Frank v. Cascade Healthcare Community, Inc. et al

Filing 233

ORDER: Plaintiff's Motion for Summary Judgment 217 is denied; Namanny and Macdonnell's cross-Motion for Summary Judgment 230 is granted. This case is dismissed. See formal order. Signed on 2/23/2014 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MINNY FRANK,

Case No.

6:11-cv-06402-AA
OPINION AND ORDER

Plaintiff,
v.
CASCADE HEALTHCARE COMMUNITY,
INC. dba ST. CHARLES MEDICAL
CENTER; EDWARD PALMER, MD;
REBECCA TIMMS; SCOTT NAMANNY;
THE CITY OF BEND; BEND POLICE
DEPARTMENT; and CENTRAL OREGON
EMERGENCY PHYSICIANS, LLC;
Defendants.
Minny Frank
61535 S. Hwy 97, #236
Bend, Oregon 97701
Pro se plaintiff
Robert E. Franz, Jr.
Law Office of Robert E. Franz, Jr.
P.O. Box 62
Springfield, Oregon 97477
Attorney for defendants Scott Namanny and Ian Macdonnell
AIKEN, Chief Judge:
Page 1 - OPINION AND ORDER

Plaintiff Minny Frank moves for summary judgment, pursuant to
Fed.

R.

Ci v.

R.

56 (a) ,

on her claims against defendants Scott

Namanny and Ian Macdonnell.

Namanny and Macdonnell filed a cross-

motion for summary judgment.

For the reasons set forth below,

plaintiff's motion is denied and defendants'

motion is granted.

This case is dismissed.
BACKGROUND

The history of this matter is well known to all parties.

It

will therefore only be repeated to the extent necessary to provide
context for the present motions.
On January 13,

2010,

after mixing alcohol and prescription

medications, plaintiff became extremely intoxicated and repeatedly
threatened her life in the presence of her husband.

Plaintiff's

husband called 911; Namanny and Macdonnell, Bend police officers,
were

dispatched to

plaintiff's

residence.

When

they

arrived,

plaintiff was restrained by her husband in a room with two guns,
one of which was loaded.

Plaintiff was uncooperative with the

police and, as a result, they hand-cuffed and Mirandized her.
Thereafter,

the

police

admitted that she held a
herself.

interviewed

plaintiff,

where

she

gun to her stomach intending to harm

Namanny explained to plaintiff that it would be in her

best interest to speak with a mental health specialist.

Plaintiff

agreed to go to the hospital so Namanny and Macdonnell transported
her to the

emergency department

Page 2 - OPINION AND ORDER

("ED")

of St.

Charles Medical

Center ("SCMCn), a private, non-profit hospital, pursuant to Or.
Rev. Stat.

§

426.228.

Upon admittance to the ED, plaintiff was contacted by Rebecca
Timms,

a

licensed

clinical

social

Plaintiff

worker.

became

combative, yelling and using profanity, because her handcuffs had
not yet been removed.
behavior

continued

Eventually,

Plaintiff's uncooperative and aggressive

despite

SCMC

employees'

calming

efforts.

she was subdued by Charge Nurse Nichole Ryan,

which plaintiff's

handcuffs

were

removed.

She was

after

examined by

Edward Palmer, M.D., an ED physician, and interviewed by Timms.
During her

interview,

plaintiff

reported that

she

held

a

loaded gun to her head earlier that evening and wanted to kill
herself.
vodka

Plaintiff also reported that she drank four glasses of

and often harms herself via an overdose of prescription

medication.
admitting

In conferral with Timms and Magnus Lakovics, M.D., the
physician,

Palmer

determined

that

plaintiff

was

a

potential harm to herself and/or others and initiated an emergency
psychiatric hold in SCMC's psychiatric emergency services ("PESn)
unit.

Plaintiff was

informed

that

she

was

going

to

be

held

overnight in the PES unit and needed to submit to a skin-check and
change into scrubs pursuant to hospital policy. 1

1

Specifically, SCMC's policy requires all patients "to be
placed in hospital clothes in [the ED]n and then searched "for
medications[,] sharp objects,n and any signs of injury prior to
admission to the PES unit.
Frank v. Cascade Healthcare Cmty.,
Inc., 2013 WL 867387, *3-4 (D.Or. Mar. 6, 2013) (citations and
Page 3 - OPINION AND ORDER

Upon receiving this information, plaintiff again began yelling
and became combative;

she demanded to speak with the on-call ED

doctor who evaluated her and refused to

change

voluntarily admit herself to the PES unit.

into

scrubs

or

Palmer returned and

informed plaintiff that it was his and his staffs' opinion that she
needed further treatment.

