In these situations, the doctor or

11

hospital has “exercised power possessed by virtue of state law and made possible only because

12

the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49 (citation and

13

quotation marks omitted).

14

The Ninth Circuit case of Sutton v. Providence St. Joseph Medical Center,

15

192 F.3d 826 (9th Cir. 1999), provides a helpful framework. In Sutton, the Circuit considered in

16

detail the potential liability of a private defendant under § 1983. It concluded “the mere fact that

17

the government compelled a result does not suggest that the government’s action is “fairly

18

attributable” to the private defendant. Id. at 838. To find otherwise “would be to convert every

19

employer—whether it has one employee or 1,000 employees—into a governmental actor every

20

time it complies with a presumptively valid, generally applicable law, such as an environmental

21

standard or a tax-withholding scheme.” Id. The court emphasized the importance of “something

22

more” between the state and private person: Did the defendant perform a public function? Did

23

the government and defendants act together? Did the government compel or coerce the

24

defendants? Or is there some other “nexus” between the government and the defendants? See id.

25

at 835. The Circuit cited three cases as examples of this nexus: (1) Adickes v. S.H. Kress & Co.,

26

398 U.S. 144 (1970), where the Supreme Court relied on an alleged conspiracy between private

27

and public actors; (2) Lugar, 457 U.S. 922, where the Court relied on official cooperation

28

between the private and public actors; and (3) Moose Lodge No. 107 v. Irvis, 407 U.S. 163
12

1

(1972), where the Court relied on the state’s enforcement and ratification of the private person’s

2

actions. See Sutton, 192 F.3d at 839–41.

3

Here, Ms. Fonseca cites four facts to argue Kaiser’s and Dr. Myette’s

4

determination of death is fairly attributable to the state: (1) “declarations of death are essentially a

5

state-prescribed function”; (2) the defendants acted as “willful participants” in the State’s

6

determination of death; (3) the defendants had “no discretion to entertain independent medical

7

judgment inconsistent with CUDDA’s definition” and participated in a specific, state-defined

8

protocol; and (4) Kaiser received Israel from one public institution, U.C. Davis, and is attempting

9

to transfer him to another public official, the coroner. See Mot. Prelim. Inj. at 6–9.

10

These facts do not show Kaiser and Dr. Myette are state actors. Several relate to

11

the question of whether a “state action” occurred, but not whether the defendants here acted

12

“under color of law.” In other words, it may be that a state normally prescribes the exact criteria

13

for a doctor to check when deciding whether a patient is living, and it may be that Kaiser and Dr.

14

Myette willfully complied with state laws and regulations, but these facts suggest only that a

15

“state action” has occurred, not that Kaiser and Dr. Myette acted under color of law.

16

At most it can be said that California passed a law and that the defendants willfully

17

complied with the law. See, e.g., Cal. Health & Safety Code §§ 102800, 102825 (physicians’

18

obligations related to a death certificate). As Sutter teaches, state compulsion does not establish a

19

private defendant’s actions under color of law; “something more” is necessary. Sutton, 192 F.3d

20

at 835. If the facts here were enough to show Kaiser and Dr. Myette had acted under color of

21

law, then a private person would act under color of law every time he or she obeyed laws or

22

regulations of his or her own accord, which cannot be. See Am. Mfrs., 526 U.S. at 52. Consider a

23

lawyer who studies the California Code of Civil Procedure, or a driver who fills out the

24

paperwork to apply for a driver’s license. California defines its rules of procedure and a state

25

agency creates the forms the driver fills out, but the lawyer is not a state actor when he follows

26

the rules, and a driver is not a state actor when he fills out and turns in the form. Something more

27

is required. The defendants suggest an analogy to a priest who completes a marriage license,

28
13

1

Opp’n at 1, which, though unsupported by citation to a specific authority, illustrates the same

2

point.

3

The fact that Kaiser received and would transfer Israel to and from a state

4

institution does not show the private defendants acted under color of law. It is a coincidence that

5

Israel was transferred from a university hospital, and the presence of state entities in this respect

6

cannot make for action under color of law.

7

Professional expertise, training, and discretion also show California played at most

8

a minor role in Kaiser’s and Dr. Myette’s actions. CUDDA describes brain death in general

9

terms—the “irreversible cessation of all functions of the entire brain, including the brain stem”—

10

and it specifically refers to “accepted medical standards.” See Cal. Health & Safety Code § 7180.

11

California has not dictated which tests must be performed, how, when, or by whom. These

12

specifics are all matters of private medical expertise and discretion. They are the subject of

13

guidelines published by professional medical organizations. See, e.g., Am. Acad. Pediatrics,

14

Clinical Report—Guidelines for the Determination of Brain Death in Infants and Children

15

(2011), ECF No. 36-1. The determination of Israel’s brain death “ultimately turn[ed] on medical

16

judgments made by private parties according to professional standards” that California did not

17

establish. Blum, 457 U.S. at 1008.

