George et al v. Sonoma County Sherrif's Department et al

Filing 352

ORDER Signed by Magistrate Judge Elizabeth D. Laporte Granting in Part & Denying in Part re #269 Motion for Summary Judgment; Granting in Part & Denying in Part re #281 Motion for Summary Judgment. (edllc2, COURT STAFF) (Filed on 8/9/2010)

George et al v. Sonoma County Sherrif's Department et al

Doc. 352

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Legal Standard Summary judgment shall be granted if "the pleadings, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(c). Material facts are those
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

VALERIE GEORGE, et al., Plaintiffs, v. SONOMA COUNTY SHERIFF'S DEPT., et al., Defendants. /

No. C-08-02675 EDL ORDER GRANTING IN PART AND DENYING IN PART SUTTER DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT NORICK JANIAN'S MOTION FOR PARTIAL SUMMARY JUDGMENT

This action arises from the death of Ryan George on July 9, 2007 while he was in the custody of the Sonoma County Sheriff's Department, and after he had received allegedly inadequate medical care from medical staff at the Sonoma County Main Adult Detention Facility and at Sutter Medical Center of Santa Rosa. Now before the Court are: (1) Sutter Health's and Sutter Medical Center of Santa Rosa's ("the Sutter Defendants") Motion for Summary Judgment or in the Alternative, Summary Adjudication; and (2) Defendant Norick Janian's Motion for Partial Summary Judgment. Doctor Janian is a physician at Sutter Medical Center who participated in Ryan's medical care in July 2007. On July 13, 2010, the Court held a hearing on these motions, which were fully briefed. For the reasons stated at the hearing and below, the Court issues the following Order.

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which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court must view the facts in the light most favorable to the non-moving party and give it the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id. If the moving party meets its initial burden, the opposing party "may not rely merely on allegations or denials in its own pleading;" rather, it must set forth "specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 250. If the nonmoving party fails to show that there is a genuine issue for trial, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323. Facts On May 31, 2007, Ryan George was incarcerated at the Sonoma County Main Adult Detention Facility. See Declaration of Steve Wittels Ex. 15. On June 28 and 29, 2007, Ryan submitted inmate medical request forms seeking medical attention for a sickle cell crisis. See id. at Ex. 11, 20. Ryan received some medical attention at the jail, and was transferred to Sutter Medical Center of Santa Rosa for treatment on July 1, 2007. See id. at Ex. 21, 22, 23. In the emergency department at Sutter Medical Center on July 1, Ryan was examined by Dr. Edward Hard and Dr. Angus Matheson. See Declaration of Larry Thornton Ex. A at A-4 to A-5, A36 to A-41. His heart rate was 144, blood pressure 139/86, respiratory rate 24, oxygen saturation 2

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98% and rectal temperature 100.1. Id. at A-8. According to the medical records, he was non-verbal, diaphoretic and stiff, and his Glascow coma score was 7.1 See id. at A-8 to A-10. He moved all of his extremities and responded to pain, and his pupils were equal and reactive to light. See id. at A-4, A-8, A-37. Ryan received supplemental oxygen and intravenous hydration, and underwent lab tests, a brain CT scan, a head MRI, a chest X-ray and a lumbar puncture. See id. at A-4 to A-5, A-8 to A9, A-36 to A-41, A-76 to A-77, A-103. The brain CT was normal and the chest X-ray and lumbar puncture were negative. See id. at 4-5, 74. Ryan was admitted by Dr. Matheson to the cardiac telemetry unit at 6:20 p.m. on July 1. See id. at A-26 to A-28, A-42 to A-44. When he was admitted to the telemetry unit, his heart rate was 87, blood pressure 118/78, respiratory rate 16, temperature 36.9, and 100% oxygen saturation on supplemental oxygen. Thornton Decl. Ex. A at A-42 to A-47. Gastrointestinal, skin and genitourinary assessments were normal and he continued on intravenous fluids. See id. at A-45 to A-50. His strength was decreased, he did not verbally respond and he was ordered to take nothing by mouth. See id. at A45- to A-50, A-26. Dr. Matheson recorded progress notes at 6:47 p.m. and 7:49 p.m., noting that he discussed Ryan's case with Dr. Janian and Dr. Lamb, that Ryan remained stable, responded to pain, had a gag reflex and had pupil response. See id. at A-33. Nursing notes during the evening of July 1 indicate that Ryan's Glascow coma scores had decreased to 5 at 9:30 p.m. and 10:30 p.m., and 6 at 11:30 p.m. See id. at A-66. Ryan had a condom catheter in place, and was receiving intravenous fluids. See id. at A-48 to A-53, A-71. Upon Ryan's admission to the hospital, Dr. Hard reported that Ryan was somnolent, and incontinent of stool and urine. See Wittels Decl. Ex. 28. Dr. Hard noted that jail staff were concerned that Ryan could have a seizure, and believed he was having a sickle cell crisis. See id. Dr. Hard found Ryan verbally unresponsive, but noted that Ryan withdrew to pain and responded by opening his eyes to strong auditory stimulation. See id. Dr. Hard reported that Ryan moved all extremities, and that he clenched his teeth. See id. Dr. Hard stated that Ryan had remained stable in the emergency room, but was still unresponsive to questions. See id. Dr. Hard diagnostic The Sutter Defendants explain in their opening brief that a Glascow coma score is a numerical value derived from combining patient scores in areas of opening eyes, verbal response and motor response.
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impression was: "(1) altered sensorium, etiology unclear; (2) history of sickle cell anemia; possible CVA secondary to sickle cell; (3) infectious etiology unlikely with a negative lumbar puncture." Id. Dr. Hard testified at his deposition that Ryan was "almost in a catatonic-like state" when he was in the emergency room, and that he was "very concerned about him." Wittels Decl. Ex. 10 at 78-79. Dr. Matheson noted in a dictated report on July 1, 2007 that Ryan had a "dramatically altered level of consciousness," and that there was prior concern about seizures. See Wittels Decl. Ex. 31. Dr. Matheson noted that Ryan had sickle cell anemia, and also stated that Ryan may have vitamin deficiency. See id. Dr. Matheson noted that Ryan was "lying in bed without purposeful movement," and that he did not respond to verbal commands or verbal stimuli. See id. Dr. Matheson stated in the report that he would consult neurology, and would not begin any medications until the diagnosis was clear. See id. Ryan's mother, Valerie George, testified that she received a telephone call from Dr. Matheson on July 1, and that he was alarmed about Ryan's condition. See Wittels Decl. Ex. 18 at 65-66. Ms. George testified that Dr. Matheson told her to get down to the hospital right away. See id. According to Ms. George, Dr. Matheson also told her that he did not know why the jail did not take Ryan to Kaiser instead of Sutter Medical Center because he would be better off there. See id.; Ex. 44 at 100-101. Dr. Matheson also told Ms. George that Sutter did not know what it was doing and had little experience with sickle cell anemia. See id. Ex.18 at 67-68, 113. After Ryan's family visited him on July 1, Dr. Matheson told Ms. George that he was going to tell the Sheriff's Department to transfer Ryan to Kaiser, and that the Sutter doctors did not know what they were doing. See id. Ex. 18 at 73, 126-27. Ms. George testified that Dr. Matheson told her that Sutter did not know what was wrong with Ryan, and that they were "fishing in the dark." See id. at 127; see also Ex. 44 at 39. Ms. George testified that Dr. Matheson told her that Ryan could not have intravenous fluids because the doctors did not know what was wrong with him. See id. Ex. 44 at 39, 58-59. Ryan's father, Donald George, testified that Ryan did not have intravenous fluids when Mr. George saw him on July 1. See Wittels Decl. Ex. 44 at 36-37, 58-59. When Dr. Matheson finished his shift on July 1 at 10:00 p.m., Ryan's condition was essentially the same as at the time Ryan had been admitted. See Wittels Decl. Ex. 6 at 117-120. Dr. 4

