Hanson v. Blaine County et al

Filing 82

MEMORANDUM DECISION AND ORDER The Blaine County Defendants' Motion for Summary Judgment (Dkt. 67 ) is GRANTED in part and DENIED in part. The Gooding County Defendants' Motion for Summary Judgment (Dkt. 66 ) is GRANTED in part and DENIED in part. Defendant Peterson's Motion for Summary Judgment (Dkt. 68 ) is GRANTED in part and DENIED in part. Defendants' Motion to Strike (Dkt. 79 ) is DENIED. Plaintiff's Motion to Strike (Dkt. 73 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SCOTT HANSON,
Case No. 1:16-cv-00421-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
BLAINE COUNTY, et al.,
Defendants.

INTRODUCTION
The Court has before it Defendants Gooding County, Shaun Gough, William
Shubert, and Jesus Gonzalez’s (Gooding County Defendants) Motion for Summary
Judgment (Dkt. 66); Defendants Blaine County and Gene D. Ramsey’s (Blaine County
Defendants) Motion for Summary Judgment (Dkt. 67); and Defendant Judith Peterson’s
Motion for Summary Judgment (Dkt. 68). Also before the Court is Plaintiff’s Motion to
Strike (Dkt. 73) and Blaine and Gooding County Defendants’ Motion to Strike (Dkt. 79).
The Court heard oral argument on June 25, 2018, and now issues the following decision.
BACKGROUND
The following facts are material to the resolution of the issues in this case. Where
material facts are in dispute, the Court has included Plaintiff's version of facts, insofar as
that version is not contradicted by clear documentary evidence in the record. See Scott v.
Harris, 550 U.S. 372, 380 (2007).

MEMORANDUM DECISION AND ORDER - 1

On August 14, 2014, Plaintiff Scott Hanson underwent surgery for removal of
cataracts in his right eye. Wood Decl. Ex. 1 85:10-25, 87:4-5, Dkt. 71-1 (“Hanson Dep.”)
Because complications during the surgery prevented Mr. Hanson’s surgeon, Dr. William
Fitzhugh, from removing all of the lens material, a second surgery was scheduled for
August 21. Id. Ex. 2 at 1, Dkt. 72-2 (“Fitzhugh Statement”). This surgery went “very
well.” Id. Dr. Fitzhugh also performed surgery on Mr. Hanson’s left eye on September
11, without complication. Id. Afterwards, Dr. Fitzhugh told Mr. Hanson to continue
taking previously prescribed medication, including Prednisone, a topical antiinflammatory eye drop medicine. Id. He also told Mr. Hanson to let him know of any loss
of vision, flashing lights, or “floater” phenomena in either eye. Id.; Hanson Dep. 31:4,
Dkt. 71-1. A follow-up appointment was scheduled for two to three weeks later. Id.
However, on September 19, Mr. Hanson was arrested for a parole violation, and
was not allowed to take his eye drops with him to jail. Hanson Dep. 23:17-27:21, Dkt.
71-1. During the booking process, Mr. Hanson told the booking officer, Deputy Hitt, that
he needed immediate medical attention because he was taking eye drops for post-cataract
surgery care and had not been allowed to bring them. Davis Decl. Ex. A, Booking Video,
Dkt. 67-4; Def.’s SOF ¶ 3. Mr. Hanson also told Deputy Hitt that he was taking five
medications: Prozac, Buspar, Ibuprofen, Zyrtec, Prilosec, and one whose name he could
not remember. Davis Decl. Ex. A, Booking Video, Dkt. 67-4. Mr. Hanson was told that
there was no one in the nurse’s station at that time and that he would be seen as soon as
there was. Hanson Dep. 48:8-20, Dkt. 71-1.

MEMORANDUM DECISION AND ORDER - 2

As part of the booking process, Deputy Hitt completed a booking form, which
both he and Mr. Hanson signed. Davis Decl. Ex. B at 4, Dkt. 67-5; Carey Aff. Ex. B
54:18-21, 55:2-4, Dkt. 68-6. It contained the following questions and answers:
Question
Do you need immediate medical attention
(if yes, notify medical).
Do you currently have any health
problems?
Are you currently taking any medication?
Which pharmacy do you use?

Answer
Y MENTAL HEALTH MEDS
Y CATARACT SURGERY, MENTAL
HEALTH
Y PROZAC, BUSPAR, IBPROFEN,
ZYRTEC, PRILOSEC, AND ONE
UNKNOWN
ALBERTSONS

Davis Decl. Ex. B at 4, Dkt. 67-5.
Defendant Peterson was a licensed nurse employed by Correctional Healthcare
Companies (“CHC”), which Blaine County contracted with to provide medical care to
inmates at the jail. Carey Aff. Ex. A 15:24-16:5, 26:4-16, 27:16-20, Dkt. 68-5. After
reviewing Mr. Hanson’s booking report, Defendant Peterson called Albertsons to verify
and order Mr. Hanson’s prescriptions. Peterson Dep. 49:5-9, Dkt. 71-5. However, she did
not order his Prednisone eye drops, despite Mr. Hanson’s standing prescription for them
at that pharmacy.1 Hanson Dep. 35:5-7, Dkt. 71-1.
Mr. Hanson was held in Blaine County Jail until September 22, and did not
remember being seen by any medical personnel during this time. Hanson Dep. 49:2-6,
Dkt. 71-1. On September 22, Defendant Shubert transported Mr. Hanson to Gooding

1

Defendant Peterson testified that the Albertsons pharmacy did not tell her about any eye drops
during the phone call. Peterson Dep. 49:5-9, Dkt. 71-5.

