Chasse et al v. Humphreys et al, No. 3:2007cv00189 - Document 762 (D. Or. 2009)
Court Description: OPINION AND ORDER: The AMR Defendants' motion for partial summary judgment (#661) is granted as to the section 1983 claims. Plaintiffs' summary judgment motion against the AMR Defendants' Affirmative Defenses 635 ) is denied in part, denied as moot in part, and denied with leave to renew in part. Signed on 10/13/09 by Judge Garr M. King. (ljl)
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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 12 13 14 15 JAMES P. CHASSE, JR., et al., ) ) Plaintiffs, ) ) v. ) ) CHRISTOPHER HUMPHREYS, et al.,) ) Defendants. ) ) No. CV-07-189-HU OPINION & ORDER 16 17 18 19 Tom Steenson STEENSON, SCHUMANN, TEWKSBURTY, CREIGHTON & ROSE, P.C. 500 Yamhill Plaza Building 815 S.W. Second Avenue Portland, Oregon 97204 20 Attorney for Plaintiffs 21 James G. Rice DEPUTY CITY ATTORNEY David A. Landrum DEPUTY CITY ATTORNEY OFFICE OF CITY ATTORNEY 1221 S.W. Fourth Avenue, Room 430 Portland, Oregon 97204 22 23 24 25 Attorneys for City Defendants 26 / / / 27 / / / 28 / / / 1 - OPINION & ORDER 1 2 3 Agnes Sowle COUNTY ATTORNEY Susan M. Dunaway ASSISTANT COUNTY ATTORNEY 501 S.E. Hawthorne Blvd., Suite 500 Portland, Oregon 97214-3587 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Robert E. Barton COSGRAVE VERGEER KESTER, LLP 805 S.W. Broadway Portland, Oregon 97205 Attorneys for Bret Burton & Multnomah County James P. Martin Kari A. Furnanz HOFFMAN HART & WAGNER, LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Attorneys for Sokunthy Eath & Patricia Gayman James L. Dumas Sheri C. Browning LINDSAY, HART, NEIL, & WEIGLER LLP 1300 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97201 Attorneys for AMR Defendants KING, District Judge: In this civil rights action, plaintiffs bring several claims 18 against 19 (Humphreys, Nice, City of Portland, Tri-Met, Potter, and Sizer), 20 the County Defendants (Burton & Multnomah County), the County 21 Nurses (Eath & Gayman)1, and the AMR Defendants (AMR, Stucker, and 22 Hergert). 23 which James P. Chasse, Jr. (Chasse), died in police custody. 24 25 various defendants, including the City Defendants The claims arise from a September 17, 2006 incident in All of the parties have moved for summary judgment as to certain claims. The only motions remaining at this juncture are 26 27 1 28 The County Defendants and the County Nurses were dismissed from the case on August 17, 2009. 2 - OPINION & ORDER 1 the motion by plaintiffs against certain AMR Defendants' 2 affirmative defenses and the motion by Hergert and Stucker as to 3 some of plaintiffs' claims. 4 For the reasons explained below, I deny plaintiffs' motion 5 against the AMR Defendants in part, deny it as moot in part, and 6 deny it with leave to renew in part. 7 motion. 8 I grant Hergert and Stucker's STANDARDS 9 Summary judgment is appropriate if there is no genuine issue 10 of material fact and the moving party is entitled to judgment as a 11 matter of law. 12 initial responsibility of informing the court of the basis of its 13 motion, and identifying those portions of "'pleadings, depositions, 14 answers to interrogatories, and admissions on file, together with 15 the affidavits, if any,' which it believes demonstrate the absence 16 of a genuine issue of material fact." 17 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Fed. R. Civ. P. 56(c). The moving party bears the Celotex Corp. v. Catrett, 18 "If the moving party meets its initial burden of showing 'the 19 absence of a material and triable issue of fact,' 'the burden then 20 moves to the opposing party, who must present significant probative 21 evidence tending to support its claim or defense.'" Intel Corp. v. 22 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 23 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th 24 Cir. 1987)). 25 designate facts showing an issue for trial. 26 322-23. 27 28 The nonmoving party must go beyond the pleadings and Celotex, 477 U.S. at The substantive law governing a claim determines whether a fact is material. 3 - OPINION & ORDER T.W. Elec. Serv. v. Pacific Elec. Contractors 1 Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as 2 to the existence of a genuine issue of fact must be resolved 3 against the moving party. 4 Radio, 5 drawn from the facts in the light most favorable to the nonmoving 6 party. Matsushita Elec. Indus. Co. v. Zenith 475 U.S. 574, 587 (1986). The court should view inferences T.W. Elec. Serv., 809 F.2d at 630-31. 7 If the factual context makes the nonmoving party's claim as to 8 the existence of a material issue of fact implausible, that party 9 must come forward with more persuasive evidence to support his 10 claim than would otherwise be necessary. 