Henderson v. Arpaio et al, No. 2:2009cv00154 - Document 44 (D. Ariz. 2010)
Court Description: ORDER granting 38 Defendant Bayse's Motion for Summary Judgment, the claims against him are dismissed with prejudice. The case is terminated, and the Clerk shall enter judgment accordingly. Signed by Judge G Murray Snow on 6/30/10.(LSP)
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Henderson v. Arpaio et al 1 Doc. 44 WO SVK 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeremy David Henderson, Plaintiff, 10 11 vs. 12 Joseph Arpaio, et al. 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-0154-PHX-GMS (LOA) ORDER 15 16 Plaintiff Jeremy David Henderson filed this civil rights action under 42 U.S.C. § 1983 17 against City of Mesa Police Officers Frank Hermosillo and John LaFontaine; Joseph Arpaio, 18 Maricopa County Sheriff; and Greg Basye, emergency room employee at Mountain Vista 19 Hospital. (Doc. #12.) Bayse, the only remaining Defendant, moves for summary judgment. 20 (Doc. #38.) Although the Court issued a Notice pursuant to Rand v. Rowland, 154 F.3d 952, 21 962 (9th Cir. 1998) (en banc), advising Plaintiff of his obligation to respond, Plaintiff filed 22 no response. (Doc. #40.) The motion is ready for ruling. The Court will grant Defendant’s motion and terminate the case. 23 24 I. Background 25 Plaintiff’s claims arise out of his arrest on January 28, 2008, by Hermosillo and 26 LaFontaine. The First Amended Complaint alleged that Hermosillo and LaFontaine used 27 excessive force on Plaintiff during his arrest when they sent a K-9 to attack Plaintiff; that 28 Arpaio was deliberately indifferent regarding alleged abuse by K-9 units; and that Basye was Dockets.Justia.com 1 deliberately indifferent in treating Plaintiff’s injuries. (Doc. #12.) The Court ordered all 2 Defendants to answer the First Amended Complaint. (Doc. #11.) The Court subsequently 3 dismissed Arpaio and later dismissed Hermosillo and La Fontaine (Doc. ##27, 43.) 4 Bayse now moves for summary judgment on the grounds that (1) he is not a state actor 5 and did not act under color of law, so there is no claim against him under 42 U.S.C. § 1983, 6 and (2) he was not deliberately indifferent to Plaintiff’s serious medical needs. (Doc. #38.) 7 II. Legal Standards 8 A. Summary Judgment 9 A court must grant summary judgment if the pleadings and supporting documents, 10 viewed in the light most favorable to the non-moving party, “show that there is no genuine 11 issue as to any material fact and that the movant is entitled to judgment as a matter of law.” 12 Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under 13 summary judgment practice, the moving party bears the initial responsibility of presenting 14 the basis for its motion and identifying those portions of the record, together with affidavits, 15 which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 16 U.S. at 323. 17 If the moving party meets its initial responsibility, the burden then shifts to the 18 opposing party who must demonstrate the existence of a factual dispute and that the fact in 19 contention is material, i.e., a fact that might affect the outcome of the suit under the 20 governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the 21 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for 22 the non-moving party. Id. at 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 23 1221 (9th Cir. 1995). Rule 56(e) compels the non-moving party to “set out specific facts 24 showing a genuine issue for trial” and not to “rely merely on allegations or denials in its own 25 pleading.” Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 26 475 U.S. 574, 586-87 (1986). The opposing party need not establish a material issue of fact 27 conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require 28 a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank -2- 1 of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). However, Rule 56(c) mandates 2 the entry of summary judgment against a party who, after adequate time for discovery, fails 3 to make a showing sufficient to establish the existence of an element essential to that party’s 4 case and on which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322- 5 23. 6 When considering a summary judgment motion, the court examines the pleadings, 7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 8 if any. Fed. R. Civ. P. 56(c). At summary judgment, the judge’s function is not to weigh the 9 evidence and determine the truth but to determine whether there is a genuine issue for trial. 10 Anderson, 477 U.S. at 249. The evidence of the non-movant is “to be believed, and all 11 justifiable inferences are to be drawn in his favor.” Id. at 255. But, if the evidence of the 12 non-moving party is merely colorable or is not significantly probative, summary judgment 13 may be granted. Id. at 249-50. 