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

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
Shannon Michael Clark, Plaintiff -vsValueOptions, Inc., et al., Defendant(s) CV-03-1344-PHX-EHC (MS) ORDER

Under consideration are Defendant ValueOptions Motion for Summary Judgment, filed October 13, 2004 (#57) and Plaintiff's Cross Motion for Summary Judgment, filed December 16, 2004 (#78). BACKGROUND Plaintiff commenced this action on July 15, 2003 by filing his original Complaint (#1). Plaintiff's Second Amended Complaint (#53) was filed September 24, 2004, and on October 15, 2004, Count IV was dismissed (Order, #59). Plaintiff's complaint arises out of his evaluation for mental health services while a prisoner of the Arizona Department of Corrections. Liberally construing the complaint, Plaintiff asserts the following claims: 1. Count I alleges that Defendant Marshall, an employee of Defendant ValueOptions, Inc., was deliberately indifferent to Plaintiff's mental health needs in preparing documents for Plaintiff to receive mental health services following his release from prison. (2nd Am. Compl, #53 at 4.) 2. Count II alleges that Defendant Crumbley, a physician employee of Defendant ValueOptions, Inc., was deliberately indifferent to Plaintiff's mental health needs in determining that Plaintiff did not meet the criteria for receiving mental health services following his release from prison. (Id. at 5.)

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3.

Count III alleges that the conduct of Defendants Crumbley and Marshall constitutes medical malpractice under Ariz. Rev. Stat. § 12-561. (Id. at 6.)

4. 5.

Count IV was dismissed on screening. (Order 9/24/04, #59.) Count V alleges that Defendant Value Options was deliberately indifferent to Plaintiff's mental health needs by failing to stop Defendants Marshall and Crumbley's deliberately indifferent conduct, despite having knowledge of such actions. (2nd Am. Compl, #53 at 5.)

Defendant Value Options, Inc. filed an Answer (#56) to the Complaint on October 12, 2004. Service on Defendants Marshall and Crumbley was returned executed on November 22, 2004 (#69 & 70). However, Magistrate Judge Sitver found the service improper because it was delivered to ValueOptions' statutory agent, and Defendants Marshall and Crumbley are no longer employed by ValueOptions. (Order 12/10/04, #73.) Consequently, service was again attempted on both Defendants. Service on Defendant Marshall was returned

unexecuted on March 23, 2005 (#95). Service on Defendant Crumbley was returned unexecuted on April 4, 2005 (#103). MOTIONS FOR SUMMARY JUDGMENT Defendant's Motion - On October 13, 2004, Defendant ValueOptions filed the instant Motion for Summary Judgment (#57), arguing that (1) Plaintiff cannot establish his claim of deliberate indifference because he cannot show the requisite mental state of the Defendants; (2) the Court's jurisdiction over the state law malpractice claim will be lost upon dismissal of the federal claim; and (3) because ValueOptions has vicarious liability for Defendants Marshall and Crumbley, any summary judgment should operate in their favor as well. Consequently, Defendants seek a dismissal of the action in its entirety. Plaintiff has responded, arguing that Defendants Marshall and Crumbley knew or reasonably should have known that their deficient conduct would result in significant harm to Plaintiff, and therefore they were deliberately indifferent. (Response, #62.) Defendants reply that Plaintiff's factual assertions are not sufficient to meet his burden of showing a genuine issue of fact sufficient to go to trial, particularly in light of the
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Defendant's expert's opinion that the conduct of Defendants Marshall and Crumbley was reasonable. (Reply, #71.) On December 30, 2004, Plaintiff filed a "Motion for Order" (#82), which Magistrate Judge Sitver directed be treated as a surreply to the Defendant's motion for summary judgment. (Order 1/13/05, #85.) Plaintiff's surreply argues that Defendants wrongly rely on Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997) to establish their entitlement to summary judgment, because they do not provide the same supporting evidence as did the defendants in Dulany, such as an affidavit of a treating physician, policies, medical records, etc. Plaintiff further objects to Defendants citation to case law to which Plaintiff has no access. Plaintiff's Cross Motion - On December 16, 2004, Plaintiff filed a Cross-Motion for Summary Judgment (#78) and Statement of Facts (#79).1 Plaintiff's motion asserts that the undisputed facts in the case establish his claims of deliberate indifference. Defendant responds that Plaintiff has offered no admissible evidence that the assessment of Plaintiff's mental condition were not adequate. (Response, #99.) Defendant's Statement of Facts (#100) opposes much of Plaintiff's statement of facts as unsupported or conjectural. Plaintiff replies that Defendant's support for their claim (that the evaluation was adequate) is limited to their expert's assessment, and that the expert's affidavit is conclusory and insufficient to establish the adequacy of the assessment. Plaintiff further argues that in light of the Court's denial of his request for an expert, it would be inappropriate to deny him summary judgment based on his lack of expert testimony. (Reply, #107) STANDARDS FOR SUMMARY JUDGMENT A court must grant summary judgment if the pleadings and supporting documents viewed in the light most favorable to the non-moving party "show that there is no genuine