MEMORANDUM DECISION AND ORDER - 3

County Jail. Wood Decl. Shubert Deposition Exhibits 29:8-16 (“Shubert Dep.”), Dkt. 713. Throughout the drive, Mr. Hanson “complained of [his] eye condition and need for
medications and medical attention.”2 Supp. Wood Decl. Ex. 1 at 2, Dkt. 75-3.
When Mr. Hanson arrived at Gooding County Jail, he explained his needs to
Defendant Gonzalez, the booking officer, and stated that he had been off his medications
for 72 hours. Supp. Wood Decl. Ex. 1 at 2, Dkt. 75-3; Hanson Dep. 30:8-31:6, Dkt. 71-1.
Defendant Gonzalez told him that only an emergency would justify seeing medical staff
sooner that the regular Wednesday visit, and that he did not think it was an emergency in
Mr. Hanson’s case. Id. In response, Mr. Hanson stated that “this was prescribed
medication that [he] needed to be using on an hourly basis” and “reiterated the
circumstances regarding [his] eye surgery and [his] need for [his] eye drops and followup care.” Id.
On September 23, Mr. Hanson completed an inmate request form, or “kite,”
requesting a doctor’s appointment and asking that his prescriptions be renewed. Wood
Decl. Shubert Deposition Exhibits at 23, Dkt. 71-3. The following day, Mr. Hanson was
seen by Dr. Olson, the doctor who had a contract to provide medical services to Gooding
County Jail detainees at that time. Hanson Dep. 30:18-31:9, Dkt. 71-1; Shubert Dep.

2

Defendant Shubert testified that he did not recall Hanson telling him he needed eye drops or
medical attention. Shubert Dep. 45:5-25, Dkt. 71-3. He also testified: “I trust myself that if he would have
said something, I would have had further action when I returned back to the jail.” Id. 45:9-11. However,
in resolving the pending summary judgment motions, the Court must accept Hanson’s version of this
communication.

MEMORANDUM DECISION AND ORDER - 4

51:19-23, Dkt. 66-8. Dr. Olson “acknowledge[d] the seriousness of [his] condition and
ordered [his] prescriptions, including eye drops, from Kendrick pharmacy.” Supp. Wood
Decl. Ex. 1 at 3, Dkt. 75-3; Hanson Dep. 31:7-12, Dkt. 71-1.
Later on September 24, the Gooding County Jail received Mr. Hanson’s
prescriptions from the Kendrick pharmacy. Gonzalez Dep. 31:2-32:6, Dkt. 71-4. Mr.
Hanson saw the delivery truck from the pharmacy arrive, but even though he told jail
staff that his medicine was on the truck, he was transported back to Blaine County Jail
without having received them. Hanson Dep. 31:8-23, Dkt. 71-1. He was told that the
medicine was too expensive and that he would have to get it at Blaine County Jail. Id.
During the drive, Mr. Hansen explained that he was experiencing what looked like
“black ink” raining down from the top part of his eye, and that his eye was full of
“floaters.” Id. 32:9-22. When he arrived back at Blaine County Jail, Mr. Hanson
immediately demanded to be seen by medical staff because he had lost all sight in his
right eye. Supp. Wood Decl. Ex. 1 at 5, Dkt. 75-3. They refused, and later that day, Mr.
Hanson filled out a kite in which he stated that his eyes were “sore and cloudy.” Peterson
Deposition Exhibits, Part 2 at 7, Dkt. 71-7.
On September 25, Mr. Hanson told Defendant Peterson that he needed his
Prednisone, and that he had just gotten a prescription from Dr. Olson in Gooding. Carey
Aff. Ex. B 34:4-10, Dkt. 68-6. Defendant Peterson ordered the Prednisone, and Mr.
Hanson received it within three hours. Id. 34:4-23.

MEMORANDUM DECISION AND ORDER - 5

On September 29, Mr. Hanson filed another kite stating “loss of sight in right
eye,” “need to be seen by outside provider ASAP,” and “medication not being dispensed
as prescribed.” Wood Decl. Peterson Deposition Exhibits, Part 2 at 8, Dkt. 71-7.
Defendant Peterson called Dr. Fitzhugh’s office and spoke with the doctor on call, who
told her to send Mr. Hanson to the Twin Falls emergency room. Carey Aff. Ex. A 82:323, Dkt. 68-5. However, she did not do so, even though she had told Mr. Hanson that
they would get him to the emergency room if she could not reach Dr. Fitzhugh. Hanson
Dep. 115:5-12, Dkt. 71-1. Instead, Mr. Hanson saw Dr. Williams, an optometrist. Supp.
Wood Decl. Ex. 1 at 4, Dkt. 75-3. By the time Mr. Hanson saw Dr. Williams, he was
“completely blind in [his] right eye.” Id.
Dr. Fitzhugh saw Mr. Hanson on October 1. Fitzhugh Statement at 2, Dkt. 72-2. At
this time, Mr. Hanson’s “visual acuity in his right eye was less than 20/400” and “[h]is
intraocular pressure was reduced to zero which is a common concomitant of retinal
detachment.” Id. Though Dr. Fitzhugh immediately referred Mr. Hanson to retinal
subspecialists in Boise, a series of surgeries failed to improve Mr. Hanson’s vision, which
has progressively declined. Id. In Dr. Fitzhugh’s opinion, “the delay in examination and
denial of prescribed necessary medications” was the cause of the decline. Id.
On October 31, 2014, Mr. Hanson filed a claim for damages pursuant to the Idaho
Tort Claims Act with Gooding County and Blaine County. Compl. ¶ 32, Dkt. 46. The
claims were denied. Id. Mr. Hanson filed a complaint in this Court on September 16,
2016. (Dkt. 1.)