18

Upon close review, this case contrasts with the others in which doctors and

19

hospitals have been found to act under color of law. For example, drawing from those cited

20

above, in West v. Atkins, the Supreme Court held that a doctor employed part-time by the state

21

acted under color of law when he treated inmates in a state prison. See generally 487 U.S. 42. In

22

Chudacoff v. University Medical Center of South Nevada, the Ninth Circuit described the

23

defendant hospital as public “through and through,” because it was “controlled and managed” by

24

the state and the defendants’ authority “flow[ed] directly from the state.” 649 F.3d at 1150.

25

This case also contrasts with the general body of decisions based on action under

26

color of law that occurred outside the hospital context. In the Lugar case on which plaintiff has

27

relied, for example, the Supreme Court considered whether a private defendant who used an ex

28

parte state procedure to obtain an order sequestering the plaintiff’s property could be liable as a
14

1

state actor. 457 U.S. at 924–25. The Court reaffirmed that a private person could be held liable

2

as a state actor in that situation, noting that the state’s involvement was “overt” and “official” and

3

that the private person participated jointly with the state in a seizure of property. Id. at 927–28,

4

941; see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 290–91

5

(2001) (“[T]he association in question here includes most public schools located within the State,

6

acts through their representatives, draws its officers from them, is largely funded by their dues

7

and income received in their stead, and has historically been seen to regulate in lieu of the State

8

Board of Education’s exercise of its own authority.”).

9

Ms. Fonseca has not cited any case where a private doctor working at a private

10

hospital providing treatment to a private person was found to have acted under color of law. The

11

court’s independent research has likewise produced no example. This is a case of private action,

12

not public action. The § 1983 claims against Kaiser and Dr. Myette cannot support

13

Ms. Fonseca’s request for a preliminary injunction.

14

In determining whether an injunction should issue, therefore, the court considers

15

only the EMTALA claim against Kaiser, which appears to be the claim on which plaintiff

16

primarily relies, as well as the § 1983 claims against Dr. Smith.

17

III.

18

LEGAL STANDARD
A preliminary injunction preserves the relative position of the parties until a trial is

19

completed on the merits or the case is otherwise concluded. See Univ. of Texas v. Camenisch,

20

451 U.S. 390, 395 (1981). It is an extraordinary remedy awarded only upon a clear showing that

21

the plaintiff is entitled to relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

22

The plaintiff must show she is “likely to succeed on the merits,” “likely to suffer irreparable harm

23

in the absence of the preliminary relief,” “the balance of equities tips in [her] favor,” and “an

24

injunction is in the public interest.” Id. at 20. Alternatively, if a plaintiff cannot demonstrate she

25

is likely to succeed on the merits of her claims, but can show at least (1) that “serious questions”

26

go to the merits of her claims, (2) that the “balance of hardships tips sharply” in her favor, and

27

(3) that the other two parts of the Winter test are satisfied, then a preliminary injunction may be

28

proper nonetheless. Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)
15

1

(quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011))

2

(emphasis in Shell).

3

But if the plaintiff cannot show she has even a “fair chance of success on the

4

merits,” then it does not matter how the other parts of the Winter test may be resolved; “at an

5

irreducible minimum the moving party must demonstrate a fair chance of success on the merits,

6

or questions serious enough to require litigation.” Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th

7

Cir. 2012) (quoting Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2009)) (internal quotation

8

marks omitted).

9

When deciding whether to issue a preliminary injunction, the court may rely on

10

declarations, affidavits, and exhibits, among other things, and this evidence need not conform to

11

the standards that apply at summary judgment or trial. Johnson v. Couturier, 572 F.3d 1067,

12

1083 (9th Cir. 2009); see also Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984)

13

(“The trial court may give even inadmissible evidence some weight, when to do so serves the

14

purpose of preventing irreparable harm before trial”); Rubin ex rel. N.L.R.B. v. Vista Del Sol

15

Health Servs., Inc., 80 F. Supp. 3d 1058, 1072 (C.D. Cal. 2015) (“It is well established that trial

16

courts can consider otherwise inadmissible evidence in deciding whether or not to issue a

17

preliminary injunction.”). “A credibility determination is well within the court’s province when

18

ruling on a preliminary injunction motion . . . .” N.E. England Braiding Co. v. A.W. Chesterton

19

Co., 970 F.2d 878, 884 (Fed. Cir. 1992); accord Oakland Tribune, Inc. v. Chronicle Pub. Co.,

20

Inc., 762 F.2d 1374, 1377 (9th Cir. 1985); 11A Charles A. Wright, et al., Federal Practice &

21

Procedure § 2949 (3d ed. 2013). A district court may also hear oral testimony at a hearing.

22

Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1326 (9th Cir. 1994). Oral testimony is unnecessary,

23

however, if the parties had an adequate opportunity to submit written testimony and argue the

24

matter. Id.

25

IV.

26
27
28

DISCUSSION
A.

EMTALA Claim Against Kaiser
Ms. Fonseca argues that under EMTALA, Kaiser is required to provide

“stabilizing treatment” to Israel until he can be transferred. Mot. Prelim. Inj. at 10–11. She relies
16

1

heavily on the Fourth Circuit’s decision in In re Baby K, 16 F.3d 590 (4th Cir. 1994), discussed

2

below.