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Plaintiff's Cross Motion for Summary Judgment was stricken as untimely. (See Order 12/28/04, #81.) Plaintiff subsequently sought leave to file the motion late, which was granted. As a result the Cross Motion was reinstated. (See Order 3/3/05, #91.) The Plaintiff's Statement of Facts, #79, is also deemed reinstated.

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issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Materiality - "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). Genuine Dispute - A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial . . . there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson at 249. Burden of Proof - "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). Accordingly, Defendant, as moving party in its motion for summary judgment, has no obligation to negate Plaintiff's claims. Rather, summary judgment must be granted to Defendant if Plaintiff "fails to make a showing sufficient to establish the existence of an element essential to [Plaintiff's] case, and on which [Plaintiff] will bear the burden of proof at trial." Celotex, 477 U.S. at 322-323. Nature of Proof Required - The nonmoving party need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Celotex,477 U.S. at 324. However, "Rule 56(e)...requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. Local Rule 1.10(l)(1) that "[a]s to each fact, the statement [of facts] shall refer to a specific portion
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of the record where the fact may be found (i.e., affidavit, deposition, etc.)." "A verified complaint may be used as an opposing affidavit under Rule 56. To function as an opposing affidavit, however, the verified complaint must be based on personal knowledge and set forth specific facts admissible in evidence." Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (citations omitted). Here, Plaintiff's Complaint is verified. (#53 at 7 ("I declare under penalty of perjury that the foregoing is true and correct").) Accordingly, the Court will consider it as an opposing affidavit. Further, to be admissible in the context of a motion for summary judgment, documents must be authenticated either through depositions or answers to interrogatories, or by being authenticated by and attached to an affidavit, in which case the affiant must be a person through whom the exhibits could be admitted into evidence. U.S. v. Dibble, 429 F.2d 598 (9th Cir. 1970); Wright & Miller, Fed. Prac. & Proc. § 2722; Fed. R. Civ. P. 56(e) (authorizing consideration of "papers or parts thereof referred to in an affidavit"). Plaintiff has submitted various documents with his briefs which, although apparently received in response to requests for production, are not authenticated. To the extent that Plaintiff's statements of facts are derived from and dependent upon such documents, those statements of fact cannot be considered herein. MATERIAL FACTS Undisputed Facts - Plaintiff has a history of mental illness, including suicide attempts, self-mutilation, severe mood swings and irrational behavior, dating back more than 16 years, and was being treated with psychiatric medications. (2nd Amend. Compl., #53 at 4; Response, #62, Exh. 4, P's Affid. ¶ 4-5) Plaintiff had prior to 1995, utilized illegal street drugs. (Response, #62, Exh. 4, P's Affid. ¶ 6.) In August 2002, Plaintiff was incarcerated by the Arizona Department of Corrections in Florence, Arizona. (DSOF ¶ 5.) In preparation for Plaintiff's release, Defendant ValueOptions, Inc. was requested by ADOC to conduct a mental health evaluation on Plaintiff. (Id.) ValueOptions contracts with the Arizona