11 Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); 12 California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 13 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 14 Id.; In re Agricultural DISCUSSION 15 In their motion for summary judgment, the AMR Defendants move 16 against three claims asserted against them under 42 U.S.C. § 19832, 17 as well as statutory disability discrimination claims asserted 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiffs initially brought three section 1983 claims against the AMR Defendants: (1) plaintiffs' second claim for relief alleging inadequate medical care in violation of the Fourth Amendment; (2) plaintiffs' fourth claim for relief alleging unconstitutional "shocks the conscience" conduct in violation of the Fourteenth Amendment's substantive due process provision; and (3) plaintiffs' fifth claim for relief alleging a violation of the Equal Protection Clause. In a June 3, 2009 Amended Opinion, I granted the AMR Defendants' motion as to the second claim for relief. However, I then allowed plaintiffs to amend the Complaint by interlineation to add the AMR Defendants as defendants to plaintiff's third claim for relief, alleging inadequate medical care under the Fourteenth Amendment, separate from the "shocks the conscience" claim. Essentially, this allowed plaintiffs to move the inadequate medical treatment allegations against the AMR Defendants from the second to the third claim for relief. 4 - OPINION & ORDER 1 against AMR. Portions of the AMR Defendants' motion for summary 2 judgment against plaintiffs have been previously resolved. The 3 following issues remain and presently require resolution: (1) 4 whether there is "state action" sufficient to allow plaintiffs to 5 proceed with their section 1983 claims against the AMR Defendants; 6 (2) whether plaintiffs have created an issue of fact as to whether 7 the AMR Defendants acted with deliberate indifference; (3) whether 8 plaintiffs have created an issue of fact as to whether the AMR 9 Defendants treated plaintiff differently because of his mental 10 illness in violation of the Equal Protection Clause; and (4) 11 whether the AMR Defendants acted in "good faith" such that they are 12 immune from section 1983 liability. 13 As to plaintiffs' motion against the AMR Defendants, two of 14 the five affirmative defenses plaintiffs move against overlap with 15 issues raised in the AMR Defendants' motion: state action and good 16 faith. 17 concern punitive damages. 18 I. 19 The remaining affirmative defenses moved against all These are separately discussed below. State Action I address the state action issue first because it is 20 dispositive of the three section 1983 claims brought by plaintiffs 21 against the AMR Defendants. 22 plaintiff must show the deprivation of a right secured by the 23 Constitution and that the defendant "act[ed] under color of state 24 law." 25 A section 1983 claim may be brought against a private party when 26 that party "is a willful participant in joint action with the State 27 or its agents." 28 2003) (internal quotation omitted). To prevail in a section 1983 claim, a West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 5 - OPINION & ORDER 1 As explained in Kirtley: 2 "The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights fairly attributable to the [government]?" Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)). 3 4 5 6 7 8 9 10 11 12 13 14 "What is fairly attributable [as state action] is a matter of normative judgment, and the criteria lack rigid simplicity.... [N]o one fact can function as a necessary condition across the board ... nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government." Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295-96, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Nonetheless, we recognize at least four different criteria, or tests, used to identify state action: "(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus." Sutton, 192 F.3d at 835-36; see also Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002). Satisfaction of any one test is sufficient to find state action, so long as no countervailing factor exists. Lee, 276 F.3d at 554. 15 Id. (brackets in Kirtley); see also Brentwood Academy, 531 U.S. at 16 295 (noting that "state action may be found if, though only if, 17 there is such a 'close nexus between the State and the challenged 18 action' that seemingly private behavior 'may be fairly treated as 19 that of the State itself.'") (quoting Jackson v. Metropolitan 20 Edison Co., 419 U.S. 345, 351 (1974)). 21 While technically the "under color of state law" requirement 22 for section 1983 claims is distinct from "state action" required 23 for Fourteenth Amendment claims, "the two inquiries are closely 24 related." Johnson v. Knowles, 113 F.3d 1114, 1118 (9th Cir. 1997); 25 see also George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 26 (9th Cir. 1996) ("In § 1983 actions, 'color of state law' is 27 synonymous with state action."). 28 6 - OPINION & ORDER 1 AMR is a private corporation and its employees, Hergert and 2 Stucker, are private citizens.3 Plaintiffs argue that section 1983 3 claims may be maintained against these defendants based on the 4 joint action, governmental nexus, or public function tests. Pltfs' 5 Mem. in Supp. of Pltfs' Mtn. at p. 11. 