Pulphus v. Compass Health et al, No. 2:2021cv00930 - Document 44 (W.D. Wash. 2022)
Court Description: ORDER granting Plaintiff's 37 Motion to Amend. Plaintiff is directed to file his Second Amended Complaint within ten days of this Order. Signed by Hon. Brian A Tsuchida. (LH)
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Pulphus v. Compass Health et al Doc. 44 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 1 of 10 1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 FRED A PULPHUS, 7 8 9 10 ORDER GRANTING MOTION TO AMEND AND ADD PARTY v. COMPASS HEALTH, WHATCOM COUNTY, WHATCOM COUNTY SHERIFF'S OFFICE, WENDY JONES, 11 12 CASE NO. 2:21-cv-00930-TL-BAT Plaintiff, Defendants. Before the Court is the motion of Plaintiff Fred A. Pulphus to amend his complaint and 13 add a party. Dkt. 37. Defendants Wendy Jones, Whatcom County, Whatcom County Sheriff’s 14 Office (the “Jail Defendants”) do not oppose the motion. Dkt. 39. Defendant Compass Health 15 opposes the motion on the grounds of futility. Dkt. 40. Having carefully reviewed the parties’ 16 filings, declarations, and balance of the record, the Court finds that leave to amend should be 17 granted. 18 19 BACKGROUND On March 17, 2020, Plaintiff filed a charge with the Equal Employment Opportunity 20 Commission (“EEOC”). Dkt. 4, p. 25. A month later, Plaintiff made a complaint with his union, 21 SEIU. Id. On March 26, 2021, Plaintiff filed the original Complaint for discrimination against 22 Compass Health. Dkt. 4, pp. 9-17. On June 21, 2021, Plaintiff filed an Amended Complaint 23 against Compass Health, Whatcom County, Whatcom County Sheriff’s Office, and Wendy ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 1 Dockets.Justia.com Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 2 of 10 1 Jones. Dkt. 4, pp. 20-33. Plaintiff asserts six claims against Compass Health including hostile 2 work environment and retaliation based on his race in violation of Washington’s Law Against 3 Discrimination, chapter 49.60 RCW. Id. Plaintiff asserts Fourteenth Amendment Due Process, 4 Equal Protection, tortious interference, negligence and Washington Law Against Discrimination 5 claims against the Jail Defendants. Id. 6 Until January 2022, Plaintiff was employed by Compass Health at the Whatcom County 7 Jail (the “Jail”) on the Jail/Juvenile Behavioral Health Team (“JJBHT”) as a Mental Health 8 Professional. Dkt. 4, p. 22. Compass Health provides behavioral and mental health services to 9 adult and youth inmates at the Jail under a contract between Whatcom County and Compass 10 Health. Dkt. 21, p. 10. This contract governed the work Plaintiff performed at the Jail. In 11 performing his duties, Plaintiff was required to have access to the Jail, which was provided by 12 Jail Administrator Wendy Jones. According to LaJolla Peters, Human Resources Director for 13 Compass Health, Defendant Wendy Jones had the authority to rescind that access any time for 14 any reason related to the safety or security of the Jail and Jail staff. Dkt. 22, Declaration of 15 LaJolla Peters, ¶ 5. 16 Also, according to Ms. Peters, Plaintiff’s access to the Jail was rescinded in January 17 2020, after an employee reported to Defendant Jones that Plaintiff improperly went to the Jail, 18 read the file of a juvenile detainee, and later shared details of the file with his coworkers in the 19 Jail breakroom. Dkt. 22, Peters Decl. p. 2. Defendant Jones revoked Plaintiff’s Jail access based 20 on Plaintiff’s breach of the juvenile detainee’s rights to medical confidentiality and Compass 21 Health transferred him to a similar position with the same pay and benefits. Id. 22 23 According to Plaintiff, his access to the Jail was rescinded after he made numerous reports of racism and harassment, including “to the CEO of Compass” and on November 11, ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 2 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 3 of 10 1 2019, in an email and meeting with LaJolla Peters. Dkt. 4, p. 25. Plaintiff asserts the charge 2 upon which his Jail access was rescinded is false and was improperly investigated by Compass 3 Health. 