MEMORANDUM DECISION AND ORDER - 6

LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the nonmovant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152,
1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable
inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.

MEMORANDUM DECISION AND ORDER - 7

2001) (en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
ANALYSIS
1.

Federal Law Claims
County Defendants seeks dismissal of Mr. Hanson’s federal claims against them

because there has been no showing they were deliberately indifferent to Hanson’s
medical needs, they are protected by qualified immunity, and there is no basis for
municipal liability. Defendant Peterson asks the Court to dismiss all of Mr. Hanson’s
federal claims against her because Hanson has not shown she was deliberately indifferent
to his medical needs. The Court will address each of these arguments below.
A.

Deliberate Indifference

Mr. Hanson claims that Defendants violated his constitutional rights under the
Eighth and Fourteenth Amendments through their deliberate indifference to his medical
needs while he was incarcerated.

MEMORANDUM DECISION AND ORDER - 8

(1)

Deliberate Indifference Under the Eighth Amendment

The Eighth Amendment of the United States Constitution protects prisoners
against cruel and unusual punishment while incarcerated. Under 42 U.S.C. § 1983, to
maintain an Eighth Amendment claim based on prison medical treatment, an inmate must
show “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
104 (1976). In the Ninth Circuit, the test for deliberate indifference consists of two parts.
Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006). First, the plaintiff must show a “serious
medical need” by demonstrating that “failure to treat a prisoner's condition could result in
further significant injury or the unnecessary and wanton infliction of pain.” Id. at 1096.
Second, the plaintiff must show the defendant's response to the need was deliberately
indifferent. Id. at 1060. Additionally, a plaintiff must demonstrate that the prison
official’s actions were both an actual and proximate cause of their injuries. See Conn v.
City of Reno, 591 F.3d 1081, 1098–1101 (9th Cir.2010), vacated by 563 U.S. 915 (2011),
reinstated in relevant part 658 F.3d 897 (9th Cir.2011).
(a)

Serious Medical Need

The Ninth Circuit has identified three circumstances in which a medical need may
be regarded as serious: “[1] [t]he existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment; [2] the presence of a medical
condition that significantly affects an individual's daily activities; [3] or the existence of
chronic and substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
1992), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 113

MEMORANDUM DECISION AND ORDER - 9

(9th Cir. 1997). Though the nature of Mr. Hanson’s serious medical need changed during
the course of his incarceration, a reasonable juror could find that Mr. Hanson had a
serious medical need throughout his time in Blaine and Gooding County Jails.
Mr. Hanson’s first serious medical need was for post-operative care. Dr.
Fitzhugh’s instructions to Mr. Hanson after the cataract surgeries indicate that he viewed
the condition of Mr. Hanson’s eyes to be “worthy of treatment.” Fitzhugh Statement at 2,
Dkt. 72-2. Additionally, when Mr. Hanson returned to Blaine County, he had lost all
sight in his right eye and was experiencing pain in that eye. Supp. Wood Decl. Ex. 1 at 5,
Dkt. 75-3; Wood Decl. Peterson Deposition Exhibits, Part 2 at 27, Dkt. 71-7. From these
facts, a reasonable juror could find that Mr. Hanson need for post-operative care, along
with the failure to receive it, “significantly affect[ed] [his] daily activities,” caused him
“substantial pain,” and was a condition that a reasonable doctor would find “worthy or
comment or treatment.” See McGuckin, 974 F.2d at 1059-60.
Mr. Hanson’s second serious medical need was his detached retina. Though it is
unclear at exactly what point Mr. Hanson’s retina became detached, it seems clear and
undisputed that it was at some point during his incarceration, since Dr. Fitzhugh
diagnosed the detached retina on October 1. Fitzhugh Statement at 2, Dkt. 72-2. A
detached retina may constitute a serious medical need. See, e.g., Herrera-Cubias v. Fox,
2012 WL 12539503, at *4 (D. Ariz. Sept. 10, 2012); Trevino v. Browne, 2010 U.S. Dist.
LEXIS 28907, at *22 (S.D. Fla. Jan. 28, 2010).
(b)

Deliberately Indifferent Response

MEMORANDUM DECISION AND ORDER - 10

A plaintiff satisfies the second part of the deliberate indifference test—a
deliberately indifferent response—by showing (a) a purposeful act or failure to respond to
a prisoner's pain or possible medical need and (b) harm caused by the indifference. Jett,
439 F.3d at 1060. In other words, the plaintiff must show that the prison official "kn[ew]
of and disregard[ed] an excessive risk to inmate health and safety.” Colwell v. Bannister,
763 F.3d 1060, 1066 (9th Cir. 2014). Indifference “may appear when prison officials
deny, delay or intentionally interfere with medical treatment, or it may be shown by the
way in which prison physicians provide medical care.” Jett, 439 F.3d at 1060. However,
an “inadvertent [or negligent] failure to provide adequate medical care” alone does not
state a claim under § 1983. Id. (citing Estelle, 429 U.S. at 105).
Defendants Ramsey and Gough
Defendant Ramsey was the Sheriff of Blaine County, and Defendant Gough was
the Sheriff of Gooding County. Compl. ¶¶ 6, 8, Dkt. 46. Mr. Hanson presented no
evidence showing that either had knowledge of an excessive risk to his health or safety.
Defendant Ramsey testified that he did not know what care was given to Mr. Hanson
with regard to his eyes, and that he had never talked to Mr. Hanson. Ramsey Dep. 19:1824, 23:14-18, Dkt. 71-9. Similarly, after Defendant Gough received Mr. Hanson’s claim,
he discussed it with Defendant Shubert because he “wanted to know that history of it”
and “who Scott Hanson was.” Gough Dep. 21:21-23:12, Dkt. 71-8. That testimony is
unrebutted. Therefore, Defendants’ motion for summary judgment on deliberate
indifference grounds is granted as to Defendants Ramsey and Gough.

