Kellogg v. Kitsap County et al, No. 3:2012cv05717 - Document 32 (W.D. Wash. 2013)
Court Description: ORDER DENYING DEFENDANT KITSAP COUNTY'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C), denying 25 Motion to Dismiss. Signed by Judge Robert J. Bryan. (JL)
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Kellogg v. Kitsap County et al Doc. 32 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 BRADY KELLOGG, individually, Plaintiff, 12 13 14 15 16 17 18 19 20 v. CASE NO. C12-5717 RJB ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C) KITSAP COUNTY, a Municipal Corporation organized under the laws of the State of Washington; Nurse KEVIN DOE and JANE DOE, whose true names are not now known, husband and wife, and the marital community comprised thereof; CONMED, Inc., a Foreign Corporation doing business in Kitsap County Washington, Defendants. This matter comes before the Court on Defendant Kitsap County’s motion for dismissal 21 of all of Plaintiff’s claims against the County which are premised upon the actions of the County 22 as opposed to the actions which are alleged to be imputed to the County through the actions of 23 Defendant ConMed, with whom the County contracted to provide medical services. Dkt. 25 and 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 1 Dockets.Justia.com 1 Dkt. 26-1. The Court has considered the pleadings in support of and in opposition to the motion 2 and the record herein. 3 4 INTRODUCTION AND BACKGROUND Plaintiff brings these claims against Kitsap County under 42 U.S.C. §1983, which 5 provides a cause of action for individuals deprived of a federal right by persons acting under 6 color of state law. Plaintiff’s complaint alleges that he received constitutionally inadequate 7 medical care while in the custody of the Kitsap County Correctional Facility. Dkt. 1 pp. 7-8. 8 Plaintiff’s Complaint contains, in part, the following allegations: 9 Kitsap County contracted with Defendant ConMed, Inc. to provide inmate healthcare 10 services. Dkt. 1 p. 3. ConMed was paid a flat rate of compensation, regardless of medical 11 needs of the inmate population. Id. Defendant ConMed hired and supervised Defendant nurse 12 Kevin Doe to act on its behalf in fulfilling its contract with Kitsap County. Id. 13 Plaintiff was arrested by the Kitsap County Sheriff's Office on June 13, 2009, on a 14 misdemeanor charge and taken at 9:08 a.m. to the Kitsap County Jail for processing and to be 15 held until he could be brought before a court. Id. Plaintiff was a practicing alcoholic and had 16 consumed a considerable amount of alcohol the night before his arrest. Id. p. 4. During the 17 booking process Plaintiff under-reported his actual use of alcohol and the arresting officer was 18 unaware of Plaintiff’s consumption or use of a potentially dangerous level of alcohol. Id. 19 After his booking and while housed in the holding cell waiting to be released on bail, 20 Plaintiff became very thirsty and in need of water. Id. p. 5. Plaintiff asked for and was given a 21 glass of water by jail personnel. Although the holding cell contained a drinking fountain, 22 Plaintiff felt he could not use the fountain as it only trickled water and would require Plaintiff to 23 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 2 1 place their lips on the fountain, exposing him infectious diseases. Id. When Plaintiff asked for 2 additional water, he was told by jail personnel to use the fountain. Id. 3 Plaintiff rang a bell for help and after a long while, at 2:30 pm Defendant nurse Kevin 4 Doe and a guard arrived. Id. p. 6. Plaintiff informed the nurse that he had earlier under5 reported his alcohol dependency, and that he was an extreme alcoholic, and was afraid of what 6 might happen to him, as it had been so long since his last drink. Id. Defendant Doe noted that 7 Plaintiff was going to be bailed out by his mother and going straight to detox. Defendant Doe 8 talked with Plaintiff about self-calming measures but provided no medications, nor instructions 9 for the guards that Plaintiff was to get free access to water. Id. 10 At 3:45 p.m., as he was standing at the booking desk, Plaintiff had a seizure, causing 11 him to lose consciousness and fall to the concrete flooring, causing a pulverizing fracture of his 12 shoulder, with severe comminuted fracturing of his humeral head, and an almost complete 13 labral tear. Id. p. 7. 