3

Congress enacted EMTALA over concerns that “hospitals were dumping patients

4

who were unable to pay for care, either by refusing to provide emergency treatment to these

5

patients, or by transferring the patients to other hospitals before the patients’ conditions

6

stabilized.” Jackson v. East Bay Hosp., 246 F.3d 1248, 1254 (9th Cir. 2001); see H.R. Rep.

7

No. 241, 99th Cong., 1st Sess., Part I, at 27 (1985), reprinted in 1986 U.S. Code Cong. & Admin.

8

News 579, 605. EMTALA provides,

9
10
11
12
13
14
15
16
17
18

In the case of a hospital that has a hospital emergency department,
if any individual (whether or not eligible for benefits under this
subchapter) comes to the emergency department and a request is
made on the individual’s behalf for examination or treatment for a
medical condition, the hospital must provide for an appropriate
medical screening examination within the capability of the
hospital’s emergency department, including ancillary services
routinely available to the emergency department, to determine
whether or not an emergency medical condition (within the
meaning of subsection (e)(1) of this section) exists.
42 U.S.C. § 1395dd(a).
If the hospital determines that the individual has an emergency medical condition,
then the hospital must provide either

19

(A) within the staff and facilities available at the hospital, for such
further medical examination and such treatment as may be required
to stabilize the medical condition, or

20

(B) for transfer of the individual to another medical facility . . . .

21
22

Id. § 1395dd(b). An “emergency medical condition” is defined as

25

a medical condition manifesting itself by acute symptoms of
sufficient severity (including severe pain) such that the absence of
immediate medical attention could reasonably be expected to result
in—(i) placing the health of the individual (or, with respect to a
pregnant woman, the health of the woman or her unborn child) in
serious jeopardy, (ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part . . . .

26

Id. § 1395dd(e)(1)(A). “To stabilize” and “stabilized” are also specifically defined:

27

(A) The term “to stabilize” means, with respect to an emergency
medical condition . . . , to provide such medical treatment of the

23
24

28

17

1

condition as may be necessary to assure, within reasonable medical
probability, that no material deterioration of the condition is likely
to result from or occur during the transfer of the individual from a
facility . . . .

2
3

(B) The term “stabilized” means, with respect to an emergency
medical condition . . . , that no material deterioration of the
condition is likely, within reasonable medical probability, to result
from or occur during the transfer of the individual from a facility
....

4
5
6
7

Id. § 1395dd(e)(3).
It appears there is no binding or persuasive authority on all fours with this case.

8
9

As noted, Ms. Fonseca analogizes her case to that of the child in Baby K. Mot. Prelim. Inj. at 11.

10

The patient in Baby K was an anencephalic5 infant suffering from respiratory distress. 16 F.3d at

11

592–93. The hospital physicians informed Baby K’s mother that most anencephalic infants die

12

within a few days of birth due to breathing difficulties and other complications, and

13

recommended that Baby K be provided only with supportive care in the form of nutrition,

14

hydration and warmth. Id. at 592. Baby K’s mother and physicians were not able to reach an

15

agreement as to the appropriate care for Baby K; thus, Baby K’s mother transferred her to a

16

nursing home. Id. at 593. After the transfer, Baby K was readmitted to the hospital three times

17

due to breathing difficulties. Id. Each time, after breathing assistance was provided and Baby K

18

was stabilized, she was discharged to the nursing home. Id. Following Baby K’s second

19

admission, the hospital sought a declaratory judgment that it was not required to provide

20

respiratory support to anencephalic infants. Id. The district court denied that relief, and the

21

Fourth Circuit affirmed, observing:

22

Congress rejected a case-by-case approach to determining what
emergency medical treatment hospitals and physicians must provide
and to whom they must provide it; instead, it required hospitals and
physicians to provide stabilizing care to any individual presenting
an emergency medical condition. EMTALA does not carve out an
exception for anencephalic infants in respiratory distress any more

23
24
25
5

26
27
28

Anencephaly is a congenital malformation where a major portion of the patient’s brain,
skull and scalp are missing. Baby K, 16 F.3d at 592. The presence of a brain stem supported
Baby K’s autonomic functions and reflex actions, but, without a cerebrum, the patient was
permanently unconscious and had no cognitive abilities or awareness. Id. She could not see,
hear, or interact with her surroundings. Id.
18

1
2
3

than it carves out an exception for comatose patients, those with
lung cancer, or those with muscular dystrophy––all of whom may
repeatedly seek emergency stabilizing treatment for respiratory
distress and also possess an underlying medical condition that
severely affects their quality of life and ultimately may result in
their death.

4
5

Id. at 598. EMTALA was therefore applicable and required the hospital to provide stabilizing

6

care to Baby K when her mother sought emergency care. Id.

7

Two years later, the Fourth Circuit clarified its holding in Baby K and provided a

8

narrowed reading of EMTALA. See Bryan v. Rectors and Visitors of the Univ. of Va., 95 F.3d

9

349, 352 (4th Cir. 1996). In Bryan, the plaintiff argued that the hospital defendant violated

10

EMTALA when, after treating the adult patient for an emergency condition for twelve days, it

11

decided that no further efforts to prevent the patient’s death should be made. Id. at 350, 352. The

12

hospital refused to follow instructions from the patient’s husband and family, and entered a “do

13

not resuscitate” order against the family’s wishes. Id. at 350. As a result, the patient’s condition

14

worsened, and she died a few days later. The Fourth Circuit found EMTALA did not apply and

15

distinguished Baby K:

16
17

Under the circumstances [in Baby K], the requirement was to
provide stabilizing treatment of . . . respiratory distress, without
regard to the fact that the patient was anencephalic or to the
appropriate standards of care for that general condition.