MEMORANDUM DECISION AND ORDER - 11

Defendant Shubert
Defendant Shubert was a Gooding County Corporal who, on September 22,
transported Mr. Hanson from Blaine County Jail to Gooding County Jail. Compl. ¶ 10,
Dkt. 46; Wood Decl. Shubert Deposition Exhibits 29:8-16 (“Shubert Dep.”), Dkt. 71-3.
Mr. Hanson testified that throughout the drive, he “complained of [his] eye condition and
need for medications and medical attention.” Supp. Wood Decl. Ex. 1 at 2, Dkt. 75-3.
Thus, given Mr. Hanson’s version of events, Defendant Shubert knew of a serious
medical need and failed to act on that knowledge. Therefore, Mr. Hanson has raised a
genuine issue of material fact as to whether Defendant Shubert was deliberately
indifferent, and the Court will deny Defendant Shubert’s motion for summary judgment.
Defendant Gonzalez
Defendant Gonzalez was a Gooding County officer who booked Mr. Hanson into
Gooding County Jail on September 22. Compl. ¶ 11, Dkt. 46; Supp. Wood Decl. Ex. 1 at
2, Dkt. 75-3. Mr. Hanson testified that during the booking, he explained his needs to
Defendant Gonzalez and stated that he had been off his medications for 72 hours. Supp.
Wood Decl. Ex. 1 at 2, Dkt. 75-3; Hanson Dep. 30: 8-31:6, Dkt. 71-1. Defendant
Gonzalez replied that only an emergency would justify Mr. Hanson seeing medical staff
sooner that the usual Wednesday jail visit, and that he did not think that Mr. Hanson’s
case was an emergency. Id. In response, Mr. Hanson explained his need for his prescribed
eye drops and for follow-up care. Supp. Wood Decl. Ex. 1 at 2-3, Dkt. 75-3; Hanson Dep.
31:2-6, Dkt. 71-1. Mr. Hanson did not receive his eye drops until September 25. Carey

MEMORANDUM DECISION AND ORDER - 12

Aff. Ex. B 34:4-23, Dkt. 68-6. From these facts, a reasonable juror could conclude that
Defendant Gonzalez knew of Mr. Hanson’s serious medical need and deliberately failed
to respond. Therefore, Defendant Gonzalez’s motion for summary judgment is denied.
Defendant Peterson
Defendant Peterson, as a contract nurse, was involved in filling Hanson’s
prescriptions and overseeing his medical care. It is undisputed that Peterson called the
Albertsons pharmacy on September 20 to verify and order Mr. Hanson’s prescriptions,
but Mr. Hanson did not receive his prescribed eye drops until September 25. Peterson
Dep. 49:5-9, Dkt. 71-5; Carey Aff. Ex. B 34:24-35:1, Dkt. 68-6. Hanson argues that
Defendant Peterson “neglected to order [his] eye drops for him” and that her claim that
the pharmacy did not tell her about the drops “is contradicted by the undisputed fact that
Scott had them in his possession at the time of arrest, and his testimony that he had an
open prescription for the drops at Albertsons.” Pl.’s Resp. at 7, Dkt. 75; Hanson Dep.
35:5-7, Dkt. 71-1.
During oral argument, counsel for Peterson emphasized Mr. Hanson’s failure to
present evidence of his standing prescription. However, such evidence is not required at
the summary judgment stage. As the non-moving party, Mr. Hanson satisfied his burden
of rebutting Defendant Peterson’s alleged absence of any genuine dispute of material fact
through his testimony that he had a standing prescription. In this way, Mr. Hanson went
“beyond the pleadings” by showing, through his deposition, that a genuine dispute
existed. See Celotex, 477 U.S. at 324. Defendant Peterson has not presented any objective

MEMORANDUM DECISION AND ORDER - 13

facts that would show Mr. Hanson’s testimony to be “blatantly contradicted by the
record.” See Scott, 550 U.S. 372, 380 (2007).
Nevertheless, the Court is not persuaded that there are disputed issues of material
fact which preclude summary judgment on this aspect of Hanson’s deliberate indifference
claim against Peterson. A reasonable juror could conclude that Peterson asked the
pharmacy to fill the prescriptions listed on his booking sheet, but did not take the
additional step of asking for all open or standing prescriptions which Hanson had at that
pharmacy. However, without more, this does not constitute deliberate indifference.
It is true that Peterson was aware from the booking sheet prepared by Officer Hitt
that Hanson had listed cataract surgery as a current health problem, and from this it can
be inferred that she was aware that the surgery was a recent event. The evidence also
indicates that Peterson had some experience treating patients with cataract surgery. But,
what is missing, is an understanding that post-operative care invariably requires the
regular use of prednisone eye drops. The failure to connect the dots in that regard may
have been negligent, but it does not evince the actual knowledge that is necessary to a
finding of deliberate indifference.
However, a reasonable juror could find that Peterson was deliberately indifferent
in failing to send Hanson to the emergency room. On September 29, the doctor on call at
Dr. Fitzhugh’s office told Defendant Peterson to send Mr. Hanson to the Twin Falls
emergency room. Carey Aff. Ex. A 82:3-23, Dkt. 68-5. However, Defendant Peterson did
not do so, even though she had told Mr. Hanson that they would get him to the