14 Plaintiff alleges that the failure by Defendant nurse DOE to take timely, reasonable, 15 inexpensive and appropriate steps to ameliorate, mitigate and avoid the effects of alcohol 16 withdrawal for a known incarcerated alcoholic, known to be in withdrawal distress, constitutes 17 deliberate indifference to Plaintiff’s medical needs, and was a violation of the rights of the 18 Plaintiff. Id. pp. 7-8. The complaint asserts that the avoidance by Defendant Doe of incurring 19 medical expense by the Defendants, and the implementation of the practice to deny, delay and 20 interfere with provision of medical care, and of referring such care to other medical providers 21 was in furtherance of the policies and customs and usage of Defendants Kitsap County or 22 ConMed, or both. Id. p. 8. 23 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 3 1 2 JUDGMENT ON THE PLEADINGS STANDARD After the pleadings are closed, but within such time as not to delay the trial, any party 3 may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). A judgment on the pleadings is 4 appropriate when, even if all the allegations in the complaint are true, the moving party is 5 entitled to judgment as a matter of law. Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 6 1036, 1042 (9th Cir .2005). 7 A motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) and a motion to 8 dismiss under Fed. R. Civ. P. 12(b)(6) are virtually interchangeable. See Dworkin v. Hustler 9 Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989); Dworkin v.. Hustler Magazine, Inc., 867 10 F.2d 1188, 1192 (9th Cir. 1989). Under either provision, a court must determine whether the 11 facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy, and must 12 dismiss the claim or enter judgment on the pleadings if the complaint fails to state a legally 13 sufficient claim. Ross v. U.S. Bank Nat'l Ass'n, 542 F.Supp.2d 1014, 1023 (N.D. Cal. 2008). 14 As with Rule 12(b)(6) motions, review on a motion pursuant to Rule 12(c) is normally 15 limited to the complaint itself. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). The 16 Court should assume the allegations in the complaint are true and construe them in the light most 17 favorable to the plaintiff, and the movant must clearly establish that no material issue of fact 18 remains to be resolved. McGlinchey v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). 19 A complaint must include enough facts to state a claim for relief that is “plausible on its 20 face” and to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 21 550 U.S. 544, 555 (2007). The complaint need not include detailed factual allegations, but it 22 must provide more than “a formulaic recitation of the elements of a cause of action.” Id. A 23 claim is facially plausible when plaintiff has alleged enough factual content for the court to draw 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 4 1 a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 2 556 U.S. 662, 677 (2009). 3 4 DELIBERATE INDIFFERENCE TO MEDICAL NEEDS The Eighth Amendment's prohibition against cruel and unusual punishment/deliberate 5 indifference to serious medical needs does not directly apply to pretrial detainees, but only 6 applies after conviction and sentence. See Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989). 7 However, the Supreme Court has held that “[p]retrial detainees, who have not been convicted of 8 any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted 9 prisoners.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). “Thus, while the eighth amendment 10 proscribes cruel and unusual punishment for convicted inmates, the due process clause of the 11 fourteenth amendment proscribes any punishment of pretrial detainees.” Redman v. County of 12 San Diego, 942 F.2d 1435, 1441 n. 7 (9th Cir.1991). In light of these Supreme Court's rulings, 13 the Ninth Circuit has concluded that the ‘deliberate indifference’ standard applies to claims that 14 correction facility officials failed to address the medical needs of pretrial detainees. Clouthier v. 15 County of Contra Costa, 591 F.3d 1232, 1242–43 (9th Cir. 2010); Frost v. Agnos, 152 F.3d 16 1124, 1128 (9th Cir. 1998). 17 For these reasons, the Court construes Plaintiff's deliberate indifference claims as 18 Fourteenth Amendment due process claims, subject to Eighth Amendment standards. To state a 19 potentially cognizable claim pursuant to these standards, a plaintiff must satisfy a two-pronged 20 test. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). First, the plaintiff must show a serious 21 medical need by demonstrating that failure to treat a prisoner's condition could result in further 22 significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must 23 show the defendant's response to the need was deliberately indifferent. This second prong is 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 5 1 satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible 2 medical need and (b) harm caused by the indifference. Id. 3 Plaintiff's allegation that he has been injured by the implementation of, and compliance 4 with, allegedly unconstitutional governmental policies, while broadly stated, may state 5 potentially cognizable claims against Kitsap County, provided Plaintiff can demonstrate a causal 6 connection between the challenged policy and the allegedly unconstitutional deprivation. 7 8 MUNICIPAL LIABILITY PURSUANT TO 42 U.S.C. § 1983 Liability under 42 U.S.C. §1983 arises only upon a showing of personal participation by 9 the defendant. There is no respondeat superior liability under Section 1983. Taylor v. List, 880 10 F.2d 1040, 1045 (9th Cir. 1989); Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007); Ortez v. 11 Washington Cnty., State of Or., 88 F.3d 804, 809 (9th Cir. 1996). Entities cannot be liable for 12 the conduct of their employees under the theory of respondeat superior. City of Canton, Ohio v. 13 Harris, 489 U.S. 378, 385 (1989); Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 14 694 (1978). A local government entity may not be sued under Section 1983 for an injury 15 inflicted solely by its employees or agents. Monell, 436 U.S. at 694. Instead, it is when 16 “execution of a government's policy or custom ... inflicts the injury that the government as an 17 entity is responsible under § 1983.” Id. Therefore, the first inquiry in a case alleging municipal 18 liability under § 1983 is whether there is a direct causal link between a municipal policy or 19 custom and the alleged constitutional deprivation. Harris, 489 U.S. at 385. 20 A local government may also be liable for constitutional violations resulting from its 21 failure to supervise, monitor or train, but only where the inadequacy of said supervision, 22 monitoring or training amounts to deliberate indifference to the rights of the people with whom 23 the local government comes into contact. See City of Canton v. Harris, 489 U.S. 378, 388 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 6 1 (1989); Long v. County of Los Angeles, 442 F.3d 1178, 1188-89 (9th Cir. 2006); Van Ort v. 2 Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); Mackinney v. Nielsen, 69 F.3d 1002, 1010 3 (9th Cir. 1995). Only where a failure to supervise and train reflects a “deliberate or conscious 4 choice” by a local government can the local government be liable under § 1983. Harris, 489 U.S. 5 at 389. Further, the plaintiff must demonstrate that the alleged deficiency in supervision and 6 training actually caused the requisite indifference. Id., at 391. 7 Plaintiff’s complaint alleges that a ConMed employee committed a constitutional 8 violation, and the moving force behind the violation was a Kitsap County policy of providing 9 medical care through a flat-rate contact with ConMed, manifesting deliberate indifference to 10 Plaintiff’s constitutional rights to necessary medical services to avoid significant injury. 11 Further, even if ConMed is considered the final policy-maker with respect to medical 12 decisions at the jail, Kitsap County could still be liable for ConMed’s decisions. The County 13 cannot shield itself from § 1983 liability by contracting out its duty to provide medical services. 14 The underlying rationale is not based on respondent superior, but rather on the fact that the 15 private company's policy becomes that of the County if the County delegates final decision16 making authority to it. Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705–06 (11th Cir. 17 1985). 18 CONCLUSION 19 At this early stage of the proceedings, accepting Plaintiff's allegations as true, and giving 20 the Plaintiff the benefit of all legitimate inferences from the complaint, Plaintiff sufficiently 21 alleges a claim against Kitsap County of deliberate indifference to serious medical needs. 22 23 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 7 1 Therefore, it is hereby ORDERED: 2 Defendant Kitsap County’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(c) (Dkt. 25 3 & Dkt. 26-1) is DENIED. 4 Dated this 20th day of May, 2013. 5 6 7 A ROBERT J. BRYAN United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING DEFENDANT KITSAP COUNTY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P 12(C)- 8
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