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Matheson did not believe it was appropriate to discharge him at that time. See id. He felt that it was important to determine the cause of Ryan's change of consciousness, and to restore him to a higher level of consciousness. See id. Dr. Matheson told the deputy guarding Ryan to: "Please be nice to this family. I think something really bad has happened to this young man." Id. at 129. On July 2, nursing staff performed neurological checks, which revealed Glascow coma scores of 5 at 12:30 a.m., 9 at 4:30 a.m., 9 at 6:00 a.m., 10 at 8:00 a.m., and 8 at an unspecified time, 12:00 p.m. and 8:00 p.m. See Thornton Decl. Ex. A at A-66. Ryan's vital signs were fairly stable throughout that day. See id. at A-66 to A-67. Hematology tests were drawn six times, and chemistry labs once. See id. at A-80, A-84 to A-85. Heart rhythm strips were printed five times. See id. at A-91 to A-92. Ryan received intravenous fluids all day. See id. at A-54 to A-56, A-72. Nursing notes reveal that Ryan's lungs were clear, he was removed from supplemental oxygen, he was not in pain and he was non-verbal. See id. at A-54 to A-56. He still did not take anything by mouth. See Wittels Decl. Ex. 35. Dr. Matel's progress notes from July 2 show that Ryan would have to verbalize his need for pain medication before it would be administered. See Thornton Decl. Ex. A at A-29. Dr. Flinders examined Ryan in the morning of July 2. See Thornton Decl. Ex. A at A-33. Ryan was awake, alert and aware, and afebrile. See id. Ryan did not verbalize, but he understood commands and responded. See id. His pupils were reactive and there were no focal abnormalities. See id. A CT scan was normal, metabolic studies were normal, and lumbar puncture indicated no cells. See id. On the morning of July 2, a Sutter radiologist finalized his report on Ryan's MRI, which among other things, stated that "periventricular white matter signal intensity changes that may be related to micro infarcts from previous episodes of sickle cell crisis," but were "very nonspecific in nature." See Wittels Decl. Ex. 42 at 00047-00048. Ryan's progress notes state that the MRI result was negative, and Dr. Matel's discharge summary states that the MRI had "no evidence of mass, hemorrhage, infarct or other abnormalities." Thornton Decl. Ex. A at A-33 to A-34; A-103. Physical therapy notes from July 2 state that Ryan was non-verbal, appeared lethargic and distant, unable to follow cues and commands, and had significant weakness, and was non-mobile. 5

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See Wittels Decl. Ex. 38. The therapist was unable to fully assess and determine Ryan's functional status. See id. An EEG was performed on Ryan on July 2, 2007. Dr. Janian, who was the neurologist on duty, reviewed the EEG results and issued his report on July 3, concluding that "the slowing and disorganization is not specific and may represent mild and diffuse encephalopathy," meaning brain malfunction. Wittels Decl. Ex. 45; Ex. 46 at 59-60. He did not recall any particular doctor being concerned about Ryan's EEG. See id. at 21. Dr. Janian did not know that Ryan suffered from sickle cell anemia, and testified that he prefers not to know the patient's history when reading an EEG because it helps him better interpret the test. See id. at 27-28. At the time he read Ryan's EEG, Dr. Janian was not given any instruction on what to look for, and he was not told of any concerns about the patient. See id. Ex. 46 at 28-29. Dr. Matheson indicated in his progress notes on July 1, 2007 that Dr. Janian was unable to see Ryan. See Wittels Decl. Ex. 37; Ex. 6 at 133. Dr. Janian, however, has no recollection of anyone asking him to see Ryan. See Wittels Decl. Ex. 46 at 35, 40. Dr. Janian did not recall anyone talking to him about whether Ryan was malingering. Id. at 37, 47. He testified that Ryan's EEG contained one symptom of sickle cell anemia, but that he could not tell by looking at the EEG whether Ryan had a sickle cell crisis. See id. at 37-38. He did not recall any discussion about discharging Ryan. See id. at 27. He did not recall any discussion about Ryan's discharge being delayed until the EEG was read. See id. at 27, 40. Dr. Janian had no recollection of having any conversations about Ryan with Dr. Matheson or Dr. Flinders. See id. at 15-16. Dr. Matel told the patrol sergeant on July 2 that Ryan would be in the hospital for another day or so. See Wittels Decl. Ex. 39 at 49. Dr. Matel also stated that Ryan should not have visitors. See id. Dr. Matel told Ms. George that he would try to arrange for her to visit Ryan, and that Ryan was not on pain medication because he had not asked for it. See Wittels Decl. Ex. 18 at 79-80. Dr. Matel also told Ms. George that there was a concern that Ryan may have brain damage. See id. at 83. Also on July 2, Dr. Flinders spoke with a nurse at the jail, Michael Dagey, stating that the doctors had not found any new neurological pathology to account for his altered mental status, and that Ryan likely experienced an acute sickle-cell crisis, but that Ryan was improving and that he 6