MEMORANDUM DECISION AND ORDER - 14

emergency room if she could not reach Dr. Fitzhugh. Hanson Dep. 115:5-12, Dkt. 71-1.
Instead, Mr. Hanson was seen by Dr. Williams, an optometrist, on September 29.
Peterson Dep. 104:14-16, Dkt. 71-5; Supp. Wood Decl. Ex. 1 at 4, Dkt. 75-3. By the time
Mr. Hanson saw Dr. Williams, he was “completely blind in [his] right eye and scared to
death.” Supp. Wood Decl. Ex. 1 at 4, Dkt. 75-3. By the time Mr. Hanson saw Dr.
Fitzhugh on October 1, his retina had detached. Fitzhugh Statement at 2, Dkt. 72-2. From
this evidence, a reasonable juror could conclude that Defendant Peterson’s decision not to
send Mr. Hanson to the emergency room despite her knowledge of the condition of his
eye constituted deliberate indifference.
(c)

Causation

Plaintiffs alleging deliberate indifference must show that the defendants' actions
were both an actual and proximate cause of their injuries. See Conn, 591 F.3d at 1098–
1101. The parties here have presented competing expert reports as to the cause of Mr.
Hanson’s detached retina. County Defendants’ expert, Dr. Lefkowitz, testified that “it is
[his] opinion that it was the mishandling of Plaintiff’s surgery on his right eye that caused
his retina to detach, and not any failure to use Prednisone for a few days.” Lefkowitz
Decl. ¶ 13, Dkt. 67-11. Conversely, in Dr. Fitzhugh’s opinion, “the delay in examination
and denial of prescribed necessary medications” was the cause. Fitzhugh Statement at 2,
Dkt. 72-2. Causation is almost always a question of fact. See, e.g., Lies v. Farrell Lines,
Inc., 641 F.2d 765, 770 (9th Cir. 1981) (“[c]ausation is generally a question of fact for the
jury”). That is certainly the case here, given the conflicting opinions of the experts.

MEMORANDUM DECISION AND ORDER - 15

In summary, the Court finds that disputed issues of material fact exist as to
whether Defendants Gonzalez and Schubert were deliberately indifferent regarding Mr.
Hanson’s need for post-operative care and prednisone eyedrops, and as to whether
Defendant Peterson was deliberately indifferent to Hanson’s medical need for emergency
room care. However, the Court finds that there are no disputed issues of material fact as
to whether Defendant Peterson was deliberately indifferent in failing to ensure that
Hanson was given prednisone eyedrops.
(2)

Deliberate Indifference Under the Fourteenth Amendment

The County Defendants argue that Mr. Hanson’s due process rights are limited to
those under the Eighth Amendment because he was in custody for a parole violation and
was therefore not a pretrial detainee. “Claims by pretrial detainees are analyzed under the
Fourteenth Amendment Due Process Clause, rather than under the Eighth Amendment.”
Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (citing Bell v. Wolfish, 441 U.S. 520,
535 n.16 (1979)).
However, the standards for these claims are essentially the same under both the
Eighth and Fourteenth Amendments. See Frost, 152 F.3d at 1130 (“Because pretrial
detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights
under the Eighth Amendment . . . we apply the same standards.”) Therefore, it is
unnecessary for the Court to decide whether Mr. Hanson was a pretrial detainee because
the Eighth and Fourteenth Amendment deliberate indifference claims are governed by
the same standard.

MEMORANDUM DECISION AND ORDER - 16

B.

Qualified Immunity

The doctrine of qualified immunity “protects government officials from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Qualified immunity gives government officials
“breathing room to make reasonable but mistaken judgments about open legal questions.
When properly applied, it protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v. al–Kidd, 563 U.S. 731, 743 (2011). To determine
whether a government official is entitled to qualified immunity, the Court must determine
whether the facts alleged, taken in the light most favorable to the plaintiff, (1) violated a
statutory or constitutional right, (2) that was clearly established at the time of the
challenged conduct. Moonin v. Tice, 868 F.3d 853, 860 (9th Cir. 2017). Courts may use
their discretion in deciding which of the two prongs to analyze first. Mueller v. Auker,
576 F.3d 979, 993 (9th Cir. 2009).
(1)

Whether Defendants Violated a Constitutional Right

As discussed above, the Court has concluded that after construing the evidence in
a light most favorable to Hanson, there are no disputed issues of material fact that would
support any of the claims against Defendants Ramsay and Gough. However, the Court
also concluded that there are material issues of fact as to whether Defendants Shubert and

MEMORANDUM DECISION AND ORDER - 17

Gonzalez3 violated Mr. Hanson’s Eighth and Fourteenth Amendment rights by exhibiting
deliberate indifference to Mr. Hanson’s medical needs. Therefore, the only remaining
question is whether those rights were clearly established at the time of the injuries
suffered by Mr. Hanson.
(2)

Whether Mr. Hanson’s Right was Clearly Established

County Defendants argue that “the law was not clear as to whether Plaintiff had a
right to medical care for alleged medical issues he did not report.” Def.’s Br. at 10, Dkt.
66-1; Def.’s Br. at 12, Dkt. 67-1. However, as discussed in detail above, material factual
disputes exist regarding whether Mr. Hanson reported medical issues to Defendants
Shubert and Gonzalez.
In September of 2014, it was clearly established that prison officials could not
intentionally deny or delay prisoners’ access to medical care. Clement v. Gomez, 298
F.3d 898, 906 (9th Cir. 2002). Given Mr. Hanson’s version of the events described above,
a reasonable juror could find that Defendants Shubert and Gonzalez was deliberately
indifferent in delaying or failing to provide Mr. Hanson with access to medical care.
Determining whether they are entitled to qualified immunity is entirely dependent on the
resolution of these disputed facts. Therefore, the Court denies qualified immunity to
Defendants Shubert and Gonzalez. See Lolli v. County of Orange, 351 F.3d 410, 421

3

Defendant Peterson does not raise qualified immunity as an affirmative defense in her
memorandum in support of her motion for summary judgment (Dkt. 68). Therefore, the Court will not
analyze whether she is entitled to qualified immunity.