Department of Health Services to arrange for the delivery of state-created behavioral health services, and is the "Regional Behavioral Health Authority" for Maricopa County, Arizona.
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(Motion to Strike, #93, Exhibit, D's Ans. to Interr. No. 29.) Defendant Marshall, an employee of ValueOptions, conducted an "Adult Intake Assessment" of Plaintiff on August 22, 2002. (DSOF ¶ 5; 2nd Amend. Compl., #53 at 4; Response, #62, Exh. 4, P's Affid. ¶ 3.) Information that may be utilized in conducting such an assessment includes information obtained from the consumer/patient, the guardian, a family member, agency records, etc.2 (D Controverting SOF, #100 at 1.) Defendant Thomas Crumbly, M.D. was employed by ValueOptions as a psychiatrist. On August 30, 2002, Defendant Crumbly reviewed Defendant Marshall's Assessment and determined that Plaintiff did not qualify for the Seriously Mentally Ill ("SMI") program. (DSOF ¶ 6.) The SMI Program provides for case management, housing support, crisis intervention, psychiatric residential treatment, behavioral health programs and prevention services. (2nd Amend. Compl., #53 at 4.) Plaintiff was, however, referred for treatment in an outpatient alcohol and substance abuse treatment program. (Motion to Strike, #93, Exhibit, D's Ans. to Interr. No. 29.) Defendant Crumbly's assessment was based solely on Defendant Marshall's Assessment. (2nd Amend. Compl., #53 at 5.) Defendant Crumbly did not consult Plaintiff's institutional or medical records, nor did Defendant Crumbly ever personally assess Plaintiff. (Id.) Plaintiff's prison medical records reflect that less than 45 days prior to Plaintiff's evaluation by Defendant Marshall, Plaintiff was having mental health problems, and the impulse to harm himself. (2nd Amend. Compl., #53 at 5; Response, #62, Exhibit 3, RFA No. 4.) On or about September 1, 2002, Plaintiff was released from prison. (D's Ans. to Interr.
Neither party offers any support from the record to establish what sources of information were used by Defendant Marshall. Plaintiff argues that she failed to review his prison medical records, but provides no support from the record to establish that fact. (Resp., #62 at 3.) Plainitff's SOF in support of Cross Motion for Summary Judgment does reference "Defendant ValueOptions Admission, Dkt 61, Exhibit 3" as supporting the contention that Marshall did not review Plaintiff's records. (#79 at ¶ 10.) However, Docket 61 is a Notice filed by Defendants concerning service on Defendants Marshall and Crumbly. If Plaintiff refers to the Admissions attached as Exhibit 3 to his Response, #62, those admissions do not reflect what records were reviewed by Defendant Marshall. Defendant asserts that the Plaintiff's contention is unsupported and ignores the possibility that Defendant Marshall reviewed Plaintiff's records at ADOC. However, Defendant offers no support for this contention. (D Controverting SOF, #100 at 2.) Although the parties dispute this fact, the lack of support from the record to support any position precludes the Court from considering either version.
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No. 29; DSOF ¶ 7; 2nd Amend. Compl., #53 at 4.) Plaintiff continued his psychiatric medications until ten days after his release, when his medications ran out. (2nd Amend. Compl., #53 at 4a.) On or about September 8, 2002, Plaintiff contacted an office of ValueOptions, seeking a refill on his medications. Plaintiff made an appointment for a day or two later. In the meantime, his symptoms escalated and he began "self-medicating" with illegal drugs. (2nd Amend. Compl., #53 at 4a.) Plaintiff failed to attend any outpatient treatment program, continued his illegal drug use and was arrested on or about November 15, 2002 and prosecuted on two burglary charges. Plaintiff committed the burglaries in order to support his drug habit. (Id.; D's Ans. to Interr. No. 29; DSOF ¶ 7; Motion to Strike, #93, Exhibit, D's Ans. to Interr. No. 29.) Dr. Robert Walters, Ph.D. was retained by Defendants, and reviewed the records concerning Plaintiff. Dr. Walters is familiar with the requirements for a person to receive SMI services through ValueOptions, and opines that the determination that Plaintiff was ineligible was an appropriate decision. (DSOF ¶ 10-12.) APPLICATION OF LAW TO FACTS Defendant ValueOptions concludes that Plaintiff bases his claims upon ValueOptions' vicarious liability for Defendants Marshall and Crumbly's conduct in violation of Plaintiff's civil rights.3 If that were the case, Plaintiff's claim would fail. "In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The preclusion of vicarious liability under § 1983 was developed in relation to municipal corporations in Monell v. Department of Social Services, 436 U.S. 658 (1978), and has been extended by other Circuits to private corporations. See e.g. Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-728 (4th Cir. 1999) ("We have recognized, as has the Second

