United States District Court, N.D. California
January 27, 2004.
VICKI HENRY, et al, Plaintiff,
COUNTY OF SAN MATEO, et al, Defendants
The opinion of the court was delivered by: CHARLES BREYER, District Judge
MEMORANDUM AND ORDER
This civil rights lawsuit arises out of the suicide of Will Henry, a
ward of the San Mateo County juvenile court. Now before the Court are
defendants' motions for summary judgment. The primary issue is whether
defendants were deliberately indifferent to Will's medical needs. After
carefully considering the papers filed by the parties, and having had the
benefit of oral argument, defendants' motions for summary judgment are
GRANTED as to all claims against Luke Moix, M.D., and as to the federal
claims against the Daytop Village defendants.
Will Henry, age 15, was adjudged a ward of the San Mateo County
juvenile court pursuant to California Welfare and Institutions Code
Section 602. On April 19, 2000, Will was placed in McAuley
Neuro-psychiatric Institute ("St. Mary's"). Approximately five days
later, Dr. Moix discharged Will to juvenile hall.
For three weeks Will stayed at Hillcrest, juvenile hall, awaiting
admission to Daytop Village. Daytop Village ran a facility which provided
substance abuse treatment in a setting which provides no level of
security for minors who are wards of the San Mateo County Superior Court.
Will was finally admitted to Daytop Village on May 22, 2001. A few weeks
later Will walked out of Daytop and killed himself. This lawsuit
Plaintiffs, the parents and sole heirs of Will, subsequently filed this
lawsuit in federal court against several defendants including St. Mary's
Hospital, Dr. Moix, two San Mateo probation officers, Daytop Village, and
various Daytop Village employees. They made claims for a violation of
section 1983 based on deliberate indifference to a serious medical need,
and conspiracy to violate section 1983, as well as state law claims for
medical malpractice and negligence. Plaintiffs also alleged that the
County of San Mateo and St. Mary's had a policy of deliberate
indifference to County patients. Plaintiffs subsequently amended the
complaint to add Eli Lilly, the manufacturer of Prozac, as a defendant.
Eli Lilly later settled with plaintiffs.
After three rounds of motions to dismiss the following claims remain:
(1) Dr. Luke Moix: medical negligence, wrongful death and survivorship,
and 42 U.S.C. § 1983; (2) St. Mary's Medical Center: medical
negligence, wrongful death and survivorship, and 42 U.S.C. § 1983;
(3) Daytop Village defendants: medical negligence, wrongful death and
survivorship, and 42 U.S.C. § 1983; and (4) San Mateo County:
derivative liability for Daytop Village's negligence.
All remaining defendants now move for summary judgment on all claims,
state and federal.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find for
the nonmoving party, and a dispute is "material" only if it could affect
the outcome of the suit under governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the
summary judgment procedure "is to isolate and dispose of factually
unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). "Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no
`genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986).
"In considering a motion for summary judgment, the court may not weigh
the evidence or make credibility determinations, and is required to draw
all reasonable inferences in a light most favorable to the non-moving
party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).
However, an inference may be drawn in favor of the non-moving party only
if the inference is "rational" or "reasonable" under the governing
substantive law. See Matsushita, 477 U.S. at 588.
Moreover, in determining whether to grant or deny summary judgment, it is
not a court's task "to scour the record in search of a genuine issue of
triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th
Cir.1996) (internal quotations omitted). Rather, a court is entitled to
rely on the nonmoving party to identify with reasonable particularity the
evidence that precludes summary judgment. See id.
I. DR. LUKE MOIX
A. Undisputed Facts
On April 18, 2000, Will's mother, Vicky Henry, called Will's probation
officer, Kim Minelli, to have Will taken into custody because she did not
want him in her home. That same day the County of San Mateo ("the
County") took Will into custody for a probation violation. While Will was
being booked into juvenile hall, he informed the booking officer that he
was suicidal. The County transferred Will to the San Mateo County
Hospital on a California Welfare and Institutions Code section 5150
72-hour detainment. Hospital staff diagnosed Will with adjustment
disorder, depression and polysubstance abuse.
The next day Will was transferred to the McAuley Neuropsychiatric
Institute at St. Mary's Hospital on a Welfare and Institutions Code
section 5150 hold. Dr. Moix first evaluated Will on April 20. He admitted
Will on a 5150 hold in order to evaluate him for a major depressive
disorder, adjustment disorder with disturbance of mood, and underlying
polysubstance abuse. On April 21, Dr. Moix certified Will for further
treatment under section 5250 as a danger to himself.
Dr. Moix and McAuley staff saw and assessed Will on a daily basis while
he was at McAuley. He was placed on suicide precautions and was checked
every 15 minutes during all shifts.