6 The relevant background facts are undisputed. American 7 Medical Response is a national medical transportation company that 8 provides emergency medical services throughout the United States. 9 AMR Northwest (AMR), the defendant in this case, is a subsidiary of 10 American Medical Response, Inc. and is registered in and doing 11 business in Oregon. 12 Chapter 682 of the Oregon Revised Statutes regulates the 13 provision of ambulance services in the state. 14 Court to two statutes in particular. First, Oregon Revised Statute 15 § (O.R.S.) 682.041 sets forth the legislature's intent that the 16 regulation of ambulance services and the establishment of ambulance 17 service areas are important functions of counties, cities, and 18 rural fire protection districts in the state. O.R.S. 682.041. The 19 legislature affirms the authority of counties, cites, and rural 20 fire protection districts to regulate ambulance services and areas 21 and 22 antitrust laws. to exempt such regulation from Plaintiffs cite the liability under federal Id. 23 Second, plaintiffs cite to O.R.S. 682.062 which requires each 24 county to develop a plan relating to the need for and coordination 25 of ambulance services and to establish one or more ambulance 26 27 28 3 Although the claims against AMR have been bifurcated, the conclusion reached on the state action issue for individual defendants Hergert and Stucker is equally applicable to AMR. 7 - OPINION & ORDER 1 service areas consistent with the plan for the efficient and 2 effective provision of ambulance services. O.R.S. 682.062(1). Any 3 plan developed and any service areas established under O.R.S. 4 682.062(1) must be submitted to the Oregon Health Authority. 5 O.R.S. 682.062(4). 6 adopt rules 7 considered in any plan for ambulance services under subsection (1) 8 and those subjects to be addressed and considered in the adoption 9 of any such plan. The Oregon Health Authority is required to that those subjects O.R.S. 682.062(5). submitted to it and to be addressed and The Oregon Health Authority 10 reviews 11 submitted plan within sixty days, if the plan complies with the 12 rules. 13 plans specify is required to approve a O.R.S. 682.062(6). Multnomah County's "Emergency Medical Services and Ambulance 14 Law" is found at Multnomah County Code §§ 21.400 - 21.443. Pltfs' 15 Exh. 8. 16 provider of emergency ambulance services in the County is to be 17 selected by the Multnomah County Board of Commissioners through a 18 competitive proposal process. 19 County EMS (MCEMS) is defined as the organizational division 20 responsible for the administration and coordination of the EMS 21 system in the County. 22 defined as pre-hospital functions and services whose purpose is to 23 prepare for and respond to medical emergencies, including rescue, 24 first 25 communications, system evaluation, and public education. 26 21.402. 27 coordination of the County's EMS system. 28 County's Health Department, and is recognized by the Oregon Health Under Multnomah County Code § 21.425, the exclusive responder Under section 21.402, Multnomah M.C.C. § 21.402. services, ambulance "EMS" is separately services, patient care, M.C.C. § Generally, MCEMS provides medical oversight and overall 8 - OPINION & ORDER MCEMS is a program of the 1 Division as the EMS medical control authority for the County. 2 Pltfs' Exh. 3 (copy of County webpages related to the EMS System). 3 The County's EMS Medical Director provides medical supervision 4 to 5 direction to the EMS system. 6 January 2005 Request for Proposal for Emergency Ambulance Services 7 states that the successful contractor will be responsible for 8 adhering to the EMS Medical Director's policies, participating in 9 the Medical Director's audit and Quality Improvement processes, and 10 participating in medically-related research as deemed appropriate. 11 Pltfs' Exh. 4 at p. 5. 12 physician supervisor of record for all pre-hospital EMTs. 13 emergency medical technicians (EMTs) and provides See M.C.C. § 21.402. medical The County's The Medical Director will serve as the Id. The duties of the County's EMS Medical Director include the 14 following: 15 policies 16 including adequate due process protections for EMTs; (3) setting 17 standards for training and continuing education; (4) implementing 18 a quality management program designed to provide for the continuous 19 improvement of patient care and other aspects of the EMS system; 20 and (5) promulgating standards of patient care, consistent with the 21 ambulance service area plan, and including, but not limited to: 22 dispatch and pre-arrival protocols, transport triage criteria and 23 protocols, 24 county, and patient care protocols. 25 (1) approving all EMTs for practice; (2) creating for limiting specific the practice requirements for of EMTs EMTs when working necessary, within the M.C.C. § 21.417. The County employs Dr. Jon Jui as its EMS Medical Director. 26 He is not an employee of AMR. 27 agreement between AMR and the County regarding the provision of 28 emergency ambulance services, the County agreed to furnish "state9 - OPINION & ORDER Under the September 1, 2005 1 required medical supervision" as well as "overall supervision and 2 administration" of the agreement and the County quality assurance 3 process. 