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may return to the jail in the next day or so. See Wittels Decl. Ex. 7 at 57-60, 176. Mr. Dagey testified that Dr. Flinders told him that doctors would do more testing on Ryan, but that if the tests were inconclusive, Ryan would be sent back to the jail. See Wittels Decl. Ex. 40 at 120. Mr. Dagey did not remember Dr. Flinders telling Mr. Dagey that any special equipment was needed for Ryan when he returned to the jail. See id. at 122. Mr. Dagey testified that Dr. Flinders did not tell Mr. Dagey that Ryan was receiving intravenous fluids at the hospital. See id. On July 3, nursing staff performed neurological checks on Ryan, resulting in Glascow coma scores of 8 at 12:00 a.m., 6 at 8:00 a.m., and 7 at 4:00 p.m. See Thornton Decl. Ex. A at A-60 to A62, A-66. Nursing notes also show that Ryan's lungs were clear, that intravenous fluids were being given, and that he did not have pain. See id. at A-60 to A-62. Ryan had one incident of liquid stool at 4:00 p.m., and cried out briefly in the afternoon. See id. Respiratory, gastrointestinal, genitourinary, oral and skin assessments were normal. See id. at A-63 to A-65. Ryan remained nonverbal. Id. A-63 to A-65, A-98, A-100. His Braden score on July 3 was 14, including a score of 1 indicating very poor nutrition and a score of 1 indicating that he was bedfast. See Wittels Decl. Ex. 35 at 00035-36. Nursing notes indicate that Ryan needed "maximum assist supervise," which is a high level of assistance. See Thornton Decl. Ex. A at A-64. A physical therapy note from July 3 states that Ryan was "mostly non-verbal would sometimes respond to questions with 1-2 word answers. But would speak so softly that he was difficult to understand." Thornton Decl. Ex. A. at A-98. The physical therapy note also states that Ryan was able to move his arms and legs with assistance, but that his mobility was low, and the physical therapist marked "N/A" for moving supine to sit, sit to stand, bed to chair and toilet. See id. Nurse Nieves Douglass testified that on July 3, she could not rouse Ryan in the morning, but that by 10:00 a.m., he was sitting up, was alert and awake, and followed her with his eyes, but was still non-verbal. See Thornton Decl. Ex. H at 15-17. He sat up when she asked him to. See id. Nurse Mary Shaw testified that on July 3, Ryan followed some commands, but refused the dinner tray that she brought. See Thornton Decl. Ex. E at 105. She testified that he was moving in bed on his own, and that he sat up when she asked him to. Id. at 110, 115. 7

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Dr. Matel examined Ryan several times during the morning of July 3. See Thornton Decl. Ex. D at 39-40, 41, 67, 148-49. Dr. Flinders also saw Ryan during the morning. See Thornton Decl. Ex. C at 82. Dr. Matel's note at 10:15 a.m. indicates that Ryan opened his eyes on command, withdrew to pain and though generally non-verbal, responded with a moan when told of being discharged to the jail, and nodded affirmatively when asked if he was hungry. See Thornton Decl. Ex. A at A-34. The notes state that Ryan turned around to his called name and responded with a groan. See Thornton Decl. Ex. A at A-34. His pupils were reactive to light, his vital signs were stable, his abdomen was soft and non-tender, his lungs were clear, and there was no apparent distress. See id. Dr. Matel documented that Ryan was medically stable and ordered a regular diet and discharge to the jail that day. See id. at A-29. Dr. Matel noted that Ryan's mentation had improved, the head CT scan was negative and the head MRI showed no evidence of mass, hemorrhage or infarct or other abnormalities. See id. at A-103. Dr. Matel discharged Ryan with pain medication, and recommendations for oral hydration, nutrition, a regular diet, and an order that Ryan be seen by a jail physician within 24 hours. See id. In Dr. Matel's discharge notes, he states that he discussed the EEG with Dr. Janian, and that Dr. Janian stated that Ryan could have a mild sickle cell crisis. See Wittels Decl. Ex. 37. His notes also indicate a negative MRI and EEG. See id. Dr. Matel's discharge report also states that Dr. Janian thought that Ryan had "a very slight sickle cell crisis, versus malingering." See Thornton Decl. Ex. A at A-103. Dr. Matel testified that he believed that Ryan had a sickle cell crisis and that he was treated for that crisis, and that there was no organic reason for Ryan's failure to talk. See Wittels Decl. Ex. 69 at 116-21; see also Wittels Decl. Ex. 7 at 57-58, 93-95, 112-115. Dr. Matel testified that he and Dr. Flinders thought at the time of discharge that Ryan was potentially malingering. See Wittels Decl. Ex. 69 at 119. Dr. Matel's discharge report, which was dictated at 10:56 a.m. on July 3, also stated that Ryan was given food and drink before discharge and that he would be discharged if he was able to eat and drink. Thornton Decl. Ex. A at A-103. Dr. Matel testified that he received a report from the charge nurse Brian Petker at approximately 1:30 p.m. on July 3 that Ryan had eaten and drank liquids. See Wittels Decl. Ex. 69 at 96-97. Nurse Petker told Dr. Matel that Ryan had eaten "almost 8