18
19
20

The holding in Baby K thus turned entirely on the substantive
nature of the stabilizing treatment that EMTALA required for a
particular emergency medical condition. The case did not present
the issue of the temporal duration of that obligation, and certainly
did not hold that it was of indefinite duration.

21
22

Id. at 352. The Bryan court went on to affirm the district court’s order dismissing the case

23

because the plaintiff had conceded that the patient received stabilizing treatment in accordance

24

with EMTALA for twelve days. Id. at 353. The plaintiff’s claim rested only on the “ultimate

25

cessation of that or any further medical treatment upon entry of the anti-resuscitation order,”

26

which did not violate EMTALA. Id.

27
28

The Fourth Circuit further noted that EMTALA is “a limited ‘anti-dumping’
statute, not a federal malpractice statute.” Id. at 351. It echoed the decisions of other circuit
19

1

courts, noting that EMTALA was enacted to prevent patients from being turned away from

2

emergency rooms for lack of insurance or other non-medical reasons. Id.; see also, e.g., Phillips

3

v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001) (Congress enacted EMTALA to

4

regulate emergency room care to prevent the dumping” of the uninsured); Cherukuri v. Shalala,

5

175 F.3d 446, 448 (6th Cir. 1999) (same). The Ninth Circuit, in finding EMTALA provides no

6

private right of action against physicians, has characterized the law’s purpose in the same way:

7

“Congress enacted [EMTALA] in response to a growing concern about the provision of adequate

8

emergency room medical services to individuals who seek care, particularly as to the indigent and

9

uninsured.” Eberhardt v. City of L.A., 62 F.3d 1253, 1255 (9th Cir. 1995) (citation and quotation

10

marks omitted). “Congress was concerned that hospitals were ‘dumping’ patients who were

11

unable to pay, by either refusing to provide emergency medical treatment or transferring patients

12

before their conditions were stabilized.” Id.

13

Ultimately, the Fourth Circuit held in Bryan that once stabilizing treatment has

14

been provided for a patient who arrives with an emergency condition, “the patient’s care becomes

15

the legal responsibility of the hospital and the treating physicians,” and the legal adequacy of the

16

subsequent care is no longer governed by EMTALA. 95 F.3d at 351. A hospital is not obligated

17

to provide “stabilizing treatment” for a particular “emergency medical condition” for an indefinite

18

duration, at least in terms of its liability under EMTALA. See id. at 352.

19

Here, after Israel’s first admission to a local hospital for an asthma attack, then his

20

loss of consciousness, intubation and transfer to U.C. Davis, followed by a brain death

21

examination and apnea tests6 at U.C. Davis, Israel was transferred to Kaiser on the eleventh day

22

after his asthma attack. At Kaiser, stabilizing treatment was provided, another apnea test was

23

performed, and after another three days, two doctors performed tests independently to determine

24

whether Israel’s brain was still functioning. Each doctor determined Israel had suffered brain

25
26
27
28

6

In performing an apnea test, a doctor removes the ventilator and allows the carbon
dioxide levels within a patient to rise in order to provoke a respiratory response. The First
Amended Complaint appears to allege that Israel was not comatose at the time of this testing, but
does not provide further clarification as to his actual state. FAC ¶ 19.
20

1

death as provided by CUDDA on April 14, 2016.7 Kaiser completed a portion of a Certificate of

2

Death for Israel soon afterward. ECF No. 43-3. Nonetheless, Kaiser has continued to provide

3

support for Israel pending the parties’ efforts at mediation and court decisions.

4

As a practical matter, after stabilizing Israel, Kaiser determined Israel’s condition

5

was no longer an emergency medical condition because it found Israel had suffered brain death.

6

This determination distinguishes this case from Baby K, where the patient, despite breathing

7

difficulties, was stabilized and discharged. Also, unlike Baby K, this is not a case where the

8

patient still “seek[s] emergency stabilizing treatment for [medical] distress.” Baby K, 16 F.3d at

9

598. Rather, Ms. Fonseca requests that Israel remain on a ventilator with additional treatment so

10

he can be in his current condition once she has a plan for transfer. The dispute here, as in Bryan,

11

raises at best a question of long-term care. See id. EMTALA does not obligate Kaiser to

12

maintain Israel on life support indefinitely. Plaintiff identifies no date by which she would agree

13

Kaiser’s obligations cease. This case raises no serious questions under EMTALA.

14

B.

15

Substantive Due Process Claim Against Dr. Smith
The complaint alleges generally that CUDDA deprives Ms. Fonseca of liberty and

16

privacy and Israel of life without due process. See First Am. Compl. at 11–15. In her moving

17

papers, Ms. Fonseca clarifies that she challenges CUDDA both as a matter of substance and with

18

respect to the procedures CUDDA establishes. See Mot. Prelim. Inj. at 11–12. The court

19

considers first, here, her substantive challenge. As explained below, the court does not enjoin

20

CUDDA, and therefore does not provide Dr. Smith time to brief her position on plaintiff’s claims

21

against her.