4 supervision 5 partially fund the County's EMS Medical Director. Pltfs' Exh. 5 at p. 14. and a portion of the The County charges AMR for amount charged is used to Id. 6 The contract between AMR and Multnomah County sets certain 7 specific responsibilities for AMR including response time zones and 8 standards, penalties for non-compliance with the County's response 9 time requirements, staffing, driver training, vehicle and equipment 10 requirements, patient care reports and data collections, and more. 11 Pltfs' Exh. 5. 12 A. 13 17 "Under the public function test, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations." Lee, 276 F.3d at 554-55 (internal quotation marks omitted). The public function test is satisfied only on a showing that the function at issue is "both traditionally and exclusively governmental." Id. at 555. 18 Kirtley, 326 F.3d at 1093; see also Rendell-Baker v. Kohn, 457 U.S. 19 830, 842 (1982) ("the question is whether the function performed 20 has been traditionally the exclusive prerogative of the State. . . 21 . That a private entity performs a function which serves the public 22 does not make its acts state action.") (citations and internal 23 quotation omitted). 24 relatively narrow. 25 (1978) ("While many functions have been traditionally performed by 26 governments, very few have been 'exclusively reserved to the 27 state.'") (quoting Jackson, 419 U.S. at 352). 14 15 16 28 Public Function The scope of the public function doctrine is Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 The Ninth Circuit has not directly addressed the issue of 10 - OPINION & ORDER 1 whether the provision of emergency services is a public function. 2 Other courts have concluded that as a matter of law, the provision 3 of emergency services is not a traditional and exclusive function 4 of the state. E.g., McKinney v. West End Voluntary Ambulance 5 Ass'n, Supp. 6 ambulance association was not a state actor under public function 7 test; plaintiff failed to establish that ambulance service is 8 traditionally the exclusive prerogative of the Commonwealth); see 9 also Krieger v. Bethesda-Chevy Chase Rescue Squad, 599 F. Supp. 10 770, 773 (D. Md. 1984) (rescue or ambulance service is not a public 11 function), aff'd without opinion, 792 F.2d 139 (4th Cir. 1986); 12 Eggleston v. Prince Edward Volunteer Rescue Squad, Inc., 569 F. 13 Supp. 1344, 1350-51 (E.D. Va. 1983) (Emergency transportation 14 services are "more akin to private functions that the State may be 15 just 16 traditionally governmental."), aff'd without opinion, 742 F.2d 1448 17 (4th Cir. 1984). 18 821 F. beginning to 1013, assume 1018-19 than to (E.D. Pa. public 1992) functions (private that are The only evidence in the record regarding the history of the 19 Multnomah 20 services is the following parenthetical history noted at the end of 21 each relevant code section: 22 Ord. 816, passed 04/06/1995)." 23 clear enough that the County's first adoption of laws regulating 24 emergency medical services was no earlier than 1990. 25 evidence of a traditional governmental function. 26 The County state Code sections statutes directed to emergency medical "('90 Code, § 6.33.005, 7/01/1998; also While somewhat ambiguous, it is are relatively This is not recent. The 27 legislative intent expressed in O.R.S. 682.041, and cited by 28 plaintiff, appears to have been originally adopted in 1989. 11 - OPINION & ORDER See 1 O.R.S. 682.041 (indicating this statute was formerly codified at 2 O.R.S. 682.315; O.R.S. 682.315 indicates it was formerly codified 3 at O.R.S. 823.300; O.R.S. 823.300 indicates that it was adopted in 4 1989). 5 service plan was originally adopted in 1977. 6 (indicating this statute was formerly codified at O.R.S. 682.205; 7 O.R.S. 8 823.180; O.R.S. 823.180 indicates it was formerly codified at 9 O.R.S. 485.573, which indicates it was adopted in 1977). 10 The statute requiring the counties to adopt an ambulance 682.205 indicates it was formerly See O.R.S. 682.062 codified at O.R.S. Plaintiffs submit no evidence showing that either the state or 11 the County itself has traditionally and exclusively provided 12 emergency medical services. 13 support their assertion that either the state or Multnomah County 14 has a long history of regulating and supervising such services. It 15 appears that the regulatory oversight by the state is only several 16 decades old, at most, and the regulatory oversight by the County is 17 more recent. 18 and the persuasive authority indicating that in those courts that 19 have considered it, provision of emergency medical services is not 20 an exclusive and traditional public function, I conclude that the 21 AMR Defendants are not state actors under the public function test. Plaintiffs also submit no evidence to With no controlling authority in the Ninth Circuit, 22 B. Joint Action/Governmental Nexus 23 State action/under color of state law cases often describe 24 "joint action" and 25 However, some cases discuss them together. 