Plaintiff then erupted at Palmer and

began personally threatening him, at which point Palmer ordered the
administration of medication to plaintiff in order to effectuate
her transition into the PES unit.
Plaintiff continued to refuse to change into hospital scrubs,
even after being informed of SCMC's policy.

Plaintiff was warned

that she would be forcibly held down and changed into scrubs if she
failed to comply; plaintiff still refused cooperate and screamed to
see

a

patient

policies.

advocate

and

a

written

copy

of

the

hospital's

Plaintiff was then physically restrained by Namanny,

Macdonnell, and SCMC staff while Penny Lancaster, a female nursing
assistant, performed a skin-check and replaced plaintiff's existing
clothes with hospital scrubs.

Throughout this process, plaintiff

continued to yell, kick, and threaten those around her.
After plaintiff was changed into scrubs, she was transported

internal quotations omitted).
The primary purpose of this policy
is to "ensure the safety of patients, physicians, facility staff,
and visitors from dangerous articles, unauthorized medications,
and other i terns which could cause harm." Id. ( citation and
internal quotations omitted).
The use of force is also
authorized where it is necessary for security purposes.
Id.
Page 4 - OPINION AND ORDER

to

the

PES

unit

medications.

and

administered

Plaintiff

remained

in

anti-anxiety
the

PES

and

unit

sedative
until

the

following morning, January 14, 2010, when she was discharged into
her husband's care after a psychiatric evaluation revealed that she
was no longer a threat to herself or others.
On
Court.

December

2011,

On April 16,

complaint;
amended

9,

on May

2 012,
On

plaintiff's motions.
amended complaint.

2012,

16,

complaint.

plaintiff filed

negligence

infliction

of

complaint

in this

plaintiff moved to file an amended
plaintiff moved

June

26,

2012,

to

this

file

a

Court

second
granted

On July 12, 2012, plaintiff filed a second
On September 21, 2012, plaintiff was granted

leave to file her third amended complaint
several

a

and

emotional

negligent,
distress

( "TAC") , alleging:

reckless,
claims

and

("NIED,"

( 1)

intentional
"RIED,"

and

"IIED," respectively) under Oregon law; and (2) deprivations of her
Fourth and Fourteenth Amendment rights in violation of 42 U.S.C.

§

1983.
On March 6, 2013, this Court granted summary judgment in favor
of

Palmer,

Timms,

Ryan,

Lancaster,

Central

Oregon

Emergency

Physicians, LLC, the City of Bend, SCMC, Patricia Violet, Christine
Huffman,

Randal

Mcbride,

Jonathan

Beutler,

and

Justin

Nelson.

These parties were dismissed as defendants from this action and the
only

remaining

claims

were

those

asserted

against

Namanny

and

Macdonnell for negligence, NIED, RIED, NIED, and violations of the

Page 5 - OPINION AND ORDER

Fourth and Fourteenth Amendments.

The Court then denied several

motions for reconsideration filed by plaintiff.
2013,

plaintiff moved for

Macdonnell.

On December 3,

summary judgment against Namanny and

On December 27, 2013, defendants filed a cross-motion

for summary judgment.
STANDARD

Summary judgment is appropriate if the pleadings, depositions,
affidavits, answers to interrogatories, and admissions on file, if
any, show "that there is no genuine dispute as to any material fact
and the [moving party] is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
materiality of a

fact.

Substantive law on an issue determines the
T . W.

E1 e c .

S e rv s . ,

Inc .

v.

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

Pa c .

E1 e c .

Whether the

evidence is such that a reasonable jury could return a verdict for
the

nonmoving

party determines

the

authenticity of

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

a

dispute.

(1986).

The moving party has the burden of establishing the absence of
a genuine issue of material fact.
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett,

477

If the moving party shows the absence of a

genuine issue of material fact, the nonmoving party must go beyond
the pleadings and identify facts which show a genuine issue for
trial.

Id. at 324.

Special rules of construction apply when evaluating a summary
judgment motion:

(1) all reasonable doubts as to the existence of

Page 6 - OPINION AND ORDER

genuine issues of material fact
moving

party;

and

(2)

all

should be resolved against the

inferences

to

be

drawn

from

the

underlying facts must be viewed in the light most favorable to the
nonmoving party.

T.W. Elec., 809 F.2d at 630.
DISCUSSION

This dispute centers on whether defendants'

use of physical

restraint violated plaintiff's constitutional rights.

See TAC

~~

67, 74 (alleging that Namanny and Macdonnell deprived plaintiff of
her Fourth and Fourteenth Amendment rights "when they participated
in physically restraining" her); see also Pl.'s Mem. in Supp. of
Mot. Summ. J. 4-9.

Namanny and Macdonnell argue that plaintiff's

claims are time-barred under the relevant statutes of limitations.
Alternatively, defendants contend they are entitled to qualified
immunity.
I.