22

The Due Process Clause of the Fourteenth Amendment prohibits states from

23

making or enforcing laws that deprive a person of life, liberty, or property without due process.

24

U.S. Const. amend. XIV, § 1. The Clause has been construed to “protect[] individual liberty

25

against certain government actions regardless of the fairness of the procedures used to implement

26

them.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992) (citation and quotation

27
28

7

As the state court found, Kaiser thus provided the “independent confirmation” required
by CUDDA. Cal. Health & Safety Code § 7181.
21

1

marks omitted). It “provides heightened protection against government interference with certain

2

fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

3

Among these rights is a person’s liberty interest in making certain decisions about medical

4

treatment. See id. at 724–25 (citing Cruzan by Cruzan v. Dir., Missouri Dep’t of Health,

5

497 U.S. 261, 279 (1990)).

6

1.

7

When presented with a due process challenge, the court must take care to

8

understand what right or liberty interest is at stake. See id. at 721 (referring to a “careful

9

description” of the asserted fundamental liberty interest). Ms. Fonseca would define the interests

10

in question here as Israel’s right to live and her right to make decisions about his care; that is, she

11

alleges CUDDA deprives her of a right to make healthcare decisions for Israel. See Mot. Prelim.

12

Inj. at 11–16. For all practical purposes, these claims are the same: they are both challenges to

13

California’s decision to place brain death on equal footing with the prior legal understanding of

14

death, as linked to breath and heartbeat. Although the court agrees Ms. Fonseca has a

15

fundamental liberty interest “in the care, custody, and control of [her] children,” Troxel v.

16

Granville, 530 U.S. 57, 65 (2000), it does not follow that any person, parent or not, has a right to

17

demand healthcare be administered to those who are not alive in the eyes of the state.

18

Nevertheless, Ms. Fonseca’s fundamental interests in the care of her son likely encompass her

19

challenge to California’s determination that he is not alive. For purposes of this motion, the court

20

finds Ms. Fonseca may challenge CUDDA in her own right as well as on Israel’s behalf. But see

21

Pickup v. Brown, 740 F.3d 1208, 1235–36 (9th Cir.) (finding a parent has no fundamental right

22

“to choose for a child a particular type of provider for a particular treatment that the state has

23

deemed harmful”), cert. denied, 134 S. Ct. 2871, and cert. denied sub nom. Welch v. Brown, 134

24

S. Ct. 2881 (2014).

25

Rights at Stake

It goes without saying that the right to life is fundamental. The fundamental rights

26

of parents have also been unquestioned for the better part of a century at least. See, e.g., Troxel,

27

530 U.S. at 65. This does not end this court’s inquiry; whether a constitutional right has been

28

violated is determined by balancing that right or liberty interest against the “relevant state
22

1

interests.” Cruzan, 497 U.S. at 279 (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)). In

2

other words, “[i]n determining whether a substantive right protected by the Due Process Clause

3

has been violated, it is necessary to balance the liberty of the individual and the demands of an

4

organized society.” Youngberg, 456 U.S. at 320 (citation and quotation marks omitted).

5

2.

6

The particulars of the required balancing exercise are difficult to describe

Balancing of Interests

7

generally. The Supreme Court has engaged in balancing in three cases that are instructive here.

8

In Cruzan, the Court balanced a competent person’s “constitutionally protected liberty interest in

9

refusing unwanted medical treatment” against Missouri’s decision to require clear and convincing

10

evidence that a person in a persistent vegetative state would have wanted to terminate treatment.

11

497 U.S. at 278–85. The Court considered the State’s interests in safeguarding the deeply

12

personal choice between life and death. See id. at 281. In Youngberg, the Court balanced a

13

civilly committed person’s interests in safety and freedom against the state’s interests, for

14

example in protecting others from violence, and concluded that the state was constitutionally

15

required to ensure that the commitment decision was not made in reliance on a “substantial

16

departure from accepted professional judgment, practice, or standards.” 457 U.S. at 321–23.

17

And in Bell v. Wolfish, 441 U.S. 520 (1979), the Court balanced the rights of pretrial detainees to

18

be free from punishment against the state’s interest in ensuring a defendant is present at trial, the

19

state’s “operational concerns,” and other related interests. Id. at 539–40. Similarly, as the Ninth

20

Circuit has observed, a parent’s fundamental liberty interest in maintaining the family relationship

21

is not absolute; when the state interferes with that relationship, the parents’ interests must be

22

balanced against those of the state. See, e.g., Woodrum v. Woodward Cty., Okl., 866 F.2d 1121,

23

1125 (9th Cir. 1989); see also Pickup, 740 F.3d at 1235 (“Parents have a constitutionally

24

protected right to make decisions regarding the care, custody, and control of their children, but

25

that right is not without limitations.” (citation and quotation marks omitted)).

