Free Motion for Summary Judgment - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 SHANNON MICHAEL CLARK, 9 Plaintiff, 10 v. 11 VALUEOPTIONS, INC., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 By: 23 24 25 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Defendant ValueOptions, Inc. ("ValueOptions"), through its counsel and pursuant to Rule 56, Fed.R.Civ.P., hereby files its second motion for summary judgment. Plaintiff's claim for medical deliberate indifference under the Eight Amendment fails as a matter of law against ValueOptions. This motion is supported by the pleadings on file, the following memorandum of points and authorities and the accompanying statement of facts. DATED this 2nd day of September, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. SECOND MOTION FOR SUMMARY JUDGMENT Case No. CIV 03-1344-PHX-EHC (MS)

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 Count V of the First Amended Complaint ("FAC") alleges that ValueOptions "was 4 deliberately indifferent of plaintiff's serious medical needs having prior knowledge of 5 actions and inactions described in Counts I and II and failing to stop said actions from 6 continuing to occur". (Statement of Facts in Support of Second Motion for Summary 7 Judgment ("SOF") 3.) Plaintiff makes no allegation of a ValueOptions' policy or custom 8 that caused his injury. (SOF 4.) There is no claim of deliberate conduct of ValueOptions 9 intentionally causing a depravation of federal rights. (SOF 5.) Plaintiff also makes no 10 claim that a policy or custom of ValueOptions was a moving force behind the alleged 11 injury. (SOF 6.) Finally, ValueOptions employees Karen Marshall and Thomas Crumbley, 12 M.D., provided the necessary assessment of Plaintiff's condition and made the appropriate 13 decision that Plaintiff was not eligible for SMI services on August 30, 2002. (SOF 7). 14 II. 15 Principles of § 1983 municipal liability apply equally to private corporations. Austin 16 17 18 19 solely because it employs a tortfeasor. Board of the County Commissioners of Brian 20 County Oklahoma v. Brown, 520 U.S. 397 (1997). It is undisputed that ValueOptions is a 21 private corporation that contracts with the Arizona Department of Health Services to 22 arrange for the delivery of state created behavioral health services for Maricopa County. 23 As such, ValueOptions cannot be held liable under § 1983 simply because the actions of 24 its employees may constitute a tort. 25 "In order for a person acting under color of State law to be liable under § 1983 there 26 must be a showing of personal participation in the alleged rights depravation: there is no 27 28 2 v. Paramount Parks, Inc., 195 F.3d 715, 727-728 (4 th Cir. 1999); Bibeau v. Pacific Northwest Research Foundation, Inc., 188 F.3d 1105, 1114 (9 th Cir. 1999), modified on the grounds 308 F.3d 831 (9 th Cir. 2000). A municipality may not be held liable under § 1983 Argument Factual Statement

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respondeat superior liability under section 1983." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). `Congress did not intend to impose liability on a municipality unless deliberate action attributable to the municipality itself is the "moving force" behind the Plaintiff's depravation of Federal rights.' Board of the County Commissioners of Brian County, Oklahoma, 520 U.S. at 400; citing Monell v. New York City Dept. of Social Scrvs., 436 U.S. 658, 694 (1978). The Supreme Court has consistently required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal policy or custom that caused the plaintiff's injury. Id. at 403. Here, Plaintiff not only has no evidence of any acts attributable to ValueOptions, Plaintiff made no such allegations in the amended complaint (SOF, ¶4). Accordingly, ValueOptions is entitled to summary judgment under the first prong of the test established by Board of the County Commissioners of Brian County, Oklahoma. Even if Plaintiff could identify a policy or custom that caused his injury , which he cannot, the plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged. Id. at 404. The plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the depravation of federal rights. Id. Plaintiff can only meet this burden by offering proof that (1) the municipality's legislative body or authorized decision maker has intentionally deprived him of a federally protected right; or (2) by showing that the action taken or directed by a municipality or its authorized decision maker itself violated federal law. Id. at 405. In performing this analysis, the Court is required to apply rigorous standards of culpability and causation to insure that the municipality is not held liable solely for the actions of its employee when plaintiff cannot offer evidence that the municipality has directly inflicted the injury, but nonetheless caused an employee to do so. Id. (citations omitted).

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No such evidence of either circumstance exists. In fact, Plaintiff has identified nothing establishing that ValueOptions intentionally deprived him of a federally protected right, or, that any action taken by ValueOptions or its decision makers violated federal law. Plaintiff offers nothing beyond his conclusory allegations to the contrary. Conclusory allegations do not create questions of fact. Plaintiff's conclusory allegations in a 1983 claim alone failed to create a question of fact satisfying the burden of proof required under Celotex. Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 922 (9 th Cir. 2001) (Plaintiff's statement that she "did not resist arrest in any way" is conclusory allegation insufficient to defeat defense motion for summary judgment). ValueOptions is entitled to summary judgment. IV. Conclusion Plaintiff has not offered, and cannot offer, any admissible evidence of a policy or custom of ValueOptions that caused his injury. Plaintiff also fails to offer evidence of the requisite degree of culpability or the direct causal link between ValueOptions' actions and any depravation of a federal right. Plaintiff's lack of evidence supports entry of summary judgment in favor of ValueOptions. DATED this 2nd day of September, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 21 22 23 24 25 26 27 28 4 ORIGINAL AND ONE COPY of the foregoing electronically filed this 2nd day of September, 2005, with: United States District Court 401 West Washington Phoenix, Arizona 85003

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.

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AND COPY of the foregoing mailed this 2nd day of September, 2005 to: Shannon M. Clark #113372 ASPC-Lewis-Rast Unit P.O. Box 3600 Buckeye, Arizona 85326 Plaintiff pro per /s/ Brad M. Thies

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