Preliminary Issues
The Court must first ascertain whether plaintiff's claims are

timely.

A.

Moreover, two factual issues merit clarification.

Statute of Limitations

Namanny and Macdonnell contend that plaintiff's claims are
time-barred because "[t]he incident in this lawsuit occurred on
January

13,

2010,"

and

the

amended

complaints

naming

them

as

defendants were filed after the two-year statute of limitations
expired on January 13, 2012.

Page 7 - OPINION AND ORDER

Defs.' Mem. in Supp. of Cross-Mot.

Surmn. J.

6-7.

Defendants'

assertion

ignores

the

fact

that

the

Court

previously addressed this precise issue, holding that "plaintiff's
claims against defendants relate back to the original complaint,"
which was filed on December 9,
period,

and therefore

Healthcare Cmty., Inc.

were

2011, well within the limitations

not

time-barred.

Frank v.

Cascade

("Frank II"), 2012 WL 4323962, *2-3 (D.Or.

Sept. 13, 2012); see also Order on Mot. to File Second Am. Compl.
2 (June 2 6, 2012)

(" [t] here is no dispute that plaintiff's request

to add the Doe police defendants as well as Tirmns relates back to
the incident giving rise to plaintiff's claim as set out in her
original complaint").
rulings.

The Court declines to depart from its prior

See Herb Reed Enter., LLC v. Fla. Entm't Mgmt., Inc., 736

F.3d 1239, 1245 (9th Cir. 2013)
B.

(citation omitted).

Clarification of the Record

Plaintiff's
defendants'

42

U.S.C.

§

1983

claims

are

allegedly unlawful search and seizure.

premised

on

These claims

are also predicated on the fact that defendants allegedly knew that
plaintiff had previously been sexually abused, such that they were
on notice that she would suffer negative psychological consequences
as a result of their actions.
Beyond plaintiff's bare allegations, there is no evidence in
the record that either Namanny or Macdonnell participated in any
search.

Although there is no dispute that plaintiff was restrained

Page 8 - OPINION AND ORDER

by defendants, the only individual that actually searched plaintiff
or participated in her disrobing and redressing was Lancaster, a
female nursing assistant employed by SCMC.
("Ryan Decl."), at i

See Franz Decl. Ex. 104

8; Franz Decl. Ex. 108

("Ryan Dep."), at 54,

58-60.
Further, there is no evidence in the record that defendants
knew or should have know of plaintiff's past sexual abuse.
fact, the evidence plaintiff relies on

In

- i.e. defendants' police

report - reflects her statement that her husband was "verbally and
physically abusive" on the night in question. is to the contrary.
Franz Decl. Ex. 107
and

Macdonnell

("Police Report"), at 2-3.

explicitly

deny

that

they

Further, Namanny

were

present

during

plaintiff's clinical interview with Timms or able to overhear that
conversation.
again

was

Id.

calm

at 3

and

("[a] fter about 5 minutes or so,

she

spoke

with

mental

Macdonnell and I waited outside and .

health.

Frank

Officer

I

could not hear the

Ryan's deposition statements,

on which plaintiff

conversation").
Moreover,

also relies, indicate that police officers are required, pursuant
to SCMC policy, to remain in the ED with any patient they brought
in for psychiatric services, "especially for a patient who is out
of control, yelling, screaming, carrying on."
also id.

at 28

Ryan Dep. 19-20; see

(Ryan testifying that she was not present during

Timm's assessment of plaintiff); Frank I, 2013 WL 867387 at *3-4

Page 9 - OPINION AND ORDER

(outlining SCMC's policy regarding the presence of police in the
ED).

In sum,

the Court finds

that defendants had no basis to

regard plaintiff as a victim of past sexual trauma.
Thus,

plaintiff's

allegations

concerning

a

"cross-gender

search" or defendants' "subjective knowledge" of her past sexual
abuse are without support and therefore insufficient to create a
genuine issue of material fact.

See Celotex,

4 7 7 U.S.

at

322

(summary judgment should be entered against "a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden on proof at trial");
Med.

Inc.,

343

F.3d

1107,

see also Hernandez v.

1116

allegations, unsupported by facts,
motion for summary judgment")

II.

(9th

Cir.

Spacelabs

( "concl usory

2003)

are insufficient to survive a

(citation omitted).

Federal Claims
To prevail on a claim under 42 U.S.C.

demonstrate that:

§

1983, a plaintiff must

(1) the conduct complained of deprived her of an

existing federal constitutional or statutory right;

and

(2)

the

conduct was committed by a state actor or a person acting under
color of state law.
L.W. v. Grubbs,

See West v. Atkins,

974 F.2d 119, 120

508 U.S. 951 (1993).

487 U.S.

42,

48

(1988);

(9th Cir. 1992), cert. denied,

It is undisputed that Namanny and Macdonnell

qualify as state actors for the purposes of 42

Page 10 - OPINION AND ORDER

U.S. C.