4 Plaintiff states that it was not until January 2022, that he became aware for the first time 5 that someone other than Defendant Jones was responsible for banning Plaintiff from the Jail. 6 Dkt. 37, p. 4. In January 2022, Defendant Jones testified that David Reynolds is the administrator 7 of the juvenile detention facility. Dkt. 37-1, Second Declaration of Y. Junga Cha, ¶ 6, Ex. D, p. 8 12, 86. Plaintiff has since learned that less than two hours after Defendant Jones sent the January 9 23 access revocation email, Laura Savage (Plaintiff’s supervisor) forwarded the email to David 10 Reynolds. David Reynolds then sent out an email stating “please make sure staff knows he is not 11 to enter detention in any capacity. I will inform 5th floor staff as well.” Dkt. 37-1, Second Cha 12 Decl., ¶ 17, Ex. 4. On April 12, 2020, during his deposition, David Reynolds testified that he had 13 the authority to revoke Plaintiff’s access to the Jail and that he did so based on an email thread 14 and performed no other investigation. Id., Cha Decl., ¶ 18. 15 In her deposition, Defendant Jones testified that Plaintiff’s access to the jail could be 16 reinstated after Compass Health investigated the accusation. Dkt. 43, Third Cha Decl., Ex. 5 at 17 96:11-17; see also id. at 169:4-170:3; Cha Second Decl., Ex. D at 60:19-61:5 (“It was important 18 that I notify Compass that I was pulling access because of an allegation. The investigation part 19 would be done by Compass, not us.”). Ms. Jones told Compass Health that “[w]e have pulled 20 access on a temporary basis and then reinstated it,” and that “[i]n this case, I would think that if 21 Compass completed their investigation, and, if upon completion, determine the violation of 22 medical violation of medical confidentiality was valid, and took corrective action, we could 23 certainly discuss his coming back.” Id., Ex. F. Because Compass Health did not follow through ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 3 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 4 of 10 1 on the delegation of authority, Plaintiff’s access to the Jail was never reinstated. Id., ¶¶ 3.34, 6.9; 2 Dkt. 43 Third Cha Decl. Ex. 5 at 169:4-170:19 (“No one [at Compass] has ever gotten back to 3 me.”); Dkt. 37-1, Second Cha Decl. Ex. D at 211:19-212:25 (“[O]nce it was turned over to 4 Compass, I really didn’t hear anything back.”). 5 Plaintiff seeks leave to amend his complaint to add Whatcom County and Compass 6 Health as defendants under 42 U.S.C. § 1983 and to join David Reynolds as a defendant 7 potentially liable under the following claims: Second Cause of Action-Violation of Due Process, 8 42 U.S.C. Section 1983; Third Cause of Action-Violation of Equal Protection, 42 U.S.C. Section 9 1983; Fourth Cause of Action-Tortious Interference; Fifth Cause of Action-Violation of the 10 Washington Law Against Discrimination. Dkt. 37, p. 5. 11 In support of the foregoing causes of action, Plaintiff proposes to allege, inter alia, that 12 (1) his injuries resulted from the implementation or execution of a Whatcom County policy or 13 custom, whether made by its lawmakers or by the edicts and acts of Wendy Jones and David 14 Reynolds; (2) David Reynolds and Wendy Jones possessed final authority to establish Whatcom 15 County policy with respect to the revocation and reinstatement of Plaintiff’s access; (3) the Jail 16 Defendants delegated or granted to Compass Health the responsibility and authority to grant or 17 deny Plaintiff’s Fourteenth Amendment protections in the revocation and reinstatement of his 18 Jail access; (4) the Jail Defendants had no firsthand knowledge of Plaintiff’s actions and did not 19 investigate the allegations prior to revoking his jail access or delegating or granting authority to 20 Compass Health; (5) Jail Defendants insinuated Whatcom County into a position of 21 interdependence with Compass Health in determining whether Plaintiff should have access to the 22 Jail; (6) under its contract with Whatcom County, Compass Health was to hire and manage 23 mental health care providers and Compass Health’s failure to investigate properly and take ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 4 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 5 of 10 1 appropriate action to reinstate Plaintiff fell within its role as contractor with Whatcom County; 2 and (7) Jail Defendants and Compass Health acted jointly and conspired under color of law in 3 denying Plaintiff’s Fourteenth Amendment rights. See, e.g., Dkt. 37-4, ¶¶ 6.4-6.10. 