14 B. Claims Under 42 U.S.C. § 1983 15 Section 1983 provides a cause of action against persons acting under color of state 16 law who have violated rights guaranteed by the United States Constitution and federal law. 17 42 U.S.C. § 1983; see also Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995). 18 C. 19 A pretrial detainee’s claim for unconstitutional treatment arises from the Due Process 20 Clause. Bell v. Wolfish, 441 U.S. 520 (1979). The Due Process Clause requires a 21 governmental authority to provide medical care to a person injured while being apprehended 22 by the police, and police fulfill their constitutional obligation by seeing that an injured person 23 is taken promptly to a hospital. City of Revere v. Mass. General Hosp., 463 U.S. 239, 244-45 24 (1983). The due process rights of such a person are at least as great as the Eighth 25 Amendment protections afforded to a convicted prisoner, which prohibit deliberate 26 indifference to serious medical needs. Id. at 243-44 (citing Estelle v. Gamble, 429 U.S. 97, 27 104 (1976). 28 Deliberate Indifference to Serious Medical Needs To prevail on a claim under the Eighth Amendment for prison medical care, a prisoner -3- 1 must demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 2 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff 3 must show (1) a “serious medical need” by demonstrating that failure to treat the condition 4 could result in further significant injury or the unnecessary and wanton infliction of pain and 5 (2) the defendant’s response was deliberately indifferent. Jett, 439 F.3d at 1096 (citations 6 omitted). 7 III. Motion for Summary Judgment A. 8 Parties’ Contentions 1. 9 Defendant 10 In support of his motion, Defendant submits his Statement of Facts (Doc. #39, 11 (DSOF)); Incident/Investigation Supplement Reports, dated January 29, 2008 (id., Exs. A-B); 12 Mesa Fire Department EMS Encounter Form (id., Ex. C); Southwest Ambulance Form (id., 13 Ex. D); Plaintiff’s Mountain Vista Medical Center Records (id., Ex. E); Mesa Police 14 Department Incident/Investigation Report (id., Ex. F); the Maricopa County Superior Court 15 Sentence of Imprisonment for CR2008-106716 (id., Ex. G); and the affidavit of Stuart 16 Richards (id., Ex. H). 17 Defendant submits evidence of the events leading up to Plaintiff’s arrest on the night 18 of January 29, 2008. Because this evidence is undisputed and because the Court has already 19 granted summary judgment to Officers Hermosillo and LaFontaine, the Court simply notes 20 that it is undisputed that during the arrest, Plaintiff sustained bites from LaFontaine’s police 21 dog. 22 Defendant’s evidence shows that once Plaintiff was under arrest, Mesa Fire 23 Department EMS responded to the scene to address the dog bites. (DSOF ¶ 26, Exs. B, C.) 24 The EMS personnel noted that Plaintiff had four puncture wounds to his left forearm 25 consistent with dog bites. (Id. ¶ 27.) The two puncture wounds on Plaintiff’s upper anterior 26 forearm had muscle tissue protruding from the wounds, and the two punctures wounds on the 27 posterior side of his arm showed no tissue. (Id. ¶ 28.) Bleeding from all puncture wounds 28 was controlled, and Plaintiff was taken to Mountain Vista Medical Center by Southwest -4- 1 Ambulance for further care. (Id. ¶ 29.) 2 Defendant asserts that Plaintiff arrived at the Mountain Vista Medical Center 3 Emergency Department (ED) at approximately 0315 and was seen at approximately 0320 by 4 Defendant. (Id. ¶ 30.) Defendant contends that Plaintiff reported to the triage nurse that his 5 immunizations were current. (Id. ¶¶ 31-34.) ED staff noted that Plaintiff’s skin was warm 6 and dry, on admission, his pulse was 101, “100% pulse oximetry,” and blood pressure 7 129/84, and Plaintiff was noted to be oriented x 4. (Id. ¶ 35.) Nursing staff noted “WNL” 8 in the section of the assessment marked “EENT” for eyes, ears, nose and throat. Plaintiff 9 reported a history of substance abuse, and use of tobacco and alcohol. (Id. ¶ 36.) No 10 gastrointestinal or genitourinary complaints were noted. (Id. ¶ 37.) Other than Plaintiff’s 11 report of pain in his left arm, no alteration in sensation is recorded in the ED records. (Id. 12 ¶ 38.) 13 Defendant examined Plaintiff and noted a full range of motion in his left arm and 14 multiple dog bites of varying depths and lengths; the two largest lacerations had muscle 15 tissue sticking out. (Id. ¶¶ 39-40.) Defendant injected local anesthetic and cleaned the 16 wounds with copious quantities of saline and Shur-cleanse and removed small bits of grass. 