§

198 3.

Thus,

the sole issue is whether defendants violated plaintiff's

federal rights or are otherwise entitled to qualified immunity.
Fourth Amendment Claim2

A.
A

federally

unreasonable

recognized

seizures

exists

liberty
under

interest
the

to

.

guarantee against all

against unreasonable . . . seizures").
"seized" within the meaning of the
officer,

by

means

of

physical

.

( 2 0 07)

from
See

(Fourth Amendment

seizures,

but only

Generally, an individual is
Fourth Amendment

force

or

show

terminates or restrains his freedom of movement .
intentionally applied."

free

Fourth Amendment.

United States v. Sharpe, 470 U.S. 675, 682 (1985)
does "not

be

of

"when the
authority,

through means

Brendlin v. California, 551 U.S. 249, 254

(emphasis, citations, and internal quotations omitted) .

A distinction has been made, however, between cases in which
"officers acted in a law-enforcement capacity [as opposed to] in an

2

Plaintiff's TAC alleges an unreasonable seizure claim under
the Fourth Amendment, whereas her summary judgment briefing
focuses exclusively on defendants' allegedly excessive use of
force.
Compare TAC pg. 27, with Pl.'s Mem. in Supp. of Mot.
Summ. J. 5-7.
Substantively, plaintiff's arguments indicate that
her Fourth Amendment claim is one for unreasonable seizure, as
her TAC and briefs assert that defendants' use of restraint was
per se unreasonable.
See, e.g., TAC ~~ 15, 67-70, 74; Pl.'s Mem.
in Supp. of Mot. Summ. J. 5-9.
Regardless of the legal theory of
liability, plaintiff's Fourth Amendment claim fails because no
seizure occurred within the meaning of the Fourth Amendment,
which is a "threshold" issue for both unreasonable seizure and
excessive force claims.
See Lum v. City of Grants Pass, 2011 WL
915385, *13-14 (D.Or. Jan. 6), adopted by 2011 WL 867691 (D.Or.
Mar. 10, 2011), aff' d, 484 Fed.Appx. 89 (9th Cir. 2012) (citing
Kyllo v. United States, 533 U.S. 27, 31 (2001)).
Page 11 - OPINION AND ORDER

emergency-medical-response capacity when engaging in the conduct
that the plaintiff claimed violated the Fourth Amendment."
Cnty. of El Dorado, 2012 WL 1414115, *8

(E.D.Cal. Apr.

(citation and internal quotation omitted).

Haas v.

23, 2012)

"[A] government actor

who restrains an individual while trying to render medical aid does
not seize the person for purposes of Fourth Amendment analysis."
Id.

(citations and internal quotations omitted); see also Peete v.

Metro. Gov't of Nashville & Davidson Cnty., 486 F.3d 217, 219 (6th
Cir. 2007), cert. denied, 553 U.S. 1032 (2008)
inapplicable when force
emergency

rather

than

is
to

used to
enforce

render
the

law,

(Fourth Amendment is
solicited aid in an
punish,

deter,

or

incarcerate) .
Further,

where

restraint

is

employed in a

law-enforcement

capacity but for mental health or "community caretaking" purposes,
the Fourth Amendment is not violated provided that probable cause
exists, which,

in this context, "requires only a

'probability or

substantial chance' of dangerous behavior, not an actual showing of
such behavior."
2008)

Ziegler v. Aukerman, 512 F.3d 777, 783 (6th Cir.

(evaluating an officer's authority to take a mentally ill

individual into custody in order to obtain psychological treatment
for that individual)

(citing Illinois v. Gates, 462 U.S. 213, 245

n.l3 (1983) ); United States v. King, 990 F.2d 1552, 1560 (lOth Cir.
1993)
acting

(" [w] hether the
in

his

or

her

seizure of a

person by a

noninvestigatory

Page 12 - OPINION AND ORDER

capacity

police officer
is

reasonable

depends on whether it is based on specific articulable facts and
requires a reviewing court to balance the governmental interest in
the police officer's exercise of his or her 'community caretaking
function'

and

the

individual's

interest

arbitrary government interference")

in

being

free

from

( citations omitted) .

Here, it is undisputed that plaintiff consented to accompany
See Police

defendants to SCMC for a mental health evaluation.
Report 3.

Additionally, plaintiff was not in police custody at the

time of the restraint.
detain

plaintiff

Rather, medical staff from SCMC elected to

overnight

in

the

PES

unit

based

on

their

determination that she was a threat to herself or others and in
need of immediate medical

See

treatment.

Franz

Decl.

Ex.