26

While the historical, common-law understanding, that death occurred after the

27

permanent cessation of breath and blood flow, was generally in effect in this country for many

28

years prior to the late 1900s, see, e.g., People v. Mitchell, 132 Cal. App. 3d 389, 396–97 (1982)
23

1

(citing Commonwealth v. Golston, 373 Mass. 249 (1977)), the understanding of the human body’s

2

functioning is different today than it was when death was defined without reference to the brain.

3

The previous legal understanding of death fit within a context when the heart, lungs, and other

4

organs could not be sustained artificially. In the face of changing technology, California has a

5

broad range of legitimate interests in drawing boundaries between life and that reflect current

6

understanding. These interests include: for purposes of criminal law (has a murder occurred and

7

when?), tort liability (has a doctor caused a death and when?), probate and the law of estates

8

(what rights do heirs possess and when?), general healthcare and bioethics (how must the state

9

and private medical providers allocate scarce resources among the ill and injured?), and as

10

relevant here regulation of the medical profession (when may a doctor refuse treatment, and when

11

must a doctor provide treatment?). Cf. Glucksberg, 521 U.S. at 731 (recognizing a state’s interest

12

in protecting “the integrity and ethics of the medical profession” opposite an asserted fundamental

13

right); Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (“States have a compelling interest in

14

the practice of professions within their boundaries . . . .”); Varandani v. Bowen, 824 F.2d 307,

15

311 (4th Cir. 1987) (recognizing a state’s “compelling interest in assuring safe health care for the

16

public”).

17

Nothing before the court suggests CUDDA is arbitrary, unreasoned, or

18

unsupported by medical science. Kansas was the first to adopt a statutory definition of death in

19

1970, including brain death. See State v. Shaffer, 223 Kan. 244, 249 (1977). Other states

20

followed this lead, and the Uniform Determination of Death Act was adopted in 1980 by the

21

National Conference of Commissions on Uniform Laws. David B. Sweet, Homicide by Causing

22

Victim’s Brain-Dead Condition, 42 A.L.R.4th 742 (orig. pub. 1985). The current version of the

23

Act is the product of a long-debated agreement between the American Medical Association and

24

the American Bar Association. See id.; 14 Witkin, Summary 10th, Wills, § 11, p. 69 (2005).

25

Thirty-three states and the District of Columbia have formally adopted the Act. See U.L.A., Unif.

26

Determination of Death Act, Refs. & Annos.; see also In re Guardianship of Hailu, 361 P.3d 524,

27

528 (Nev. 2015) (“The UDDA and similar brain death definitions have been uniformly accepted

28

throughout the country.”). California adopted the Act in 1982. See 1982 Cal. Stat. 3098.
24

1

Brain death itself is a widely recognized and accepted phenomenon, including in

2

children and infants. See, e.g., Am. Acad. Pediatrics, Clinical Report—Guidelines for the

3

Determination of Brain Death in Infants and Children (2011), ECF No. 36-1 (affirming “the

4

definition of death,” the same definition used in CUDDA, which “had been established by

5

multiple organizations including the American Medical Association, the American Bar

6

Association, the National Conference of Commissioners on Uniform State Laws, the President’s

7

Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral

8

Research and the American Academy of Neurology”); James L. Bernat, The Whole-Brain

9

Concept of Death Remains Optimum Public Policy, 34 J.L. Med. & Ethics 35, 36 (2006) (“The

10

practice of determining human death using brain tests has become worldwide over the past

11

several decades. The practice is enshrined in law in all 50 states in the United States and in

12

approximately 80 other countries . . . .”).

13

At the same time, the court recognizes the unease with which some regard brain

14

death. See, e.g., Bernat, supra, at 36 (referring to a “persistent group of critics”); Seema K. Shah,

15

Piercing the Veil: The Limits of Brain Death as a Legal Fiction, 48 U. Mich. J. L. Reform 301,

16

302 (2015) (recognizing the “tremendous value of the legal standard of brain death in some

17

contexts” but arguing brain death is a legal fiction and should not be recognized in certain cases,

18

including where religious and moral objections are raised); D. Alan Shewmon, “Brainstem

19

Death,” “Brain Death” and “Death”: A Critical Re-Evaluation of the Purported Equivalence,

20

14 Iss. L. & Med. 125 (1998) (advocating for a definition of death that looks to more than the

21

brain). A California Court of Appeal has suggested “[p]arents do not lose all control once their

22

child is determined brain dead,” but also expressed uncertainty whether this right was born of the

23

common law, the Constitution, logic, or simple decency. Dority v. Superior Court, 145 Cal. App.

24

3d 273, 279–80 (1983). Ms. Fonseca has presented the declaration of Dr. Paul Byrne, M.D., who

25

believes Israel may recover some cognitive function with time and treatment. See generally

26

Byrne Decl., ECF No. 36. Dr. Myette disagrees. See Myette Decl. ¶ 15. On balance, a

27

professional doubt surrounding brain death as death, legally or medically, represents a minority

28

position. Such doubt is unlikely to render CUDDA substantively unconstitutional on its face.
25

1

C.