4 5 DISCUSSION Federal policy strongly favors determination of cases on their merits. Therefore, the role 6 of pleadings is limited, and leave to amend the pleadings is freely given unless the opposing 7 party makes a showing of undue prejudice, or bad faith or dilatory motive on the part of the 8 moving party. See Foman v. Davis, 371 US 178, 182 (1962); Sonoma County Ass'n of Retired 9 Employees v. Sonoma County, 708 F3d 1109, 1117 (9th Cir. 2013). The court ordinarily 10 considers five factors when determining whether to grant leave to amend: “(1) bad faith, (2) 11 undue delay, (3) prejudice to the opposing party, (4) futility of amendment,” and (5) whether the 12 pleadings have previously been amended. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th 13 Cir. 1990). The court need not consider all of these factors in each case. Atkins v. Astrue, No. C 14 10-0180 PJH, 2011 WL 1335607, at *3 (N.D. Cal. Apr. 7, 2011). The third factor, however, 15 prejudice to the opposing party, is the “touchstone of the inquiry under rule 15(a).” Eminence 16 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 17 The Jail Defendants do not oppose Plaintiff’s proposed amendment. Although they note 18 that futility of the proposed amendment may be a salient issue, they recognize that such 19 challenges to the pleading are usually deferred until after leave to amend is granted and the 20 amended pleading filed. Dkt. 39, p. 2. (citing SAES Getters S.p.A. v. Aeronex, Inc., 219 F. Supp. 21 2d 1081, 1086 (S.D. Cal. 2002)). 22 23 Compass Health does not object to Plaintiff’s proposed amendment on grounds of bad faith, undue delay, prejudice, or prior amendment. Rather, it argues that it would be futile to ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 5 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 6 of 10 1 allow Plaintiff to bring a 42 U.S.C. § 1983 claim because Compass Health is a private actor, not 2 a state actor. Compass also contends the facts conclusively establish that it had no role in the 3 alleged constitutional deprivation of Plaintiff’s access to the Jail because that authority rested 4 solely with Defendant Jones. Courts freely give leave to amend “when justice so requires.” See Toland v. CNA Ins., 5 6 No. C19-5373 BHS, 2019 WL 6213302, at *1 (W.D. Wash. Nov. 21, 2019) (citation omitted). 7 Motions for leave to amend are rarely denied on futility grounds. See id. (“Defendants present 8 arguments on futility which are more appropriate to a fully-briefed motion to dismiss than to 9 opposition to a motion for leave to amend.”). “A proposed amendment is futile only if no set of 10 facts can be proved under the amendment to the pleadings that would constitute a valid and 11 sufficient claim or defense.” Hofschneider v. City of Vancouver, 182 F. Supp. 3d 1145, 1150 12 (W.D. Wash. 2016). It is also well established that “[a] party should be afforded an opportunity 13 to test his claim on the merits rather than on a motion to amend unless it appears beyond doubt 14 that the proposed amended pleading would be subject to dismissal.” MidMountain Contractors, 15 Inc. v. Am. Safety Indem. Co., No. C10-1239JLR, 2013 WL 12116509, at *3 (W.D. Wash. May 16 7, 2013) (citation omitted); see also id. at *4 (rejecting futility argument because it “depends for 17 its success on proof of facts which are hotly contested at this stage of the litigation, and therefore 18 does not properly form the basis for denying a motion to amend”). Compass Health argues that the proposed Section 1983 claim is futile because it is not a 19 20 state actor and because there is no vicarious liability under 42 U.S.C. § 1983. 