101

("Palmer Decl. "), at <][ 4; see also id. at Ex. 105 ("Timms Decl. "),
at<][<][ 6-7.

So once Palmer initiated the emergency psychiatric hold

of plaintiff, she was no longer in police custody pursuant to Or.
Rev.

Stat. § 426.228,

Rev. Stat.§ 426.232.

and instead was in SCMC custody under Or.
See Or. Rev. Stat. § 426.228(4)

("[w]hen a

peace officer . . . delivers a person to a hospital or nonhospital
facility,

a physician licensed by the Oregon Medical Board shall

examine the person .
need

of

emergency

. If the physician finds the person to be in
care

or

treatment

physician shall proceed under
also Or.

Rev.

Stat.

[Or.

§ 426.232 (1) (a)

Rev.

for

mental

Stat.

the

4 2 6. 2 32") ;

see

(" [w]hen a physician .

believes a person who is brought to a hospital

Page 13 - OPINION AND ORDER

§]

illness,

. is dangerous

to self or to any other person and is in need of emergency care or
. detain the

treatment for mental illness, the physician may
person and cause the person to be admitted")
It

is

also

undisputed

that,

to

the

extent

Namanny

and

Macdonnell remained at the hospital and participated in plaintiff's
restraint, such actions were taken pursuant to SCMC policy and at
the direction of SCMC staff.
~~

See Ryan Dep. 19-20, 48; Ryan Decl.

5-8; Police Report 2-4; TAC

23.

~

This policy is in place to

ensure that patients do not have weapons or a clothing item "that
could

be

used

to

harm

themselves

or

others,"

and

to

allow

"providers to check the patient's skin to look for any signs of
injury."

Franz Decl. Ex. 103 ("Powers Decl."),
also

Defendants

provided

3-8.

at~~

uncontradicted

evidence

that

plaintiff posed an immediate threat to herself and others on the
night in question.
Decl.;

Powers

See generally Palmer Aff.; Timms Decl.; Ryan

Decl.;

see

also

Police

Report

2,

6

(plaintiff

reported that she is "depressed and suicidal," and that she "had
pointed the gun to her stomach with the intent of harming herself";
plaintiff's husband, who witnessed plaintiff's actions, stated that
"Minny needed to be committed and was convinced that is she was
released
family") .

tonight

she

would

hurt

herself

or

the

rest

of

the

In fact, that was precisely why she was brought to SCMC

and ultimately admitted to the PES unit.
Moreover,

Namanny

and

Macdonnell

furnished

unrepudiated

evidence indicating that the use of restraint was necessary to
Page 14 - OPINION AND ORDER

effectuate SCMC's policy and to ensure plaintiff's safety and wellbeing,

as well as the safety and well-being of SCMC staff.

generally

Palmer

Aff.;

Timms

Decl.;

Ryan

Decl.;

Powers

See
Decl.

Plaintiff could not be admitted to the PES unit until she underwent
a skin-check and changed into hospital scrubs.
plaintiff of this policy,
staff,

SCMC staff informed

which existed to protect patients and

and gave plaintiff several opportunities to change

hospital

scrubs

or

submit

to

a

skin-check of

her

own

into

accord;

plaintiff was also warned that the failure to comply with SCMC's
policy would result in the use of force.
Powers Decl.

':[[':[[ 3-8.

See Ryan Decl. ':[[':[[ 4-8;

Plaintiff responded to these warnings by

acting in a verbally threatening manner, throwing the scrubs, and
taunting hospital staff by "crouching forward and saying go ahead
and change me."

Ryan Dep. 44, 48; Ryan Decl. ':[[':[[ 6-7. 3

Where, as here, a police officer acts pursuant to a private
hospital's policy in order to secure emergency services for a outof-control and combative patient, his conduct is that of a medical
responder.

Any force applied under these circumstances is not a

3

Plaintiff contends that "no reasonable jury [could]
conclude that [she] pose[d] a threat to anyone's safety" because
Ryan was initially able to calm her upon her admittance to the ED
and "[t]he record shows that Plaintiff was cooperative enough to
allow for a physical [and psychological] exam." Pl.'s Mem. in
Supp. of Mot~ Summ. J. 7.
Plaintiff's argument, however, wholly
ignores the timing of events on the night in question, as well as
several other salient facts.
In other words, plaintiff's initial
compliance with treatment has no bearing on whether she was
acting in a verbally and/or physically threatening manner at the
time she was restrained.
Page 15 - OPINION AND ORDER

"seizure" within the meaning of the Fourth Amendment.
Lum, 2011 WL 915385 at *13-15

See, e.g.,

(when confronted with a physically

combative and non-responsive person, no seizure occurred under the
Fourth Amendment where officer was one of several people attempting
to assist the paramedics, who needed to control the individual's
thrashing in order to evaluate his medical condition and to prevent
patient from injuring himself) .
Even assuming defendants'
taken in a

actions were

law-enforcement capacity,

similar to

conduct

summary judgment is still

appropriate because the use of restraint was reasonable based on
the totality of the circumstances.
existed

and

plaintiff's

own

Because a medical emergency

actions

interfered with

necessary

treatments, force was applied to effectuate plaintiff's skin-check,
change into scrubs, and admittance to the PES unit.