2

Procedural Due Process Claim against Dr. Smith
“A procedural due process claim has two elements: deprivation of a

3

constitutionally protected liberty or property interest and denial of adequate procedural

4

protection.” Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963,

5

970 (9th Cir. 2010). Here, as discussed, California is alleged to have deprived Israel of life and

6

Ms. Fonseca of her fundamental interests in the care, custody, and control of her children. These

7

are fundamental rights and interests the Constitution protects. Ms. Fonseca still must demonstrate

8

she is likely to succeed in showing the process provided to Israel and herself has been inadequate.

9

“Due process, unlike some legal rules, is not a technical conception with a fixed

10

content unrelated to time, place and circumstances. It is compounded of history, reason, the past

11

course of decisions.” Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 895 (1961)

12

(citation, alteration, and quotation marks omitted). “The fundamental requirement of due process

13

is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.

14

Eldridge, 424 U.S. 319, 333 (1976) (citation and quotation marks omitted). What process is due

15

generally depends on three factors: (1) “the private interest that will be affected by the official

16

action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used,

17

and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the

18

Government’s interest, including the function involved and the fiscal and administrative burdens

19

that the additional or substitute procedural requirement would entail.” Id. at 335.

20
21

CUDDA and other provisions of the Health and Safety Code provide several
procedural safeguards:

22
23

(1) Health & Safety Code section 7180 allows a determination of death only “in
accordance with accepted medical standards.”

24

(2) “When an individual is pronounced dead by determining that the individual has

25

sustained an irreversible cessation of all functions of the entire brain, including the brain stem,

26

there shall be independent confirmation by another physician.” Cal. Health & Safety Code

27

§ 7181.

28
26

1
2

(3) Physicians involved in the determination of death must not participate in any
procedures to remove or transplant the deceased person’s organs. Id. § 7182.

3

(4) “Complete patient medical records required of a health facility pursuant to

4

regulations adopted by the department in accordance with [California Health and Safety Code]

5

Section 1275 shall be kept, maintained, and preserved” with respect to CUDDA’s requirements in

6

the case of a brain death. Id. § 7183.

7

(5) Hospitals must “adopt a policy for providing family or next of kin with a

8

reasonably brief period of accommodation . . . from the time that a patient is declared dead by

9

reason of irreversible cessation of all functions of the entire brain, including the brain stem . . .

10

through discontinuation of cardiopulmonary support for the patient. During this reasonably brief

11

period of accommodation, a hospital is required to continue only previously ordered

12

cardiopulmonary support. No other medical intervention is required.” Id. § 1254.4(a). “[A]

13

‘reasonably brief period’ means an amount of time afforded to gather family or next of kin at the

14

patient’s bedside.” Id. § 1254.4(b). “[I]n determining what is reasonable, a hospital shall

15

consider the needs of other patients and prospective patients in urgent need of care.” Id.

16

§ 1254.4(d).

17

(6) The hospital must “provide the patient’s . . . family or next of kin, if available,

18

with a written statement of the [policy regarding a reasonably brief period of accommodation

19

described in section 1254.4(a)], upon request, but no later than shortly after the treating physician

20

has determined that the potential for brain death is imminent.” Id. § 1254.4(c)(1). “If the

21

patient’s . . . family . . . voices any special religious or cultural practices and concerns of the

22

patient or the patient’s family surrounding the issue of death by reason of irreversible cessation of

23

all functions of the entire brain of the patient, the hospital shall make reasonable efforts to

24

accommodate those religious and cultural practices and concerns.” Id. § 1254.4(c)(2).

25

(7) Section 1254.4 provides for no private right of action, as plaintiff stresses. Id.

26

§ 1254.4(e). But a state court may hear evidence and review a physician’s determination that

27

brain death has occurred. See Dority, 145 Cal. App. 3d at 280 (“The [trial] court, after hearing

28

the medical evidence and taking into consideration the rights of all the parties involved, found
27

1

[the patient] was dead in accordance with the California statutes and ordered withdrawal of the

2

life-support device. The court’s order was proper and appropriate.”).

3

Ms. Fonseca is unlikely to show the available protections are inadequate. Whether

4

a person has suffered brain death is a medical determination that should involve a doctor, as

5

CUDDA foresees. CUDDA creates a procedure that allows a determination to be verified

6

quickly; false positives may mean a patient in critical condition receives no care. The law

7

requires an independent confirmation of death in the case of suspected brain death; here at least

8

three doctors have independently determined Israel is brain dead. Doctors who make the

9

determination of death cannot be involved in any related transplant procedures; here the doctors

10

are not. Family may gather at a patient’s bedside, and hospitals must make reasonable

11

accommodations for the religious or moral concerns of the patient’s family or next of kin. The

12

family has been provided more than a brief period of time to gather, and the state court

13

considered and addressed Ms. Fonseca’s moral and religious concerns during the time its TRO

14

was in effect.

15

In addition, although section 1254.4 creates no private right of action, a California

16

appellate court has determined that an interested person has some recourse to judicial review.

17

Ms. Fonseca sought and received immediate protection from the Placer County Superior Court,

18

which entered a TRO and allowed her to present evidence and seek relief over the course of two

19

weeks. Although Ms. Fonseca has not appealed the state court’s dismissal of her case, Dority

20

signals she could. At hearing, her counsel in this case -- who is not counsel in her state case –

21

suggested that a state appeal would be burdensome or unproductive, and exclaimed that taking

22

that route generally is a “death knell for California working class families.” While the full impact

23

of his statement is not clear to this court, nothing in the record before it supports the conclusion

24

that full procedural due process is unavailable with respect to CUDDA.