MEMORANDUM DECISION AND ORDER - 18

(denying qualified immunity to defendant officers because of the relevant factual disputes
identified by plaintiff).
C.

Municipal Liability

In Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), the
Supreme Court held that a municipality can be sued as a “person” under § 1983 if the
“execution of a government's policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts the
injury . . . .” Id. at 694. However, a city or county may not be held vicariously liable for
the unconstitutional acts of its employees under the theory of respondeat superior. Id. at
691.
A plaintiff must satisfy four elements to establish municipal liability for a failure
to protect an individual's constitutional rights: (1) the plaintiff possessed a constitutional
right, of which he was deprived; (2) the municipality had a policy; (3) this municipal
policy amounts to deliberate indifference to the plaintiff's constitutional right; and (4) the
municipal policy is a moving force behind the constitutional violation. Oviatt v. Pearce,
954 F.2d 1470, 1474 (9th Cir. 1992). A municipality is not liable under § 1983 for acts of
negligence by one of its employees or for the occurrence of an unconstitutional act by the
non-policymaking employee. Davis v. City of Ellensburg, 869 F.2d 1230, 1234-35 (9th
Cir. 1989). Evidence of mistakes made by adequately trained employees or a single
unconstitutional action by a non-policymaking employee is not sufficient to show the
existence of a custom or policy that violates constitutional rights. Id.

MEMORANDUM DECISION AND ORDER - 19

A municipality or entity may also be sued under a failure-to-train theory, where
the failure to train employees amounts to “deliberate indifference to the rights of persons
with whom the [untrained employees] come into contact,” and the “municipal actor
disregarded a known or obvious consequence of his action.” Connick v. Thompson, 131
S. Ct. 1350, 1359 (2011). Ordinarily, to maintain a failure-to-train case, a plaintiff must
allege facts showing a “pattern of violations” that amounts to deliberate indifference. Id.
at 1366. Likewise, “a failure to supervise that is ‘sufficiently inadequate’ may amount to
‘deliberate indifference’” that supports a policy-based claim against a municipality.
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.2011).
(1)

Failure to Protect Plaintiff’s Constitutional Rights

Mr. Hanson has failed to raise a genuine issue of material fact as to whether Blaine
County or Gooding County had a policy or custom that was the moving force behind a
violation of Mr. Hanson’s constitutional rights.
Mr. Hanson’s municipal liability claim falters on the second element of the
municipal liability test because he has failed to present evidence of a relevant policy. Mr.
Hanson cites to no written policy by either Blaine or Gooding County. Neither has he
presented sufficient evidence to allow a reasonable juror to find that either county had an
unwritten policy or custom that resulted in the alleged violations. An unwritten policy or
custom must be so “persistent and widespread” that it constitutes a “permanent and well
settled city policy.” Monell, 436 U.S. at 691. “Liability for improper custom may not be
predicated on isolated or sporadic incidents; it must be founded upon practices of

MEMORANDUM DECISION AND ORDER - 20

sufficient duration, frequency, and consistency that the conduct has become a traditional
method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996)
(citations omitted). Mr. Hanson cites to no incidents of alleged deliberate indifference to
serious medical needs by Defendants beyond those experienced by himself, and thus fails
to show a “persistent and widespread” policy or custom.
Blaine County submitted both its contract with CHC and its Detention Center
Policies and Procedures. Agreement for Inmate Health Care Services, Dkt. 67-6
(“Agreement”); Blaine County Detention Center Policies and Procedures, 67-9. Neither
of these policies are unconstitutional on their face or could reasonably be found to have
caused or contributed to a deliberate indifference to the medical needs of Blaine County
detainees. Through the Agreement, Blaine County contracted with CHC to provide
medical care to its inmates. In his response brief, Mr. Hanson correctly states that
“[c]ontracting 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.” West v.
Atkins, 487 U.S. 42, 56 (U.S. 1988). However, nothing in the contracts suggest that
Blaine County impermissibly shifted its constitutional duty to CHC. Rather, the
Agreement states that “[p]roviding health care is a joint effort of the Detention Center
and the Medical staff . . . [b]oth entities will work together to provide adequate medical
care for the protection of the inmate while reducing the risk of liability.” Blaine County
Detention Center Policies and Procedures at 255, Dkt. 67-9.