Specifically,

defendants restrained plaintiff's arms and/or legs for between ten
and fifteen minutes.

See Ryan Dep. 35, 49, 63.

This use of force

was neither physically painful nor did it cause physical injury.
See also Ryan Dep. 34-35 ("I just had just enough restraint on your
head

to

keep

you

from

sitting up

throwing your head around
harm");

Frank I,

.

or

trying

to

bite

staff

but I was not causing you any

2013 WL 867387 at *13-14

(plaintiff failed to

introduce any evidence of physical injury) . 4
4

In her most recent request for reconsideration of this
Court's previous summary judgment decision, plaintiff furnishes
evidence of a jaw injury allegedly "attribut[able] to Nichole
Ryan's holding of her head." Pl.'s Mot. to File Fourth Am.
Page 16 - OPINION AND ORDER

or

Additionally, defendants, in conjunction with SCMC staff, used
reasonable means to ensure that plaintiff's privacy was protected.
See Ryan Dep.

51,

54,

58

(plaintiff was brought into a private

room, with the door closed, while "blankets or towels [were used]
to help provide privacy" while she was being changed); Ryan Decl.
i 8 ("[t]he males in the room made every effort to avert their eyes

from Ms.

Frank [while she was being changed into hospital scrubs

and they] did not physically remove her clothing or redress her");
Police Report 3-4

("all the men present made every effort to look

away while Frank was in a state of undress").
In sum, the governmental interests at stake - i.e. ensuring
patient and staff security, as well as assisting in the procurement
of emergency medical services for an out-of-control and intoxicated
patient- were strong.

While the invasion into plaintiff's privacy

was significant and serious,
government interests at stake.

it is nonetheless outweighed by the
See Serna v. Goodno, 567 F.3d 944,

953-56 (8th Cir.), cert. denied, 558 U.S. 972 (2009)

(requiring a

civilly-committed patient to undergo a visual body-cavity search
for contraband did not violate the Fourth Amendment because the

Compl. 9 & Ex. D.
This evidence, a MRI report from April 19,
2012, merely reflects that plaintiff was diagnosed with a
temporomandibular joint disorder. As such, it is insufficient to
establish an injury arising out of defendants' conduct.
Even
assuming that such a causal connection existed, there remains no
indication that Namanny or Macdonnell physically harmed
plaintiff.
See Pl.'s Mot. to File Fourth Am. Compl. 9 (expressly
naming Ryan, who is no longer a defendant in this action, as the
perpetrator) .
Page 17 -OPINION AND ORDER

government's interest in "security at institutions dedicated to the
containment and treatment of mental patients[,]
to

safety

as

well

as

treatment,"

outweighed

restraint was

employed to prevent the probability of dangerous

plaintiff's
Therefore,

privacy

used

remained

Namanny' s

privacy) .

patient's

interest

and defendants

personal

the

"significant"

behavior,

in

[which] is crucial

reasonable
intact

Essentially,

means

to

throughout

ensure

that

that

process.

and Macdonnell's use of restraint

did not

violate plaintiff's Fourth Amendment rights.
B.

Fourteenth Amendment Claim

A federally recognized liberty interest in the right to bodily
integrity exists under the Due Process Clause of the Fourteenth
Amendment. 5

See Albright v.

(citation omitted).

Oliver,

510

U.S.

266,

272

(1994)

In particular, the concept of substantive due

process precludes the government from depriving a person of liberty
in such a way that "shocks the conscience."
546 F.3d 1131, 1137 (9th Cir. 2008)

See Porter v. Osborn,

("[o]nly official conduct that

'shocks the conscience' is cognizable as a due process violation").
"Conduct

intended

to

injure

in

some

way

unjustifiable

by

any

government interest is the sort of official action most likely to
rise to the conscience-shocking level."
5

Cnty.

of Sacramento v.

Plaintiff also alleges in her TAC that defendants violated
the Fourteenth Amendment's Equal Protection Clause; however,
plaintiff failed to allege any facts, set forth any evidence, or
make any arguments in regard to this claim.
See generally Pl.'s
Mem. in Supp. of Mot. Summ. J.; see also TAC ~ 84. As such, the
Court declines to address it further.
Page 18 - OPINION AND ORDER

Lewis,

523

U.S.