26 v. Lane County, 222 F.3d 570 (9th Cir. 2000), the Ninth Circuit 27 described its analysis as the "close nexus/joint action test." Id. 28 at 575; see also Brentwood Academy, 531 U.S. at 298 (not using 12 - OPINION & ORDER "governmental nexus" as separate tests. For example, in Jensen 1 either term but discussing the "pervasive entwinement" of public 2 institutions and officials in the composition and workings of the 3 defendant private association). 4 As for "joint action," the Ninth Circuit explains that 5 13 [u]nder the joint action test, courts examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights. . . . The test focuses on whether the state has so far insinuated itself into a position of interdependence with the private actor that it must be recognized as a joint participant in the challenged activity. . . . A plaintiff may demonstrate joint action by proving the existence of a conspiracy or by showing that the private party was a willful participant in joint action with the State or its agents. . . . To be liable as co-conspirators, each participant in a conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy. . . . [A] private defendant must share with the public entity the goal of violating a plaintiff's constitutional rights. 14 Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002) (citations, 15 internal quotations, and brackets omitted) (further noting that 16 "[o]ur cases have been careful to require a substantial degree of 17 cooperation before imposing civil liability for actions by private 18 individuals that impinge on civil rights."); see also Collins v. 19 Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989) ("Joint action . . 20 . requires a substantial degree of cooperative action."). 6 7 8 9 10 11 12 21 As for the governmental nexus "test," Kirtley describes the 22 governmental nexus test as the "most vague of the four approaches." 23 Kirtley, 326 F.3d at 1094. 24 is such a close nexus between the State and the challenged action 25 that the seemingly private behavior may be fairly treated as that 26 of the State itself.'" 27 Brentwood, 531 U.S. at 295); see also Jackson, 419 U.S. at 351 28 ("the inquiry must be whether there is a sufficiently close nexus 13 - OPINION & ORDER "[T]he nexus test asks whether 'there Kirtley, 326 F.3d at 1094-95 (quoting 1 between the State and the challenged action of the regulated entity 2 so that the action of the latter may be fairly treated as that of 3 the State itself."). 4 Plaintiffs here do not rely on a conspiracy theory in support 5 of their joint action argument. 6 support of their state action argument, that the alleged wrongful 7 conduct by the AMR Defendants was inextricably intertwined with the 8 conduct of the officers at the scene of Chasse's arrest and thus, 9 is joint action for that reason. Rather, plaintiffs argue that the 10 exclusive contract between AMR and the County and its particular 11 performance requirements, including the supervision of the EMTs by 12 the County's EMS Medical Director and the EMS Medical Director's 13 issuance of patient care protocols, as well as the extensive 14 government regulation of ambulance services, shows "joint action." 15 Initially, I reject They also do not contend, in plaintiffs' reliance on Lopez v. 16 Department of Health Servs, 939 F.2d 881 (9th Cir. 1991). Lopez 17 holds only that pleading the existence of a government contract is 18 enough to survive a motion to dismiss on the issue of state action. 19 Id. at 883. 20 government contract, nor government regulation, establishes state 21 action in the face of a summary judgment motion. 22 Mfs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999) (noting that 23 the Court's line of "joint action" cases has "established that 24 privately owned enterprises providing services that the State would 25 not 26 regulated, do not fall within the ambit of [joint action].") 27 (internal quotation omitted); Blum v. Yaretsky, 457 U.S. 991, 1004 28 (1982) ("although it is apparent that nursing homes in New York are Supreme Court cases make clear that neither a necessarily provide, 14 - OPINION & ORDER even though they E.g., American are extensively 1 extensively regulated, the mere fact that a business is subject to 2 state regulation does not by itself convert its action into that of 3 the State for purposes of the Fourteenth Amendment.") (internal 4 quotation omitted); Rendell-Baker, 457 U.S. at 841 (noting that 5 "[a]cts of such private contractors do not become acts of the 6 government by reason of their significant or even total engagement 7 in performing public contracts."). 