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all" of his lunch of a cheeseburger and fries. See id. at 98. Nurse Petker also told Dr. Matel that Ryan was able to drink. See id. at 99. Dr. Matel testified that he asked Dr. Janian if he agreed with Matel and Flinders to discharge Ryan. See Wittels Decl. Ex. 69 at 136. Dr. Janian told Dr. Matel that he thought it was important that Ryan be able to eat and drink before he was released. See id. Dr. Flinders testified that he remembers a verbal report from Dr. Matel and Nurse Petker that Ryan ate lunch on July 3, and that he remembered it because it was critical to Ryan's discharge that he eat. See Wittels Decl. Ex. 7 at 149-50. Dr. Flinders approved Ryan's discharge contingent on his ability to eat and drink. See id. at 153. Ryan's medical file, however, does not indicate that he ate. See Wittels Decl. Ex. 35; see also Wittels Decl. Ex. 69 at 79. Moreover, the nurses who treated Ryan did not recall him eating. At his deposition, Nurse Petker did not recall whether or not Ryan ate his lunch. See Wittels Decl. Ex. 48 at 42-45, 52, 57-62. Regardless of whether he ate lunch, Nurse Shaw testified that she did not see Ryan eat anything and that he refused dinner on July 3. See Wittels Decl. Ex. 34 at 107-08. Nurse Douglass testified that Ryan did not eat in front of her, and that being able to eat was a condition of discharge. See Wittels Decl. Ex. 49 at 28, 30. She testified that she told Nurse Shaw that Ryan had to eat before he could be discharged. See id. at 35. On the afternoon of July 3, Ryan had a Glascow coma score of 7, was non-verbal, refused food, was incontinent of liquid stool and cried out, and continued to require a high level of care. See Wittels Decl. Ex. 35; Thornton Decl. Ex. A at A-60 to A-64. The notes also indicate that he had a Braden score that would require a mattress pump. See id. The first physician notes from the jail upon Ryan's release indicate that he was giving short answers, laying face down on his bed, and refusing to get up. See Wittels Decl. Ex. 22. Dr. Matel's discharge summary indicated that Ryan should be given pain pills and encouraged to drink fluids orally, and that the jail physician should follow up within 24 hours. See Wittels Decl. Ex. 47. Dr. Matel issued no other orders, placing Ryan on the jail's regular diet and directing no limits on his activity, no referrals, no special care and no special supplies. See id. The discharge summary states that there the discharge diagnosis was: (1) sickle cell disease; (2) altered mental status, thought to be malingering; and (3) anemia, mild, of chronic disease. 9

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See Thornton Decl. Ex. A at A-103. On the afternoon of July 3, jail personnel, Ms. Earlene DeBeni, consulted with Sutter's discharge coordinator, Jeanette Romano, about Ryan. See Wittels Decl. Ex. 50 at 96-112. Ms. DeBeni testified that Ms. Romano told Ms. DeBeni that everything was resolved with Ryan, that he had eaten and that he was ready to go back to the jail. See id. Ms. DeBeni, however, testified that as a matter of routine practice, Sutter would not write a discharge order that said "no special care or supplies." See Wittels Decl. Ex. 50 at 107. Ryan was released to the jail on July 3, 2007. Dr. Flinders stated in his deposition that he believed that the discharge instructions to the jail asked that Sutter be notified if Ryan's improvement did not continue or if he got worse. See Wittels Decl. Ex. 7 at 61. The discharge summary does not contain this instruction. Ryan died six days later, on July 9, 2007. The autopsy report indicated that the cause of Ryan's death was an "acute sickle cell anemia vaso-occulative and hemolytic crisis," with a contributing factor of severe dehydration, and that early detection may have prevented his death. See Wittels Decl. Ex. 80. Discussion 1. Procedural issues Defendant Janian argues that his motion for summary judgment should be granted as unopposed because Plaintiffs' opposition was filed four hours late, at 4:00 a.m. on June 12, 2010 instead of on June 11. However, Dr. Janian cites no prejudice that was caused by the late filing, and did not ask for any extra time to file the reply. The Court declines to do so. Dr. Janian also argues that Plaintiffs' opposition is not procedurally responsive to Dr. Janian's motion because Plaintiffs oppose summary judgment as to the eighth claim against Dr. Janian, but Dr. Janian did not move for summary judgment on that claim. To the extent that Plaintiffs have argued about claims that are not at issue, the Court has not considered those arguments. 2. Summary judgment as to the first, third and sixteenth claims Plaintiffs first, third and sixteenth claims allege violations of 42 U.S.C. § 1983. Both the Sutter Defendants and Defendant Janian move for summary judgment of these claims on the grounds 10

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that Defendants are not state actors, that Defendants did not act with deliberate indifference, and that the Sutter Defendants did not have a policy or practice that caused any deprivation of constitutional rights as required by Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694 (1977). As stated in Monell, Congress intended municipal corporations and other local government units to be included among those persons to whom § 1983 applies. Id. at 688-89. Liability under § 1983 has been extended to private entities that act under color of state law. See Sable Commc'ns of Cal. Inc. v. Pacific Tel. & Tel. Co., 890 F.2d 184, 189 (9th Cir.1989) (willful participation of private corporation in joint activity with state or its agent taken under color of state law). Plaintiffs argue that because there is a contract between the Sutter Defendants and the County, these Defendants are state actors. A. State actors

There are four ways to identify when a private actor's conduct qualifies as state action for purposes of § 1983: (1) the private actor performs a public function; (2) the private actor engages in joint activity with a state actor; (3) the private actor is subject to governmental compulsion or coercion; or (4) there is a governmental nexus with the private actor. See Gorenc v. Salt River Project Agric Imp. and Power Dist., 869 F.2d 503, 507-08 (9th Cir. 1989); Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2002). "Under the public function test, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations." Kirtley, 326 F.3d at 1093 (citing Lee v. Katz, 276 F.3d 550, 553-54 (9th Cir. 2002) (internal quotation marks omitted)). The public function test is satisfied only on a showing that the function at issue is "both traditionally and exclusively governmental." Id. A private physician or hospital that contracts with a public prison system to provide treatment for inmates performs a public function and acts under color of law for purposes of § 1983. See West v. Atkins, 487 U.S. 42, 56 n.15 (1988) ("[A]lthough the provision of medical services is a function traditionally performed by private individuals, the context in which respondent performs these services for the State (quite apart from the source of remuneration) distinguishes the relationship between respondent and West from the ordinary physician-patient relationship. 11