833,

849

(1998).

Conversely,

"liability

for

negligently inflicted harm is categorically beneath the threshold
of constitutional due process."
As a result,
omissions.
Cir. 2011).

Id.

the government is not typically liable for its

Patel v.

Kent Sch.

Dist.,

648 F.3d 965,

971-72

There are, however, two exceptions to this rule:

(9th
(1)

when a special relationship exists between the plaintiff and the
state actor

("special relationship exception"); and

(2)

when the

state actor affirmatively places the plaintiff in danger by acting
with deliberate indifference to a known or obvious danger ("danger
creation exception") .

Id.

(citations omitted) .

Initially, plaintiff's claim is not cognizable under the Due
Process Clause of the Fourteenth Amendment to the extent it is
premised on rights already secured by the Fourth Amendment.

See

Pl.'s Mem. in Supp. of Mot. Summ. J. 9 (arguing that her Fourteenth
~~ghts

were violated because "Defendants Officers acted

recklesskly in that the police tactical takedown was unreasonable
ecessary"); see also TAC! 67

("[t]he individual Defendant

Police Officers participated in restraining Plaintiff
enforce

a

hospital

Amendment]") . 6

policy

Where

"a

6

[in

violation

particular

of

the

constitutional

to
Fourteenth
amendment

Plaintiff also contends, for the first time in her current
motion, that defendants' conduct placed her in a position of
danger by delaying her receipt of anti-anxiety medication.
See
Pl.'s Mem. in Supp. of Mot. Summ. J. 9 (" [h] ad the Defendant
Officers not interfered with [the administration of medications
by restraining her], Plaintiff would have been relieved of her
Page 19 - OPINION AND ORDER

provides an explicit textual source of constitutional protection
that amendment, not the more generalized notion of substantive due
process must be the guide for analyzing these claims."
Walker, 185 F.Supp.2d 1185, 1189 (D.Or. 2001)
U.S. at 281)

Pelster v.

(citing Albright, 510

(internal quotations and ellipses omitted).

Nevertheless,

accepting that defendants'

allegedly wrongful

conduct is separately actionable under the Fourteenth Amendment,
plaintiff's

claim

fails

for

two

reasons.

First,

and

most

importantly, defendants' use of force was reasonable and there is
nothing in the

record to

show that Namanny or Macdonnell were

deliberately indifferent to plaintiff's medical needs.

Plaintiff's

claim under the Fourteenth Amendment based on defendants' allegedly
unlawful seizure fails.
2013

WL

6774098,

Fourteenth

See, e.g., Newmaker v. City of Fortuna,

*10-13

Amendment

(N.D.Cal.

Due

Process

Dec.

23,

claim

2013)

dismissed

(plaintiff's
where

the

defendant's use of force was reasonable and not excessive).
Second,

neither

the

creation" exception applies.

"special

relationship"

nor

"danger

The former has only been recognized

where a plaintiff is in police custody.

See Youngerberg v. Romeo,

acute anxiety condition and would have been readily and
immediately cooperative in following the admissions instructions
of the hospital staff that evening").
This assertion, however,
is both without support in the record and impugned by plaintiff's
position in this Court's prior summary judgment proceedings.
See
TAC ~ 52-57; Frank, 2013 WL 867387 at *5-12.
Plaintiff cannot
obtain an advantage in these proceedings by taking positions that
contravene those previously asserted.
See Milton H. Greene
Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 993 (9th Cir.
2012).
Page 20 - OPINION AND ORDER

457

U.S.

307,

324

(1982)

(special

relationship

exists

between

involuntarily committed mental patient and the state); Estelle v.
Gamble,

429 U.S.

97,

104-5

(1976)

(special relationship exists

between incarcerated prisoner and the state); see also Nattell v.
Curry Cnty.,

2013 WL 5372539,

*5

(D.Or.

Sept.

23,

2013)

("even

state custody will not support a 'special relationship' claim where
a person is in custody voluntarily")
the

restraint,

however,

(citation omitted) .

plaintiff

voluntarily

Prior to

accompanied

defendants to SCMC and, during the restraint, plaintiff was not in
police custody.
The latter is relevant only when "an unusually serious risk of
harm" exists and the defendant had "actual knowledge of

(or,

at

least, willful blindness to) that elevated risk," but neglected "to
take obvious steps to address that known, serious risk."
rel.

Funez

v.

Guzman,

687

F.Supp.2d

1214,

(citation and internal quotations omitted).
plaintiff must

show the defendant

knows

1228

Funez ex

(D.Or.