MEMORANDUM DECISION AND ORDER - 21

Mr. Hanson also alleges that a policy existed because of a failure to investigate the
unconstitutional acts of lower-level employees. A municipality may be held liable for a
constitutional violation under the theory of ratification if an authorized policymaker
approves a subordinate's decision and the basis for it. Lytle v. Carl, 382 F.3d 978, 987
(9th Cir.2004). However, “[a] mere failure to overrule a subordinate's actions, without
more, is insufficient to support a § 1983 claim.” Id. The policymaker must have
knowledge of the constitutional violation and must make a “conscious, affirmative
choice” to ratify the conduct at issue. Id.; Haugen v. Brosseau, 351 F.3d 372, 393 (9th
Cir.2003) overruled on other grounds by Brousseau v. Haugen, 543 U.S. 194 (2004). Mr.
Hanson does not appear to allege that any of the Defendants besides Defendants Gough
and Ramsey were policymaking officials.
It is true Defendant Gough made a decision that Mr. Hanson’s tort claim was
frivolous and did not discipline any Gooding County employees, and that Defendant
Ramsey handed the claim over to ICRMP without initiating any investigation. Gough
Dep. 30:25-31:12, 41:14-18, Dkt. 71-8; Ramsey Dep. 18:1-5, Dkt. 71-9. However, Mr.
Hanson failed to present any evidence showing that Defendants Gough and Ramsey were
aware of a constitutional violation on the part of their employees. Defendant Gough made
his decision solely on the basis of his conversation with Defendant Shubert. Gough Dep.
23:24-24:1, 26:18-20, Dkt. 71-8. Defendant Ramsey, in response to the question “Did
you understand at the time that you received and reviewed [Mr. Hanson’s tort claim] that
Mr. Hanson claimed that he had had cataract surgery and required eye drops and other

MEMORANDUM DECISION AND ORDER - 22

medical attention and was not given that attention while he was detained at Blaine
County?”, answered “No, I never talked to Mr. Hanson at all.” Ramsey Dep. 19:18-24,
Dkt. 71-9. Moreover, persuasive authority indicates that a single inadequate investigation,
without more, is insufficient to establish Monell liability. See, e.g., Peschel v. City of
Missoula, 686 F.Supp.2d 1107, 1125-26 (D. Mont. 2009). Therefore, the evidence on
record is insufficient to allow a reasonable juror to conclude that either Defendant
Ramsey or Defendant Gough approved of the bases for their employees’ decisions. See
Lytle, 382 F.3d at 987.
Finally, Mr. Hanson contends that the counties are liable under Monell because
they allowed policy decisions to be made by lower-level officials that led to the
violations, citing a 2015 decision of this Court in support. See Savage v. City of Twin
Falls, 2015 WL 1635252, at *12 (D. Idaho Apr. 13, 2015) (“[A] city cannot ‘escape
liability for the consequences of established and ongoing departmental policy regarding
the use of force simply by permitting such basic policy decisions to be made by lower
level officials who are not ordinarily considered policymakers.’”) (citing Chew v. Gates,
27 F.3d 1432, 1445 (9th Cir. 1994)). As discussed above, lower level officials did make
decisions that a reasonable juror could find amounted to deliberate indifference.
However, Mr. Hanson has not shown that these decisions were so frequent as to
constitute a policy designed by lower level officials. Mr. Hanson cites to no incidents of
alleged deliberate indifference to serious medical needs by Defendants beyond the ones
he experienced himself. Thus, the alleged “policy decisions” made by lower-level

MEMORANDUM DECISION AND ORDER - 23

officials were more like instances of “a single unconstitutional action by a nonpolicymaking employee,” and thus insufficient to show the existence of a custom or
policy that violated Mr. Hanson’s constitutional rights. See Davis, 869 F.2d at 1234-35.
(2)

Failure to Train

Mr. Hanson’s failure to train theory fails for the same reason that his unwritten
policy or custom theory did: he has not shown a “pattern of violations” that amounts to
deliberate indifference. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).
2.

State Law Claims
In his complaint, Mr. Hanson alleges violations under the Idaho Tort Claims Act

(“ITCA”), Idaho Code Title 6, Chapter 9. Mr. Hanson also alleges that Defendants’
misconduct constituted gross negligence and/or willful, wanton, and reckless conduct
within the meaning of Idaho Code § 6-904C. On August 28, 2017, the Court granted
County Defendants’ motion to dismiss Mr. Hanson’s state law claims against all
defendants except Gooding County and Blaine County.4 (Dkt. 44.)
The ITCA, specifically Idaho Code § 6–903, “establishes that governmental
entities are subject to liability for their own negligent or wrongful acts, and those of their
employees who were acting within the course and scope of their employment.” Hoffer v.
City of Boise, 257 P.3d 1226, 1228 (Idaho 2011). However, the ITCA expressly exempts
certain causes of action. Specifically, it provides that so long as a governmental entity

4

Defendant Peterson did not file a motion to dismiss.

MEMORANDUM DECISION AND ORDER - 24

and its employees is “acting without malice or criminal intent,” they will not be liable for
claims arising out of “performance or the failure to exercise or perform a discretionary
function,” Idaho Code § 6-904(1), or arising out of the “providing or failing to provide
medical care to a prisoner.” Id. § 6-904B.
The Idaho Supreme Court has held that, for both of these provisions, the clause
beginning “acting without” applies only to “employees,” and not to “governmental
entity.” Bates v. 3B Det. Ctr., 2016 WL 1755404, at *2 (D. Idaho May 2, 2016)
(extending the interpretation of Hoffer, which held that “[t]he plain language of the first
clause of [§ 6-904] exempts governmental entities from liability for the torts it lists,” to §
6-904B). In other words, “no matter how the employees acted,” Idaho governmental
entities cannot be liable for any claim arising under either of these provisions. Id. In his
complaint, Mr. Hanson did not specify into which ITCA category, if any, the challenged
actions fell. Defendants characterize them as falling under the “discretionary functions”
(§ 6-904(1)) and “medical care” (§ 6-904B(5)) provisions, and Mr. Hanson does not
dispute this characterization in his response brief. Thus, because Blaine and Gooding
County, as governmental entities, are immune from claims brought for acts arising under
§ 6-904(1) and § 6-904B(5), the Court will grant summary judgment as to Mr. Hanson’s
state law claims against Blaine and Gooding County.
The Court will also grant summary judgment to Defendant Peterson on Mr.
Hanson’s state law claims. Mr. Hanson states in his complaint that his state law claims
are brought pursuant to Idaho Code Title 6, Chapter 9. However, this chapter applies only