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Respondent carried out his duties at the state prison within the prison hospital. That correctional setting, specifically designed to be removed from the community, inevitably affects the exercise of professional judgment.'); see also Lopez v. Dep't of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) ("Here the district court's sua sponte dismissal was improper because Lopez's complaint alleges that defendants Maryvale Samaritan Hospital ("Maryvale") and Southwest Ambulance Service ("Southwest") are under contract with the state of Arizona to provide medical services to indigent citizens. These allegations are sufficient to support a section 1983 action because under either the joint action or the government nexus analysis they set forth a claim that defendants Southwest and Maryvale act under color of state law."); Dixon v. Baptist South Medical Hospital, 2010 WL 431186, at *5 (M.D. Ala. Feb. 1, 2010) ("The law is well settled that "a private physician ... under contract with a state to provide medical care to inmates `acts under color of state law for purposes of section 1983 when undertaking his duties' to treat an inmate." . . . It likewise follows that a private hospital under contract with a state to provide medical services to inmates acts under color of state law for § 1983 purposes.") (internal citations omitted); Ayala v. Andreason, 2007 WL 1395093, at *3 (E.D. Cal. May 10, 2007) ("His employer-Queen of the Valley Hospital-was under a contract with state prison authorities for inmate referrals. As an agent of the hospital, defendant Klingman performed the catheter removal surgery pursuant to that contract and a referral approved by state prison officials. There is nothing to meaningfully distinguish these facts from West, where a private physician performed medical services under a contract to do so."). In West, the defendant, a physician under a part-time contract to provide medical services to inmates, examined a prisoner for an orthopedic consultation at the Central Prison Hospital. In determining that the defendant, Dr. Atkins, acted under color of state law for purposes of § 1983, the court stated: "It is only those physicians authorized by the State to whom the inmate may turn. Under state law, the only medical care West could receive for his injury was that provided by the State. The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other `state employees' does not alter the analysis." West, 487 U.S. at 55; id. at 51 ("Doctor Atkins' professional and ethical obligation to make independent medical judgments did not set him in conflict with the State and other prison 12

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authorities. Indeed, his relationship with other prison authorities was cooperative. `Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve.'") (quoting Polk County v. Dodson, 454 U.S. 312, 320 (1981)). Further, the West Court stated: It is the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide adequate medical care to West; the State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract. Id. at 55-56. Here, Sonoma County contracts with the Sutter Defendants for Sutter Medical Center to provide medical services to inmates. See Wittels Decl. Ex. 1. The contract specified that the County owned the facility, and maintained and supported its residency program, and that the Sutter Defendants leased and operated the hospital on behalf of the County for its residents. See id. at 1. Under the contract, the Sutter Defendants agreed to undertake certain obligations, including the assumption of hospital operations and of physician contracts. See id. at 1, 3, Ex. 2.2 to Contract. The Sutter Defendants were also obligated to provide inpatient care for inmates in the custody of the Sonoma County Sheriff's Department, and the County was obligated to pay a rate not to exceed a certain percentage of the billed charges. See id. at § 10.5(d); § 10.11.4(b); Ex. 2. Further, County jail policies confirm that Sutter Medical Center is the designated off-site facility for treatment of inmates. See Wittels Decl. Ex. 3 ("Those patients who require health care beyond the resources available in the facility or whose adaption to the correctional environment is significantly impaired will be transferred to Sutter Medical Center."); Ex. 4 ("inmates requiring medical/surgical inpatient care will be transferred to Sutter Medical Center as deemed necessary by the responsible physician. . . . CFMG's physician will refer all patients requiring inpatient care to Sutter Medical Center. . . Physician/medical staff at Sutter Medical Center will be responsible for inmates in the hospital."). 13

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As in Ayala, there is nothing in this case to meaningfully distinguish it from West. It is undisputed that the Sutter Defendants and their physicians were contractually obliged to undertake medical treatment of inmates like Ryan. The fact that the Sutter Defendants and their doctors perform their services at a location other than the jail is not dispositive. See, e.g., Dixon, 2010 WL 431186, at *5. Similarly, the fact that Sutter Medical Center is a privately owned facility that cares for patients other than inmates does not preclude a finding of state action. As described in West, a hospital or physician does not have to be exclusively involved in providing medical services to inmates at a prison to be found to be a state actor. Further, even though there is some evidence that there were other hospitals to which Ryan could potentially have been sent (see, e.g., Thornton Reply Decl. Ex. A at 47 (Ms. DeBani testified that: "We have a contract with both Memorial Hospital and Sutter Hospital, and . . . we don't have a contract with Kaiser, but that doesn't mean in an emergency we wouldn't send them to Kaiser.")), West and its progeny do not foreclose a finding of state action where the hospital may take other patients or the jail may use other providers. The Sutter Defendants rely on Scott v. Eversole Mortuary, 522 F.2d 1110 (9th Cir. 1975), but Scott is factually distinguishable and pre-dates West. In Scott, the plaintiffs sued Eversole, which had contracted with Mendocino County to provide morgue services and facilities, alleging that Eversole discriminated in refusing to provide funeral services for American Indians. See Scott, 522 F.2d at 1113. Under the facts of Scott, the court examined the degree of state involvement in Eversole's allegedly discriminatory activities. The court found that the contract for morgue services between Eversole and the County was not by itself sufficient to show an interdependent relationship for purposes of finding state action. Scott, 522 F.2d at 1114-15. The court further noted that the acts complained of in the lawsuit did not directly occur as a result of the contract between Eversole and the County because Eversole performed its contractual obligations to provide morgue services without regard to race. Rather, its subsequent refusal to provide funeral services was the issue in the lawsuit. More importantly, in Scott, unlike in this case regarding the provision of medical treatment to prisoners, the "appellants do not claim that providing funeral services is a public function traditionally performed by government agencies." Scott, 522 F.2d at 1114. Under the circumstances of that case, the Scott court determined that Eversole was not a state actor under § 1983. Other cases 14

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cited by the Sutter Defendants are similarly inapposite. See, e.g., Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th Cir. 1999) (hospital was not a state actor where a prospective employee sued the hospital for refusal to hire); Briley v. California, 564 F.2d 849 (9th Cir. 1977) (physician, who did not serve as the medical examiner for the jail, and the hospital were not state actors, but the physician who was the medical examiner at the jail was a state actor); Taylor v. St. Vincent's Hospital, 523 F.2d 75 (9th Cir. 1975) (in a pre-West case, the hospital, which did not have a contract with the government, was not state actor even though the plaintiff argued that the hospital performed an essential public service and it was the only maternity ward where the plaintiff could receive a tubal ligation at the time of her cesarean section); Coles v. Eagle, 2009 WL 2700210 (D. Haw. Aug. 27, 2009) (no state action by hospital that did not have contract with government entity and that refused to treat arrestee because of his race for injuries sustained during the arrest). The Sutter Defendants also argue that treating the Sutter Defendants as state actors could lead to increased operating expenses, which might, in turn, lead to it ceasing medical treatment at that site sometime in the future. However, this policy argument is speculative and runs contrary to Ninth Circuit authority. Accordingly, there is no triable issue of fact that the Sutter Defendants and Dr. Janian were state actors for purposes of § 1983 by virtue of the Sutter Defendants' medical services contract with the County. B. Deliberate indifference

"Deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). This may be shown in the medical context by "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 105-06. Further, deliberate indifference occurs when an official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). "In determining deliberate indifference, we scrutinize the particular facts and look for substantial indifference in the individual case, indicating more than mere negligence or isolated occurrences of neglect. . . . While poor medical treatment will at a certain point rise to the level of 15

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constitutional violation, mere malpractice, or even gross negligence, does not suffice." Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Deliberate indifference can be shown where there has been denial, delay or intentional interference with medical treatment. Wood, 900 F.2d at 1334. However, a difference in medical opinion does not constitute deliberate indifference. Sanchez .v Vild, 891 F.2d 240, 242 (9th Cir. 1989). The due process clause is not implicated by negligence or even gross negligence, but is by deliberate indifference. See Daniels v. Williams, 474 U.S. 327, 328 (1986); L.W. v. Grubbs, 92 F.2d 894, 896-97, 900 (9th Cir. 1986). Deliberate indifference may include "a failure to respond to a known medical problem, a failure to provide a system of ready access to adequate medical care, and a failure to provide a medical staff competent to examine and diagnose inmate's problems." Eres v. County of Alameda, 1999 WL 66519, at *8 (N.D. Cal. Feb. 1, 1999). Deliberate indifference may be "inferred when a doctor's treatment decisions are so far afield of accepted professional standards that no inference can be drawn that the decisions were actually based on medical judgment." See, e.g., Vann v. Vandenbrook, 596 F. Supp. 2d 1238, 1243 (W.D. Wisc. 2009) (doctor failed to treat 133 cuts on a suicidal inmate). Deliberate indifference may be "established by a showing of grossly inadequate care as well as by a decision to take an easier but less efficacious course of treatment." See, e.g., McElligot v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (failure of doctor to diagnose cancer even when prisoner was in tremendous pain and lost weight). Finally, medical care that is "so cursory as to amount to no treatment at all" can satisfy a deliberate indifference standard. See, e.g., Parzyck v. Prison Health Servs., Inc., 290 Fed. Appx. 289, 291 (11th Cir. 2008) (failure of prison medical staff to provide an orthopedic consultation on two occasions even though consultations had been recommended and prisoner in obvious pain). Evidence of an improper or ulterior motive can support a conclusion that a defendant failed to exercise sound medical judgment but instead acted with a culpable state of mind. See, e.g., Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (". . . Jackson has alleged the doctors chose to deny him the opportunity for a kidney transplant, not because of an honest medical judgment, but on account of personal animosity. If Jackson proves that claim at trial, and he has shown that the delay in performing the kidney transplant was medically unacceptable, he will have shown that the doctors 16

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were deliberately indifferent to his serious medical needs."); Chance v. Armstrong, 143 F.3d 698, 704 (2d Cir. 1998) ("Crucially, [the plaintiff] has also alleged that Dr. Moore and Dr. Murphy recommended extraction not on the basis of their medical views, but because of monetary incentives. This allegation of ulterior motives, if proven true, would show that the defendants had a culpable state of mind and that their choice of treatment was intentionally wrong and did not derive from sound medical judgment."); Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985) ("Furthermore, if necessary medical treatment has been delayed for non-medical reasons, a case of deliberate indifference has been made out. Plaintiff alleged that Ancata was indigent and that the defendants put the financial interest of Prison Health Services ahead of the serious medical needs of Ancata.") (internal citations omitted). Suspicions of malingering may also be considered an indication of an ulterior motive whereby a defendant failed to take a plaintiff's condition seriously and thus acted recklessly in failing to provide proper care. See, e.g., Thomas v. Arevalo, 1998 WL 427623, at *9 (S.D. N.Y. July 28, 1998) ("There is evidence sufficient to support an inference that the State Defendants and defendant Kalnins considered plaintiff a possible malingerer. A reasonable jury could infer that defendants had a motive for failing to take plaintiff's complaints seriously based on this characterization.") (internal citations to evidence omitted); Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) ("The fact that Nurse Dunbar and Dr. Benjamin may have based their refusal to treat Walker's pain on a good-faith belief that he was malingering, that he was not in pain but was merely trying to get high with the narcotic painkiller, is an issue for the jury.") Here, there is circumstantial evidence suggesting that non-medical motives may have influenced both Ryan's treatment and his discharge. First, the contract between the Sutter Defendants and the County provides that the County receives a billing discount for treatment of inmates. Second, there is evidence that doctors expected Ryan to remain at the hospital for a short time. A note from the patrol division guards dated July 1 stated that Ryan would likely be kept at Sutter Medical Center for at least 48 hours, and in fact that Ryan was discharged about 48 hours later. Further, Dr. Flinders stated that Ryan would be transferred back to jail as long as the tests were inconclusive. Although Dr. Matel testified that he believed that Ryan had a sickle cell crisis 17