8 In assessing the plaintiffs' state action argument, it is 9 important to note that all three section 1983 claims brought 10 against the AMR Defendants are based on the allegation that Hergert 11 and Stucker acted unreasonably in regard to Chasse's medical needs 12 in one or more of the following ways: 13 adequate and complete history of the nature and cause of Chasse's 14 injuries; (2) by failing to determine the cause and mechanism of 15 his 16 unconsciousness; (3) by failing to perform a complete and thorough 17 physical 18 respiratory status; (5) by failing to take adequate and accurate 19 vital signs; (6) by failing to determine the cause and to treat the 20 condition causing blood to drain from Chasse's mouth; (7) by 21 failing to turn over the care of Chasse to a person of higher 22 medical skill; and (8) by failing to follow the Multnomah County 23 Emergency 24 applicable to someone in Chasse's condition. injuries, exam; including (4) System by his failing protocols, as (1) by failing to take an cessation to of thoroughly well as AMR's breathing assess own and Chasse's protocols, Am. Compl. at ¶ 33. 25 The relevant cases, including Blum, Polk County v. Dodson, 454 26 U.S. 312 (1981), and Jensen, indicate that although Multnomah 27 County regulates ambulance services in the County, and provides 28 oversight, supervision, 15 - OPINION & ORDER and protocols, each of the alleged 1 unconstitutional actions by Hergert and Stucker were individual 2 actions based on their professional judgment and assessment at the 3 scene. 4 of AMR does not intrude into the individual actor's professional 5 decisionmaking rendered in the course of duty. Contrary to plaintiffs' argument, the County's regulation 6 In Blum, a class of Medicaid patients challenged decisions by 7 the nursing homes in which they resided, to discharge or transfer 8 them without notice or an opportunity for a hearing. 9 U.S. at 993. Blum, 457 The question before the Supreme Court was whether the 10 state could be held responsible for those decisions under the 11 Fourteenth Amendment's Due Process Clause. Id. 12 The Court restated concepts from its earlier cases, including 13 that "the mere fact that a business is subject to state regulation 14 does not by itself convert its action into that of the State for 15 purposes of the Fourteenth Amendment." 16 quotation omitted). 17 standards are invoked only when it can be said that the State is 18 responsible for 19 complains." Id. the Id. at 1004 (internal The Court further noted that "constitutional specific conduct of which the plaintiff 20 The Court concluded that the state was not responsible for the 21 nursing homes' decisions to transfer, or not admit, Medicaid 22 patients. 23 nursing homes to make all efforts possible to transfer patients to 24 the appropriate level of care or home as indicated by the patient's 25 medical condition or needs, and although the nursing homes were 26 required to complete patient care assessment forms designed by the 27 state, the regulations did not require the nursing homes to rely on 28 the forms in making discharge or transfer decisions, and did not Id. at 1007. 16 - OPINION & ORDER Although state regulations required 1 demonstrate that the state was responsible for the decision to 2 discharge 3 Critically, as the Court noted, "[t]hose decisions ultimately turn 4 on 5 professional standards that are not established by the State." Id. 6 (emphasis added). or 7 medical In transfer judgments Polk County, particular made the by patients. private Court Id. parties considered at 1008. according whether a to public 8 defender, directly employed by the County, was acting under color 9 of state law when she moved to withdraw as counsel on the basis 10 that the plaintiff's appellate claims were legally frivolous. 11 attorney acted pursuant to a state rule of appellate procedure 12 which provided that if counsel appointed to represent a convicted, 13 indigent defendant in an appeal to the state supreme court was 14 convinced, after investigation of the trial transcript, that the 15 appeal was frivolous, counsel could move in writing to withdraw. 16 Polk County, 454 U.S. at 314 n.2. 17 Although the attorney was a County employee, and The acted 18 pursuant to the rules and procedures adopted by the state and the 19 County regarding representation of indigent clients in criminal 20 appeals, the Supreme Court concluded that the attorney was not 21 acting under color of state law. 22 fact 23 competence and integrity as a private lawyer," and worked "under 24 canons of professional responsibility that mandate his exercise of 25 independent judgment on behalf of the client." that the attorney was The Court relied heavily on the held to the "same standards of Id. at 321. 26 In contrast to Blum and Polk County where the challenged 27 conduct of the private actors was in fact guided by independent 28 professional standards, the Ninth Circuit in Jensen concluded that 17 - OPINION & ORDER 1 the challenged conduct 2 intertwined" public and private process, and thus, there was 3 sufficient state action. 4 section 1983 claim against Lane County, certain officials, a 5 hospital, 6 plaintiff's mental health detention. Jensen, 222 F.3d at 573. The 7 plaintiff 8 corrections facility. 9 mental and was a was the product of a "deeply In Jensen, the plaintiff brought a private arrested health there physician and booked in at connection the Lane with County the adult Two days later, Richard Sherman, a senior specialist employed by Lane County, received 10 information reporting concerns about the plaintiff's behavior. 