2009)

"In other words, the
something

is

happen but ignores the risk and exposes someone to it."

going
Id.

to

This

test is not met here; to the extent that an unusually serious risk
of harm existed from the use of cross-gender restraint due
plaintiff's

past

sexual

abuse,

defendants

neither

had

actual

knowledge of, nor acted with willful blindness to, that risk.
Frank,

2 013 WL 8 67 38 7 at *2 0

to

See

("plaintiff has not set forth any

facts or evidence indicating that [Namanny or Macdonnell] knew or
should have known that their attendance would cause plaintiff harm,
Page 21 - OPINION AND ORDER

which is a requisite element")
defendants'

( citation omitted) .

Accordingly,

actions did not deprive plaintiff of her Fourteenth

Amendment rights.
C.

Qualified Immunity

Qualified immunity shields government officials from civil
liability

"insofar

established

as

statutory

their
or

conduct

constitutional

reasonable person would have known."
U.S.

800,

government

818

(1982)

actor

( 2)

not

violate

rights

Harlow v.

(citations

omitted).

entitled to

is

determines whether:
and

does

qualified

To

of

clearly
which

Fitzgerald,
ascertain

immunity,

the

a
457

if

a

court

(1) the alleged misconduct violated a right;

that right was clearly established at the time of the

alleged misconduct.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

In other words, if the government actor reasonably believed that
his or her conduct complies with the law, summary judgment based on
qualified immunity is appropriate.
Briggs, 475 U.S. 335, 341 (1986)

Id. at 244; see also Malley v.

(qualified immunity protects "all

but the plainly incompetent or those who knowingly violate the
law") .
Even if plaintiff could establish a violation of her Fourth or
Fourteenth
qualified
Macdonnell

Amendment
immunity
utilized

rights,

under

defendants

the

routine

undisputed

and minimal

would

be

facts.
restraint,

entitled
Namanny
of

to
and

limited

duration, pursuant to SCMC policy and at SCMC staff's direction.
They had no prior knowledge of plaintiff's past sexual abuse and
Page 22 - OPINION AND ORDER

Further,

did not cause her any physical pain or injury.
restraint

was

treatment.

medically

necessary

to

effectuate

such

plaintiff's

Based on this record, no reasonable officer would have

been on notice that the employed restraint was unlawful and/or
going to cause plaintiff long-term psychological impacts.
Moreover, where there is a
court is ordinarily

~lack

. . to grant qualified immunity"

~compel[led]

because any other outcome

of on-point precedent," the

~would

allow plaintiffs to convert the

rule of qualified immunity into a rule of virtually unqualified
liability

simply

rights."
Cir.

by

alleging

violation

Maxwell v. Cnty. of San Diego,

2012)

( citations

and

parties have not cited to,

internal

of

extremely

abstract

697 F.3d 941,

quotations

949

omitted) .

and the Court is not aware of,

(9th
The
any

authority delineating when a police officer can or should employ
restraint of a mentally ill and intoxicated individual after that
individual is in a private hospital's custody for emergency medical
See generally Pl.'s Mem.

services.
Defs.'

Mem.

in Supp.

of Cross-Mot.

in Supp.
Summ.

of Mot.

J.

Thus,

Summ.

J.;

defendants'

motion is granted as to plaintiff's federal claims and plaintiff's
motion is denied.
III. State Claims
While she alleges negligence,

NIED,

RIED,

and IIED claims

against Namanny and Macdonnell in the TAC, as defendants point out,
plaintiff's
claims.

summary

Compare TAC

judgment
c:![c:![

briefs

address

58-64, with Pl.'s Mem.

Page 23 - OPINION AND ORDER

only

her

federal

in Supp. of Mot.

Summ.

J.

2-12;

see

also

Defs.'

Resp.

to

Mot.

Summ.

J.

3.

Accordingly, the Court construes plaintiff's state law claims as
waived.

In any event, plaintiff's negligence claim fails because

she neglected to demonstrate the

existence of a

breached and/or resulted in harm.
5372539 at *8-9.

See ,

e .g. ,

duty that was

Nat t e 11,

2 0 13 WL

Plaintiff's state law claims also fail for the

same reasons articulated in this Court's previous summary judgment
See

decision.
requirements
granting

Frank,

of

in

Lancaster) .

WL

negligence,

summary

participated

2013

judgment

867387

NIED,

in

plaintiff's

RIED,

favor

of

is

*5-17
and

SCMC

restraint,

motion

Defendants'

at

(outlining

IIED

the

claims

and

staff members

who

including

therefore

Ryan

and

granted

and

plaintiff's motion is denied.

CONCLUSION

Plaintiff's motion for summary judgment (doc. 217) is DENIED.
Namanny and Macdonnell's cross-motion for summary judgment
(doc. 230) is GRANTED.

This case is DISMISSED.

IT IS SO ORDERED.
Dated this

~~day

of February 2014.

Ann Aiken
United States District Judge

Page 24 - OPINION AND ORDER