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that was treated, and there were no more tests available to determine an organic cause for his failure to speak, the medical evidence shows that Ryan was not much improved when he was discharged. Further, the discharge instructions did not include any special provisions for Ryan even though there is evidence that he was not fully recovered. For example, although doctors performed numerous tests on Ryan that were all normal or negative, the medical records on the day of Ryan's release create a triable issue of fact that he was sufficiently recovered to be transferred back to jail, especially without special conditions, because even though nurses reported that Ryan moved his arms and legs on his own, he was also incontinent of liquid stool, non-verbal, had low Glascow coma scores and a Braden score that indicated he needed a mattress pump. Further, Ryan's discharge summary, which was dictated on the morning of his discharge, states that Ryan was given food and drink, although he had not been given his lunch at that time and there is evidence that he refused dinner before his discharge. Although Dr. Matel states that he was told by Nurse Petker that Ryan ate, there is no evidence in Ryan's medical records to that effect and no nurse who was involved with Ryan's case remembers him eating. In addition, there is evidence that Dr. Matheson told Ms. George that Sutter Medical Center was ill-equipped to handle Ryan's case. Further, Dr. Matel testified that he and Dr. Flinders thought at the time that Ryan was potentially malingering. Thus, viewed in the light most favorable to Plaintiffs, this evidence raises a triable issue of fact that the Sutter Defendants had an ulterior financial motive, had predetermined the length of Ryan's hospital stay and had no intention of fully treating Ryan, all in violation of his constitutional rights. As to Dr. Janian, he interpreted Ryan's EEG and was consulted by Dr. Flinders and Dr. Matel regarding the discharge decision. There is no dispute that Dr. Janian provided an assessment of the EEG that his expert, as well as Plaintiffs' expert, opines was appropriate. See Andino Decl. Ex. J; Wittels Decl. Ex. 66 at Rebuttal Report to Dr. Kenneth Laxer. However, there is evidence regarding Dr. Janian's involvement in Ryan's care, which, when viewed in the light most favorable to Plaintiffs, raises a triable issue of fact as to whether Dr. Janian violated Ryan's constitutional rights. According to Dr. Matel's progress notes, Dr. Matel specifically asked Dr. Janian if he agreed that it was okay to discharge Ryan. See Wittels Decl. Ex. 69 at 136. While Dr. Janian told Dr. Matel that he thought it was important that Ryan be able to eat and drink before being discharged, 18

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the discharge summary also states that Dr. Janian believed that Ryan "has a normal sleep pattern with possibly a somewhat slowed awake pattern consistent with which might be a very slight sickle cell crisis, versus malingering." Thornton Decl. Ex. A at A-103. Further, Plaintiffs' hematology expert opined that Dr. Janian believed that Ryan was malingering. See Declaration of Ralph Andino Ex. L ("It is my understanding from the information that Dr. Janian -- who was initially consulted in ER -- communicated and supported the diagnosis of `malingering' to the medical team."). A reasonable jury could find that Dr. Janian thought that Ryan was malingering and therefore failed to provide adequate care. See, e.g., Thomas, 1998 WL 427623, at *9. Accordingly, Dr. Janian's motion for summary judgment as to Plaintiffs' first, third and sixteenth claims is denied. C. Policy of deliberate indifference

The Sutter Defendants argue, and Plaintiffs dispute, that in order to find the Sutter Defendants liable pursuant to § 1983, Plaintiffs must prove that an official policy or custom of Sutter caused the constitutional violation pursuant to Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Although there is no binding Ninth Circuit authority on this issue, the weight of authority from other circuit courts and other district courts in this circuit supports the Sutter Defendants' position. See, e.g., Buckner v. Toro, 116 F.3d 450 (11th Cir. 1997) (affirming the district court's decision that the Monell policy and practice requirement applies in suits against private entities performing functions traditionally within the exclusive prerogative of the state, such as the provision of medical care to inmates); Street v. Corrections Corp. of Am., 102 F.3d 810, 81718 (6th Cir. 1996) (granting summary judgment as to publicly held corporation providing jail services because there was no evidence of a policy or custom attributable to the private entity); Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990) ("Private employers are not liable under § 1983 for the constitutional torts of their employees, unless the plaintiff proves that `action pursuant to official ... policy of some nature caused a constitutional tort.'") (internal citations omitted); Lux by Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir. 1988); (affirming summary judgment where there was no evidence of a policy or custom by private entities); Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir. 1982) ("Moreover, just as a municipal corporation is not vicariously liable upon a theory of respondeat superior for the constitutional torts of its 19

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employees, a private corporation is not vicariously liable under § 1983 for its employees' deprivations of others' civil rights."); Draeger v. Grand Central, Inc., 504 F.2d 142, 146 (10th Cir. 1974) ("We are of the opinion then that the appellant department store cannot be held liable solely as a master or principal."); see also Hayes v. Corrections Corp. of Am., 2010 WL 2867821, at *2-3 (D. Idaho July 20, 2010); Carrea v. California, 2008 WL 3931182, at *9 (C.D. Cal. Aug. 26, 2008); Nash v. Lewis, 2007 U.S. Dist. LEXIS 50120 (D. Or. July 6, 2007); but see, e.g., Groom v. Safeway, Inc., 973 F. Supp. 987, 992 n. 4 (W.D. Wash. 1997) (stating in dicta that: "This Court sees no reason why the private employer of a police officer should not be vicariously liable for the officer's acts committed within the scope of his employment."); Segler v. Clark County, 142 F. Supp. 2d 1264, 1268-69 (D. Nev. 2001) ("Therefore, this Court finds that EMSA [a private corporation] is not a municipality. Segler does not need to show a policy or custom by EMSA in order to show liability under § 1983."). The reasoning of the Supreme Court's decision in Monell interpreting the language of the statute and its legislative history supports the weight of authority. The Monell Court concluded that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691. In reaching this conclusion, the Monell Court noted that the language of the original version of § 1983 "plainly imposes liability on a government that, under color of some official policy, `causes' an employee to violate another's constitutional rights." Monell, 436 U.S. at 691-92. Further, the Court examined the legislative history of the Civil Rights Act and concluded: Strictly speaking, of course, the fact that Congress refused to impose vicarious liability for the wrongs of a few private citizens does not conclusively establish that it would similarly have refused to impose vicarious liability for the torts of a municipality's employees. Nonetheless, when Congress' rejection of the only form of vicarious liability presented to it is combined with the absence of any language in § 1983 which can easily be construed to create respondeat superior liability, the inference that Congress did not intend to impose such liability is quite strong. Monell, 436 U.S. at 692, n. 57 (emphasis added). Based on the causation language from Monell, the Fourth Circuit held that plaintiffs must prove that an official policy or custom of a private entity caused the constitutional violation to show liability under § 1983: In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipal corporation 20