11 After 12 Sherman concluded that probable cause existed to believe that the 13 plaintiff was a danger to himself or others. Sherman, believing he 14 had a statutory duty to do so, brought the case to the attention of 15 Dr. Jeffery Robbins, M.D., a contract psychiatrist affiliated with 16 a private group called Psychiatric Associates (PA). 17 consulted with Dr. Ekanger, a senior mental health specialist 18 employed by Lane County. 19 reviewing certain documents and meeting the plaintiff, Sherman also Sherman recommended that the plaintiff be held at Lane County 20 Psychiatric Hospital for evaluation. 21 detaining the plaintiff for evaluation pursuant to O.R.S. 426.232. 22 The next day, Dr. Robbins took a history and performed a physical. 23 He continued the plaintiff's detention, meeting briefly with him 24 each of the next three days. 25 investigation to determine whether to pursue statutory involuntary 26 commitment proceedings before the court. 27 Robbins then 28 agreed that Dr. Robbins signed an order Meanwhile, Dr. Ekanger conducted an the plaintiff Dr. Ekanger and Dr. should be released. The plaintiff filed a section 1983 action alleging that Dr. 18 - OPINION & ORDER 1 Robbins and the other named defendants 2 constitutional rights by ordering him admitted to the psychiatric 3 hospital without due process of law. 4 a private individual, the court had to determine if the plaintiff 5 could sustain the section 1983 claim against him. Id. had violated his Because Dr. Robbins was 6 The court first noted that because the case before it combined 7 private actors and government officials, other cases which had 8 found no state action when purely private actors obtained the help 9 of a private physician to bring about the involuntary admission and 10 detention 11 controlling. 12 13 14 15 16 17 18 19 20 21 of an allegedly mentally ill person, were not Id. at 574. The court then explained that Dr. Robbins relied on Blum to argue that there was no state action: Dr. Robbins asserts that Blum is directly analogous. He argues that, by contract and in practice, it is the committing physician that must make the medical judgment under which a person is detained for a psychiatric evaluation. Indeed, the statutory obligation of the physician is to order the detention of those persons whom he or she believes to be a danger to self or others. . . . The service contract and [the psychiatric hospital's] policies both anticipate that the psychiatrist on call will exercise clinical judgment. The real issue here is whether the state's involvement in the decision-making process rises to a level that overrides the "purely medical judgment" rationale of Blum. Id. at 575 (footnote omitted). 22 Although the Ninth Circuit rejected Blum as "not controlling," 23 it cited familiar precepts from Blum and Jackson in recognizing 24 that "detailed regulation of and substantial funding for private 25 actors are not sufficient to transform the party's conduct into 26 state action" and that "the State must be so far insinuated into a 27 position of interdependence with the private party that it was a 28 joint participant in the enterprise." 19 - OPINION & ORDER Id. (citing Blum, 457 U.S. 1 at 1011; quoting Jackson, 419 U.S. 357-58) (brackets omitted). 2 3 The then concluded constituted state action. 4 that Dr. Robbins's conduct The court explained that Dr. Robbins and the County through its employees have undertaken a complex and deeply intertwined process of evaluating and detaining individuals who are believed to be mentally ill and a danger to themselves or others. County employees initiate the evaluation process, there is significant consultation with and among the various mental health professionals (including both PA psychiatrists and county crisis workers), and PA helps to develop and maintain the mental health policies of [the psychiatric hospital]. We are convinced that the state has so deeply insinuated itself into this process that there is a sufficiently close nexus between the State and the challenged action of the defendant so that the action of the latter may be fairly treated as that of the State itself. 5 6 7 8 9 10 11 12 court Id. (internal quotation omitted). 13 In contrast to Jensen, the facts in the instant case require 14 a determination of no state action. 15 some aspects of emergency medical services, and the Multnomah 16 County Code addresses the provision of such services in Multnomah 17 County, there is no evidence in this record demonstrating that the 18 EMTs 19 professional judgment to assess a situation and then determine the 20 appropriate course of action. in the field rely on While state statutes regulate anything but their individual 21 Dr. Jui's status as the medical director and his issuance of 22 various protocols do not show that the "State [or County] is 23 responsible for 24 complains." Blum, 457 U.S. at 1004. 