21 A. 22 23 State Actor Section 1983 imposes liability on individuals and entities that act “under color of law.” West v. Atkins, 487 U.S. 42, 48 (1988). There are a “number of different factors or tests in ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 6 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 7 of 10 1 different contexts,” and the facts “which would convert the private party into a state actor 2 might vary with the circumstances of the case.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 3 (1982). Ultimately, the question of whether a private party is acting “under color of law” is a 4 “necessarily fact-bound inquiry.” Id. “Only by sifting facts and weighing circumstances can the 5 nonobvious involvement of the State in private conduct be attributed its true significance.” 6 Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961). 7 The determination of whether a nominally private person or corporation acts under color 8 of state law “is a matter of normative judgment, and the criteria lack rigid simplicity.” 9 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295–96, 121 S.Ct. 924, 10 148 L.Ed.2d 807 (2001). “[N]o one fact can function as a necessary condition across the board 11 for finding state action; nor is any set of circumstances absolutely sufficient, for there may be 12 some countervailing reason against attributing activity to the government.” Id. 13 The Ninth Circuit has recognized at least four different general tests that may aid in 14 identifying state action: “(1) public function; (2) joint action; (3) governmental compulsion or 15 coercion; and (4) governmental nexus.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) 16 (citation omitted). “Satisfaction of any one test is sufficient to find state action, so long as no 17 countervailing factor exists.” Id. “Whether these different tests are actually different in operation 18 or simply different ways of characterizing the necessarily fact-bound inquiry that confronts the 19 Court in such a situation need not be resolved here.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 20 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). 21 “The public function test is satisfied only on a showing that the function at issue is ‘both 22 traditionally and exclusively governmental.’” Kirtley, 326 F.3d at 1093 (quoting Lee v. Katz, 276 23 F.3d 550, 555 (9th Cir. 2002)). The close nexus and joint action tests may be satisfied where the ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 7 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 8 of 10 1 court finds “a sufficiently close nexus between the state and the private actor ‘so that the action 2 of the latter may be fairly treated as that of the State itself,’” or where the State has “so far 3 insinuated into a position of interdependence with the [private party] that it was a joint 4 participant in the enterprise.” Jensen, 222 F.3d at 575–58 (quoting Jackson v. Metro. Edison Co., 5 419 U.S. 345, 350, 357–58, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Governmental compulsion or 6 coercion may exist where the State “has exercised coercive power or has provided such 7 significant encouragement, either overt or covert, that the choice must in law be deemed to be 8 that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). 9 At bottom, the inquiry is always whether the defendant has “exercised power ‘possessed by 10 virtue of state law and made possible only because the wrongdoer is clothed with the authority of 11 state law.’” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting 12 United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). 