17 (Id. ¶ 41.) He closed the three largest lacerations loosely with 4-0 prolene sutures and did 18 a sterile cleanse of Plaintiff’s entire left arm; a nurse applied bacitracin dressings. (Id. ¶¶ 42- 19 43.) Defendant advised Plaintiff about his injuries and the need to follow up with a doctor 20 the next day. (Id. ¶ 44.) Defendant also prescribed an antibiotic, Augmentin, to prevent 21 infection, and Percocet as needed for pain. (Id. ¶ 45.) Plaintiff was discharged from the ED 22 at approximately 0355. (Id. ¶ 46.) 23 24 25 After his treatment was concluded, Plaintiff was discharged, and officers transported him to the Mesa City Jail where he was booked. (Id. ¶ 47.) 2. Plaintiff 26 As noted, Plaintiff did not respond to the motion. Because a verified complaint may 27 be used as an affidavit opposing summary judgment if it is based on personal knowledge and 28 sets forth specific facts admissible in evidence, the Court will consider the allegations set -5- 1 forth in Plaintiff’s First Amended Complaint. Schroeder v. McDonald, 55 F.3d 454, 460 (9th 2 Cir. 1995). In his First Amended Complaint, Plaintiff alleged that Defendant looked at 3 Plaintiff’s arm and provided inadequate medical care by only stitching the injuries and that 4 Plaintiff was going into shock and should have been admitted for observation and treatment. 5 (Doc. #12 at 4-4A.) He alleged that Defendant placed his life in danger “through circulatory 6 collapse.” (Id. at 4-A.) Plaintiff asserted that he was taken back to the jail with no medical 7 treatment or observation and that he was later transported to Maricopa County Medical 8 Center for emergency medical treatment. (Id.) He remained there for four weeks and had 9 two surgeries. (Id. at 4-B.) He claims that he now suffers from atrophy of his arm, nerve and 10 muscle damage, and disfigurement. (Id.) 11 C. Analysis 12 The Court will grant summary judgment to Defendant. The Court assumes that 13 Plaintiff’s bite wounds constituted a serious medical need, but Defendant submits evidence 14 that he did not act with deliberate indifference to Plaintiff’s bite wounds. Plaintiff fails to 15 rebut Defendant’s evidence and show a material dispute of fact on this issue. Defendant submits undisputed evidence that he examined Plaintiff, that Plaintiff’s 16 17 vital signs were determined, and that Defendant cleaned and sutured the wounds on 18 Plaintiff’s arms. Plaintiff asserts in his First Amended Complaint that Defendant provided 19 “inadequate” medical care; but mere claims of “indifference,” “negligence,” or “medical 20 malpractice” do not support a claim under § 1983. Broughton v. Cutter Laboratories, 622 21 F.2d 458, 460 (9th Cir. 1980). Inadequate treatment due to malpractice or even gross 22 negligence does not constitute an Eighth Amendment violation. Wood v. Housewright, 900 23 F.2d 1332, 1334 (9th Cir. 1990). And differences in judgment between an inmate and prison 24 medical personnel regarding an appropriate medical diagnosis or treatment are not enough 25 to establish a deliberate-indifference claim. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 26 1996). 27 Summary judgment is appropriate when a party fails to make a showing sufficient to 28 establish the existence of an element essential to his case and on which he would have the -6- 1 burden of proof at trial. Celotex Corp., 477 U.S. at 322-23. Plaintiff has the burden of proof 2 on standard of care—he must provide competent evidence that Defendant’s treatment fell 3 below the standard of care—and expert medical testimony is generally required to establish 4 standard of care. See Gorney v. Meaney, 150 P.3d 799, 802 (Ariz. App. 2 Div. 2007) (the 5 “factual basis” and “breach of duty” provisions of Ariz. Rev. Stat. § 12-2603 require a 6 plaintiff’s expert to state the factual basis of plaintiff’s claim and list those acts the expert 7 determined fell below the standard of care). It was incumbent upon Plaintiff to provide an 8 affidavit or deposition of an expert to establish standard of care. See Hutchinson v. United 9 States, 838 F.2d 390, 393 (9th Cir. 1988) (granting summary judgment against a plaintiff 10 who relied only on her own allegations and conclusory statements that defendants had been 11 negligent and who failed to provide affidavits or depositions of experts). This Plaintiff failed 12 to do. 13 The Court will grant summary judgment as to Bayse. In addition, because no claims 14 or Defendants remain, the Court will terminate the case. 15 IT IS ORDERED: 16 17 18 19 (1) The reference to the Magistrate Judge is withdrawn as Defendant Bayse’s Motion for Summary Judgment (Doc. #38). (2) Defendant Bayse’s Motion for Summary Judgment (Doc. #38) is granted, and the claims against him are dismissed with prejudice. 20 (3) The case is terminated, and the Clerk of Court must enter judgment accordingly. 21 DATED this 30th day of June, 2010. 22 23 24 25 26 27 28 -7-
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