25 regulations or protocols that dictate the EMTs' provision of 26 medical care. Additionally, despite the references to patient care 27 protocols, in the plural, the summary judgment record contains a 28 copy of only one protocol. the 20 - OPINION & ORDER specific conduct of which the plaintiff I see nothing in the County's Plaintiffs' Exhibit 7 is a copy of 1 protocol addressing a "Non-Transport Procedure." 2 It is entitled "Refusal and Informed Consent Flow Chart." 3 Notably, the first step in the flow chart requires the EMTs to 4 "Assess Patient's Medical Need." Id. 5 chart whether 6 traumatic 7 problem, whether there is normal mental status, and then, whether 8 there is an ability to make decisions. require the injury, assessment whether of there is Pltfs' Exh. 7. Id. Other boxes in the flow an there is a identifiable sign of behavior Id. 9 Nothing in the flow chart sets forth the process by which the 10 EMTs render their evaluations or observation of medical need, 11 traumatic injury, behavior problems, mental illness, or ability to 12 make decisions. 13 using the EMT's education, training, and experience. 14 mandated 15 procedural 16 independent professional judgment according to national standards 17 for paramedic practice. See Declaration of Plaintiffs' Expert Paul 18 Werfel at ¶ 2 (Pltfs' Exh. 96) (noting that he is familiar with the 19 standards which apply to paramedic medicine and that these are 20 national standards). 21 by the Rather, these are professional assessments made County's protocol, and protocol, which Jensen is distinguishable. does which not is They are not essentially supplant the use a of Here, the County was not involved 22 in the actual decisions of the EMTs that are challenged in this 23 case. 24 together as a team to determine whether the plaintiff in Jensen 25 should 26 professional medical judgment, the detention decision was the 27 product of an evaluation and commitment process involving both 28 county employees and Dr. Robbins. In contrast, Dr. Robbins and Lane County employees worked be detained. 21 - OPINION & ORDER While Dr. Robbins employed his own Thus, the Ninth Circuit readily 1 concluded that the private and public actors engaged in a "deeply 2 intertwined process" which overrode the "'purely medical judgment' 3 rationale of Blum." Jensen, 222 F.3d at 575. 4 Here, the evidence fails to establish that the County is 5 responsible for the specific conduct of which plaintiffs complain. 6 While the protocols establish procedures and guidelines for the 7 provision 8 substitute 9 exercised by the EMTs in their treatment of Chasse. of care, for the there is no independent evidence that professional they medical create a judgment The facts here 10 do not support an "override" of Blum's independent medical judgment 11 rationale. 12 state action and that the EMTs were not acting under color of state 13 law. Rather, Blum and Polk County indicate that there is no 14 It is important to recognize that this conclusion does not end 15 the case against AMR. Plaintiffs still have a statutory disability 16 discrimination claim against AMR, and importantly, a wrongful death 17 claim, based on the same allegations as the section 1983 claims. 18 My conclusion here is only that the private actor AMR Defendants 19 may not be held responsible for constitutional violations. 20 no judgment on the viability of the remaining claims against AMR. 21 I grant summary judgment to the AMR Defendants on plaintiffs' I make 22 third, fourth, and fifth claims for relief. I do not address the 23 remaining arguments raised by the AMR Defendants' summary judgment 24 motion. 25 affirmative defense of state action. 26 motion for summary judgment on the affirmative defense of good 27 faith. 28 / / / I deny plaintiffs' motion for summary judgment as to the 22 - OPINION & ORDER I deny as moot plaintiffs' 1 2 II. Remaining Issues in Plaintiffs' Motion In their Answer to the Amended Complaint, the AMR Defendants 3 assert three affirmative defenses regarding punitive damages. 4 response to plaintiffs' summary judgment motion, the AMR Defendants 5 withdraw two of them: the tenth affirmative defense asserting that 6 punitive damages are unconstitutional as a violation of double 7 jeopardy 8 punitive damages are unconstitutional as a violation of the ex post 9 facto clause. 10 and the eleventh affirmative defense asserting In that In light of the withdrawal, I deny plaintiffs' motion as to these affirmative defenses as moot. 11 In their ninth affirmative defense, the AMR Defendants assert 12 that punitive damages are unconstitutional as a violation of due 13 process. 14 defense, with leave to renew, if appropriate. I deny plaintiffs' motion against this affirmative 15 16 CONCLUSION The AMR Defendants' motion for partial summary judgment (#661) 17 is granted as to the section 1983 claims. 18 judgment motion against the AMR Defendants' Affirmative Defenses 19 (#635) is denied in part, denied as moot in part, and denied with 20 leave to renew in part. 21 Plaintiffs' summary IT IS SO ORDERED. 22 Dated this 13th day of October , 2009. 23 24 25 /s/ Garr M. King Garr M. King United States District Judge 26 27 28 23 - OPINION & ORDER
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