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While there may be vicarious liability of an employer pursuant to Arizona's medical malpractice laws, Plaintiff has not asserted a claim for such liability against Defendant ValueOptions. Further, while Plaintiff's § 1983 claims against ValueOptions are dependent upon a showing that the employee defendants acted improperly, as discussed herein below, that alone is insufficient to establish liability for ValueOptions.

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Circuit, that the principles of § 1983 municipal liability articulated in Monell and its progeny apply equally to a private corporation that employs special police officers."); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (listing jurisdictions extending Monell's limitation on respondeat superior to private corporations). But see Traver v. Meshriy, 627 F.2d 934, 939 (9th Cir. 1980) ("Monell dealt with the liability of municipal, not private corporations. The scope of corporate liability under section 1983 is still not at all clear.") Although the Ninth Circuit has yet to provide a detailed analysis of the issue, they have applied the Monell limitation to private corporations. See Bibeau v. Pacific Northwest Research Foundation Inc., 188 F.3d 1105, 1114 (9th Cir. 1999), modified on other grounds 208 F.3d 831 (9th Cir. 2000). Thus, Defendant ValueOptions is in error when it asserts that it is vicariously liable for Defendants Marshal and Crumbly's conduct. (See Motion, #57 at 1, n.1.) Further, the sole Count of the Second Amended Complaint which makes allegations against Defendant ValueOptions is Count V. That Count alleges that Defendant

ValueOptions was itself deliberately indifferent "by having prior knowledge" of Defendants Marshall and Crumbly's conduct "and failing to stop said actions from continuing to occur." (Second Amend. Complaint, #53 at 5.) However, Plaintiff offers nothing beyond his conclusory allegation to show such prior knowledge. (See e.g. Reply, #107 at 1-2 ("Plaintiff asserts Defendant Value Options, Inc. had prior knowledge of the same and or similar actions or reasonably should have."); P'sSOF, #79 at ¶ 22 ("ValueOptions has condoned, authorized and adopted this practice of medical deliberate indifference.".) He expressly raises the issue in his Response (#62 at 1 ("whether Defendant ValueOptions had prior knowledge")), but makes no statement and offers no evidence answering the question. Moreover, the Supreme Court has consistently "required a plaintiff seeking to impose liability on a municipality under § 1983 to identify" not just knowledge, but "a municipal `policy' or `custom' that caused the plaintiff's injury." Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997). Plaintiff offers nothing to show such a policy or custom.
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While ordinarily, this Court would find Plaintiff's failure to provide such evidence a basis for granting summary judgment in Defendant's behalf, Defendant's misstatement on its vicarious liability was misleading, and arguably enticed Plaintiff to ignore his obligation to establish direct liability on the part of Defendant. Accordingly, the Court will not grant summary judgment for or against Plaintiff on his § 1983 claims. State Law and Other Claims - Defendant also seeks summary judgment on the claims against Defendants Marshall and Crumbley. Rule 56(b) only authorizes a defending party to see judgment "in the party's favor." Plaintiff's state law and other claims, other than Count V, are not asserted against Defendant ValueOptions, and any judgment on those other claims would not be in ValueOptions' favor. Accordingly, the Court will deny both Defendant's and Plaintiff's motions, with leave to file a subsequent motion. IT IS THEREFORE ORDERED that Defendant ValueOptions' Motion for Summary Judgment, filed October 13, 2004 (#57) is DENIED. IT IS FURTHER ORDERED that Plaintiff's Cross Motion for Summary Judgment, filed December 16, 2004 (#78) is DENIED. IT IS FURTHER ORDERED that the parties shall have twenty days from the filing of this Order to file dispositive motions in light of this Order.

DATED this 1st day of August, 2005.

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