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cannot be saddled with section 1983 liability via respondeat superior alone. We see this holding as equally applicable to the liability of private corporations. Two aspects of Monell exact this conclusion. The Court found section 1983 evincing a Congressional intention to exclude the imposition of vicarious answerability. For a third party to be liable the statute demands of the plaintiff proof that the former "caused" the deprivation of his Federal rights. 436 U.S. at 691-92, 98 S.Ct. at 2036. Continuing, the Court observed that the policy considerations underpinning the doctrine of respondeat superior insufficient to warrant integration of that doctrine into the statute. Id. at 694, 98 S.Ct. at 2037. No element of the Court's ratio decidendi lends support for distinguishing the case of a private corporation. Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982). Accordingly, even though there is a triable issue of fact regarding violations of constitutional rights by the Sutter Defendants, they can only be liable under § 1983 if Plaintiffs raise a triable issue of fact that the violations occurred as a result of a policy, decision, or custom promulgated or endorsed by the private entity. Plaintiffs have not done so. Plaintiffs contend that they have introduced evidence of the Sutter Defendants' policies that satisfy the Monell requirement. Specifically, Plaintiffs argue that Dr. Hard testified to a default policy that inmates are treated at Sutter Medical Center and that transfer to other hospitals is discouraged. See Wittels Decl. Ex. 10 at 94-95. However, Dr. Hard testified that Sutter Medical Center is the receiving hospital for inmates, but that if there were extraordinary circumstances that the Sutter doctors could not treat an inmate or the jail wanted him transferred elsewhere, the inmate would be transferred. In addition, Dr. Matheson testified that he considered transferring Ryan to Kaiser, even going so far as calling Kaiser to determine if Ryan was a Kaiser member. See Wittels Decl. Ex. 6 at 166. He also testified that he would not have been "adverse to transfer." Id. at 172. He continued that a transfer "wasn't in my power," and that he "didn't initiate a transfer," but it appears that he was referring to his earlier testimony about his understanding that Kaiser would not accept a non-Kaiser member as a transfer, and Ryan was not a Kaiser member. See id. at 166-170. Plaintiffs also argue that the discounted billing rate in the contract between the Sutter Defendants and the County provided an incentive to discharge inmates quickly. However, the discount by itself is not sufficient, absent a showing of a regular practice of skimping on inmates' care compared to that of other patients -- or any showing that other patients' reimbursement rates did not provide similar discounts. See McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (to 21

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satisfy the theory that a single instance may constitute an official policy, an act must "reflect a disposition to disregard human life and safety so prevalent as to be policy or custom."); cf. City of Oklahoma City v. Tuttle, 471 U.S. 808, 821 (1985) (finding that proof of random acts or isolated incidents of unconstitutional behavior by a non- policymaking employee are insufficient to establish the existence of a municipal policy or custom). Rather, the Patient Care Director at Sutter Medical Center, Kim Sparacio, testified that the policy with respect to inmates is the same as for any other patient, except the policy provides for heightened safety measures. She also testified that there is no policy that differentiates inmate patients from other patients regarding cost containment, insurance or discharge, and that law enforcement is not involved in discharge decisions. See Thornton Decl. Ex. F at 11, 15-19. In addition, Sutter Medical Center has a policy for Patients in Police Custody, which briefly addresses discharge planning and transportation of an inmate upon discharge, and does not involve financial considerations. See Wittels Decl. Ex. 73 (Patients in Police Custody policy). Plaintiffs argue that the Sutter Defendants lack numerous policies that Plaintiffs believe should be in place, such as policies for selection of hospital personnel and handling EEGs, and relevant training manuals, but cite no authority where such a purported lack of policies satisfied Monell. Moreover, the Sutter Defendants had policies addressing at least some of these issues. See, e.g., Wittels Decl. Ex. 73 (Recruitment and Selection policy). Accordingly, Plaintiffs having failed to raise a triable issue of fact as to the existence of a policy or practice by the Sutter Defendants as required under Monell, the Sutter Defendants' motion for summary judgment is granted as to Plaintiffs' first, third and sixteenth claims. 3. Summary judgment as to the twelfth claim Plaintiffs' twelfth claim is for reckless or malicious neglect of a dependent adult pursuant to California Welfare and Institutions Code § 15657, pursuant to the Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA"). See Cal. Welf. & Inst. Code § 15600, et seq. Specifically, Plaintiffs allege that Defendants' conduct rose to the level of reckless, oppressive or malicious neglect that is actionable under California Welfare & Institutions Code § 15657: Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all 22

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other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article. (b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer. Cal. Welf. & Inst. Code § 15657. Neglect is defined as: (a) "Neglect" means either of the following: (1) The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. (b) Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration. (5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health. Cal. Welf. & Inst. Code § 15610.57. The EADACPA excludes liability for acts of professional negligence (see Cal. Welf. & Inst. Code § 15657.2; Delaney v. Baker, 20 Cal.4th 23, 32 (1999)), and does not apply to simple or gross negligence by health care providers. Sababin v. Superior Court, 144 Cal.App.4th 81, 88 (2006). To obtain the remedies provided by EADACPA, "`a plaintiff must demonstrate by clear and convincing 23

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evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.'" Sababin, 144 Cal.App.4th at 89 (quoting Delaney, 20 Cal.4th at 31). Recklessness refers "`to a subjective state of culpability greater than simple negligence, which has been described as a "deliberate disregard" of the "high degree of probability" that an injury will occur.'" Id. Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature. Id. The Sababin court further stated: Our Supreme Court teaches that neglect under the Act "refers not to the substandard performance of medical services but, rather, to the `failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.' [Citation.] Thus, the statutory definition of `neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care. [Citation.]" (Covenant Care, supra, 32 Cal.4th at p. 783, 11 Cal.Rptr.3d 222, 86 P.3d 290.) Sababin, 144 Cal.App.4th at 89; see also Wolk v. Green, 516 F. Supp. 2d 1121, 1133 (N.D. Cal. 2007) ("A civil cause of action under the Elder Abuse statute is governed by the California Welfare and Institutions Code section 15657, which requires that a plaintiff demonstrate `by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse . . . .'") (internal citation omitted). The Sutter Defendants argue that there is no triable issue of fact as to whether Ryan's treatment rose to the level of neglect for purposes of the EADACPA. See Delaney, 20 Cal.4th 23 (neglect found where woman had stage III and IV pressure ulcers); Sababin, 144 Cal.App.4th 81 (neglect found where 38-year-old woman was found with skin sores, ulcers and lacerations); Norman v. Life Care Centers of America, 107 Cal.App.4th 1233 (2003) (neglect found where elderly woman repeatedly fell after climbing out of her bed). The Sutter Defendants note that Ryan was seen by four doctors, and that his doctors had two consultations with specialists. The Sutter Defendants also note that Ryan had his vital signs checked constantly as reflected in nursing notes. They emphasize that when Ryan was discharged, he was alert, aware