25

V.

RELIEF SOUGHT

26

Ms. Fonseca has not borne her burden to show she is likely to succeed on the

27

merits of the claims she relies on at this stage, and she has not presented sufficiently serious

28
28

1

questions to justify a preliminary injunction. This conclusion is bolstered by the fact that her

2

claims do not appear to fit with the relief she seeks.

3

While Ms. Fonseca requests maintenance of ventilation, she also requests a

4

mandatory injunction. See First Am. Compl. ¶¶ 48 (requesting an injunction that requires Kaiser

5

to provide nutrition to Israel); Proposed Order, ECF No. 33-1 at 3. A mandatory injunction

6

“orders a responsible party to take action.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir.

7

2015) (citation and quotation marks omitted). This type of relief “goes well beyond simply

8

maintaining the status quo pendente lite and is particularly disfavored.” Id. (citation, quotation

9

marks, and alterations omitted). Mandatory injunctions are incompatible with doubtful cases like

10

this one. Id. Moreover, it seems unlikely this court would have jurisdiction to consider the

11

specifics of what care Israel must receive. This question, among others, was the subject of the

12

Placer County Superior Court’s orders and hearings last month. The Rooker-Feldman doctrine or

13

standard preclusion rules would likely apply. See, e.g., Cooper, 704 F.3d at 777; cf. Exxon Mobil

14

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 292–94 (2005) (referring to independent

15

doctrines of preclusion, stay, and dismissal that may arise in the presence of parallel state court

16

proceedings).

17

As noted, it appears the court lacks subject matter jurisdiction over the § 1983

18

claims against Kaiser and Dr. Myette, and EMTALA does not provide a basis for enjoining

19

Kaiser on the facts here. Dr. Smith may be the only viable defendant in this action. An order

20

requiring Kaiser to maintain Israel’s condition could not properly be issued against Dr. Smith. If

21

indeed CUDDA is facially unconstitutional, the court could at most declare that the certificate of

22

Israel’s death is void. Kaiser and its physicians would then remain subject to other provisions of

23

California law that are not before this court. See, e.g., Cal. Prob. Code §§ 4735 (“A health care

24

provider or health care institution may decline to comply with an individual health care

25

instruction or health care decision that requires medically ineffective health care or health care

26

contrary to generally accepted health care standards applicable to the health care provider or

27

institution.”); id. § 4654 (“[Division 4.7 of the Probate Code] does not authorize or require a

28
29

1

health care provider or health care institution to provide health care contrary to generally accepted

2

health care standards applicable to the health care provider or health care institution.”).

3

While Ms. Fonseca’s maternal instincts and moral position are completely

4

understandable, the concerns reviewed here suggest she is unlikely to obtain the relief she seeks,

5

and weigh against a preliminary injunction based on the law this court is sworn to apply and

6

uphold.

7

VI.

CONTINUING TEMPORARY RELIEF

8

To date, the TRO the court previously issued has remained in effect. See Order

9

Apr. 28, 2016, ECF No. 9; Minutes, ECF No. 22; Minutes, ECF No. 45. At the May 11, 2016

10

hearing, Ms. Fonseca indicated she would ask the court stay the effect of an order denying her

11

request for a preliminary injunction to allow her to seek emergency relief from the Ninth Circuit

12

Court of Appeals. The defendants expressed no objection to this request.

13

“While an appeal is pending from an interlocutory order . . . that . . . denies an

14

injunction, the court may . . . grant an injunction on terms for bond or other terms that secure the

15

opposing party’s rights.” Fed. R. Civ. P. 62(c). Under this rule, the court considers generally the

16

same factors as in the context of a temporary restraining order or preliminary injunction. See,

17

e.g., Protect Our Water v. Flowers, 377 F. Supp. 2d 882, 883 (E.D. Cal. 2004). Nevertheless,

18

when a court has attempted to answer a question of first impression, and when the practical

19

consequences of its decision suggest caution, a plaintiff’s likely success on the merits may not

20

play so central a role. See, e.g., id.; Yamada v. Kuramoto, 744 F. Supp. 2d 1075, 1087 (D. Haw.

21

2010). And in a case such as this one, “[a]n erroneous decision. . . is not susceptible of

22

correction.” Cruzan, 497 U.S. at 283.

23

The court therefore provides that this order will not take effect, and the temporary

24

restraining order will remain in place, until the close of business on Friday, May 20, 2016, to

25

allow Ms. Fonseca time to seek emergency relief from the Ninth Circuit Court of Appeals.

26

/////

27

/////

28

/////
30

1
2

VII.

CONCLUSION
The temporary restraining order currently in effect REMAINS IN PLACE until the

3

close of business on Friday, May 20, 2016, at which point it will be dissolved. The motion for a

4

preliminary injunction is DENIED.

5

This order resolves ECF Nos. 31 & 33.

6

IT IS SO ORDERED.

7

DATED: May 13, 2016.

8
9
10

UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
31