MEMORANDUM DECISION AND ORDER - 25

to governmental entities and their employees. See Idaho Code § 6-903(1) (“Except as
otherwise provided in this act, every governmental entity is subject to liability for money
damages arising out of its negligent or otherwise wrongful acts or omissions and those of
its employees acting within the course and scope of their employment or duties . . . .”)
(emphasis added). Additionally, this chapter’s definition of employees specifically
excludes contractors like Defendant Peterson:
“Employee” means an officer, board member, commissioner, executive,
employee, or servant of a governmental entity, including elected or
appointed officials, and persons acting on behalf of the governmental entity
in any official capacity, temporarily or permanently in the service of the
governmental entity, whether with or without compensation, but the term
employee shall not mean a person or other legal entity while acting in the
capacity of an independent contractor under contract to the governmental
entity to which this act applies in the event of a claim.
Idaho Code § 6-902 (emphasis added).
Defendant Peterson was a licensed nurse employed CHC, which Blaine County
contracted with to private medical care to inmates at Blaine County Jail. Carey Aff. Ex. A
15:24-16:5, 26:4-27:20, Dkt. 68-5. Therefore, she was a “person . . . acting in the
capacity of an independent contractor under contract” to Blaine County, and not an
“employee” within the meaning of the ITCA. For this reason, Mr. Hanson’s claims

MEMORANDUM DECISION AND ORDER - 26

brought under the ITCA are inapplicable to her, and the Court will grant summary
judgment as to Mr. Hanson’s state law claims against her.5
3. Motions to Strike
The Court has before it Plaintiff’s Motion to Strike (Dkt. 73) and County
Defendants’ Motion to Strike (Dkt. 79)6.
A. Plaintiff’s Motion to Strike
Mr. Hanson moved to strike the following declarations submitted by the County
Defendants: Declaration of Andy Hoffman (Dkt. 66-3); Declaration of Todd A.
Lefkowitz (Dkt. 66-4); Declaration of Jay Davis (Dkt. 67-3); and Declaration of Todd A.
Lefkowitz (Dkt. 67-11). In each of these declarations, the declarant’s signature was
represented in the form of a typewritten “/S/” above his type-written name. Mr. Hanson
claims that this kind of electronic signature is acceptable only for “registered
participants” in the CM/ECF system, according to Rule 13 of this Court’s Electronic Case
Filing (ECF) Procedures. Because the County Defendants offered no proof that the

5

Additionally, to the extent that Mr. Hanson argues Defendant Peterson engaged in medical
malpractice, he has failed to meet his burden of proof. Under Idaho law, a plaintiff in a medical
malpractice case must prove by expert testimony that the defendant failed to meet the applicable standard
of care in the local community. See Idaho Code § 6-1012. In regard to the applicable standard of care, the
report of Mr. Hanson’s expert witness, Dr. Fitzhugh, stated only that “any reasonable person should have
allowed [Mr. Hanson] to be examined by an ophthalmologist.” Fitzhugh Statement at 2, Dkt. 72-2. This
general statement is insufficient to meet the requirements of Idaho Code § 6-1012. Therefore, Mr. Hanson
has failed to meet his burden of proof in his medical malpractice claim against Defendant Peterson.
6
Gooding County Defendants joined Blaine County Defendants in their Motion to Strike. Def’s
Br. at 1-2, Dkt. 78.

MEMORANDUM DECISION AND ORDER - 27

declarants were registered participants, Mr. Hanson argues, the declarations are
inadmissible.
Rule 13 provides:
A Registered Participant filing a Verified Pleading electronically shall insure
the electronic version conforms to the original, signed pleading/document.
Each signature on the original, signed pleading/document shall be indicated
on the electronically filed Verified Pleading with the typed name on the
signature line of the person purported to have signed the pleading/document.
The electronic filing of a Verified Pleading constitutes a representation by
the Registered Participant that he or she has the original, signed document in
his or her possession at the time of filing.
United States District and Bankruptcy Courts for the District of Idaho Electronic Case
Filing Procedures, ¶ 13 (amended March 23, 2018),
https://www.id.uscourts.gov/content_fetcher/?Ref_ID=828&ID=1972.
Here, Mr. Hanson does not dispute that County Defendants’ attorney Blake Hall
was a registered participant or that the declarations are verified pleadings. Mr. Hall filed
each of the challenged declarations electronically, with a typed name of the declarant on
the signature line in each declaration. Therefore, the challenged declarations comply with
Rule 13, and the Court will deny Mr. Hanson’s motion to strike.
B. County Defendants’ Motion to Strike
The County Defendants moved to strike the Supplemental Declaration of William
Fitzhugh (Dkt. 75-5). Because the Court did not rely on the evidence asserted in this
declaration, it will deny the motion as moot.
ORDER
IT IS ORDERED:
MEMORANDUM DECISION AND ORDER - 28

1.

The Blaine County Defendants’ Motion for Summary Judgment (Dkt. 67)
is GRANTED in part and DENIED in part as explained above.

2.

The Gooding County Defendants’ Motion for Summary Judgment (Dkt. 66)
is GRANTED in part and DENIED in part as explained above.

3.

Defendant Peterson’s Motion for Summary Judgment (Dkt. 68) is
GRANTED in part and DENIED in part as explained above.

4.

Defendants’ Motion to Strike (Dkt. 79) is DENIED.

5.

Plaintiff’s Motion to Strike (Dkt. 73) is DENIED.

DATED: July 9, 2018
_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 29