13 Compass Health argues that Plaintiff’s proposed amendment is futile primarily, because 14 “Jones and only ones could revoke [Plaintiff’s] access to the Jail.” Dkt. 40, p. 8. However, 15 Plaintiff alleges in his proposed Second Amended Complaint, that while the Jail Defendants had 16 final authority to revoke and reinstate his jail access, they delegated that authority to Compass 17 Health to investigate the accusation and if found to be valid, to address it so Plaintiff’s access 18 could be restored. Dkt. 37-4, ¶¶ 3.31, 6.4-6.6, 6.8, 7.7-7.8. Plaintiff contends that the facts 19 revealed in discovery indicate that the Jail relied on Compass Health, with whom it had 20 contracted to provide and manage mental health care providers, to investigate the allegations 21 leading to the revocation and/or reinstatement of Plaintiff’s jail access. Plaintiff alleges that the 22 Jail Defendants had an affirmative duty to provide Plaintiff with due process which they 23 delegated to Compass Health. Plaintiff bases these allegations on the testimony of Defendant ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 8 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 9 of 10 1 Jones . . . “[t]he investigation part would be done by Compass, not us.” Dkt. 37-1, Second Cha 2 Decl., Ex. D at 61:1-2. Compass’s resolution of the accusation against Plaintiff was a critical step 3 in the reinstatement of Plaintiff’s jail access. Dkt. 43, Third Cha Decl. at 169:11-170:6 (testifying 4 that if Compass “told me there’s nothing to it, then I would say, okay, then there’s no reason to 5 prevent that access”). Based on the foregoing, the court concludes that Plaintiff has sufficiently alleged facts, at 6 7 this stage in the proceeding, to infer a sufficiently close nexus and/or joint participation of 8 Compass Health with Whatcom County. 9 B. 10 Monell – Vicarious Liability Compass Health also argues that Plaintiff’s proposed § 1983 claims fail under Monell 11 because Compass Health cannot be held vicariously liable for the alleged actions of one or more 12 of its employees. In Monell, the Supreme Court has held that the doctrine of respondent superior 13 is not a basis for rendering municipalities liable under §1983 for the constitutional torts of their 14 employees. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 664-65, 98 S. Ct. 2018, 2022-23, 56 15 L.Ed.2d 611, 619 (1978); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 105 L. Ed. 2d 598, 109 16 S. Ct. 2702 (1989). Additionally, the Court found that Congress did not intend municipalities to 17 be held liable unless action pursuant to an official policy caused the constitutional tort. Id. at 36. 18 Plaintiff’s proposed claims against the municipality Whatcom County are not at issue 19 here. As previously noted, the Jail Defendants do not oppose Plaintiff’s motion to amend. In 20 addition, Plaintiff does not allege that Compass Health is vicariously liable but is directly liable 21 because it failed to investigate the accusation which led to rescission of his Jail access and failed 22 to take appropriate corrective action. Dkt. 37-3, ¶¶ 6.4-6.10. Plaintiff also alleges that based on 23 the facts developed in discovery, Compass acted with deliberate indifference to Plaintiff’s due ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 9 Case 2:21-cv-00930-TL-BAT Document 44 Filed 05/19/22 Page 10 of 10 1 2 3 process right. Id., ¶¶ 6.11-6.15. CONCLUSION Based on Plaintiff’s proposed allegations and the fact-intensive inquiry into whether a 4 private party can be held liable under Section 1983, the Court concludes that Compass Health’s 5 challenges to the proposed pleading are more appropriately reserved for summary judgment. See, 6 e.g., Savin v. City & County of San Francisco, No. 16-cv-05627-JST, 2017 WL 2686546, at 7 *5 (N.D. Cal. June 22, 2017) (“Leave to amend should be given freely, and amendment would 8 not be futile in this instance because the state action element of Section 1983 liability is heavily 9 fact-intensive.”); Riley v. Modesto Irr. Dist., No. CV F 10-2281 AWI GSA, 2011 WL 1459154, 10 at *2-3 (E.D. Cal. Apr. 15, 2011) (granting leave to amend where defendants presented “no 11 argument to support the finding that no set of facts exist” under which they could be held liable 12 under a conspiracy theory as private parties under section 1983). 13 14 15 Accordingly, the Court GRANTS Plaintiff’s motion to amend (Dkt. 37). Plaintiff is directed to file his Second Amended Complaint within ten days of this Order. DATED this 19th day of May, 2022. 16 A 17 BRIAN A. TSUCHIDA United States Magistrate Judge 18 19 20 21 22 23 ORDER GRANTING MOTION TO AMEND AND ADD PARTY - 10
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