On April 24, Dr. Moix discussed Will returning to juvenile hall. Will
expressed anxiety about returning. That same day Dr. Moix started Will on
the anti-depressant Prozac at a dose of 10 mg per day.
Dr. Moix again evaluated Will on April 25. Will again reported being
anxious about returning to juvenile hall. Dr. Moix increased Will's
dosage to 20 mg per day. That same day nursing staff reported that Will
was distraught about having to enter drug and alcohol rehabilitation.
Dr. Moix again discussed Will's return to juvenile hall with Will on
April 26. Will again expressed anxiety about the discharge and asked not
to leave McAuley. Dr. Moix agreed to delay discharge a few days.
On April 27, Will stated that he loved it at McAuley and that he might
try to hurt himself if discharged. The nurse who reported the comments
interpreted them as a manipulative ploy by Will to stay at McAuley. Will
told Dr. Moix that same day that he could not be sure that he would be
safe if discharged. Because juvenile hall did not have mental health
staff available over the weekend, Dr. Moix delayed Will's discharge until
Monday, May 1.
The next day Will repeated that he was anxious about returning to
juvenile hall. Dr. Moix documented that juvenile hall was aware of Will's
condition and that Will would receive further observation there.
Over the weekend Will was evaluated by the psychiatrist covering
for Dr. Moix.
Dr. Moix reassessed Will on May 1 and discharged him to juvenile hall.
He discharged Will with a prescription for Prozac 20 mg once daily and a
recommendation for structured drug and alcohol treatment, individual
therapy and psychiatric follow-up, and monitoring for suicidal ideation.
Will committed suicide almost seven weeks later after he walked out of
1. Section 1983 claim
Dr. Moix moves for summary judgment on the ground that no reasonable
jury could find that the above facts amount to a constitutional
deprivation, namely, deliberate indifference to medical needs, and also
no reasonable jury could find that Dr. Moix was a state actor and
therefore subject to section 1983.
a. State actor
In determining whether a physician providing care to a ward of the
state is a state actor, the courts apply a nexus approach. There must be
a sufficiently close nexus between the state and the private actor "so
that the action of the latter may be fairly treated as that of the state
itself." Jensen v. Lane County, 222 F.3d 570, 575 (9th Cir.
2000). The "`State [must be] so far insinuated into a position of
interdependence with the [private party] that it was a joint participant
in the enterprise."' Id. (quoting Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 357-58(1974).
The undisputed evidence establishes as a matter of law that Dr. Moix
was not a state actor. "Detailed regulation of and substantial funding
for private actors are not sufficient to transform [a] party's conduct
into state action." Id. Here, there is not even any evidence of
such regulation or funding. McAuley Institute is a private hospital and
Will's private insurer-not the County-paid Will's medical bills. In fact,
Dr. Moix was not even an employee of McAuley Institute, but rather was an
attending physician with admitting privileges at McAuley; he accepted
Will as a private patient with private insurance. There is also no
evidence that the County played any role in Dr. Moix's treatment
decisions, and, in
particular, his decision to discharge Will.
The only evidence that supports a finding of Dr. Moix being a state
actor is that Will was in state "custody." Plaintiff does not cite any
case law, and the Court is aware of none, which supports a finding of a
physician as a state actor simply because the physician treated a patient
in state custody. As Dr. Moix was not a state actor, summary judgment
must be granted on plaintiffs' section 1983 claim.
b. Deliberate indifference
Plaintiffs' section 1983 claim fails for a second reason: no reasonable
jury could find that Dr. Moix was deliberately indifferent to Will's
medical needs. To prove that Dr. Moix violated Will's constitutional
rights (assuming he was a state actor), plaintiffs must show that Dr.
Moix knew of a substantial risk of serious harm to Will's health and
disregarded the risk by failing to take reasonable measures to abate the
risk. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). There
must be a purposeful act or failure to act on the part of the defendant
and resulting harm. See McGuckin v. Smith, 974 F.2d 1050, 1060
(9th Cir. 1992), overruled on other grounds, WMX Tech. Inc. v.
Miller, 104 F.3d 1133 (9th Cir. 1997); Shapley v. Nevada Bd. of
State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
Dr. Moix evaluated Will every day. He delayed Will's discharge to
juvenile hall to a day when there would be mental health officials
available. He started Will on Prozac. He gave instructions to the
officials at juvenile hall. In Dr. Moix's medical judgment, Will no
longer required hospitalization. Will's parents did not see any problem
with Will's discharge, and while Will stated he did not want to be
discharged, Dr. Moix reasonably believed that Will simply did not want to
go into drug and alcohol rehabilitation. Under these circumstances, no
reasonable jury could find that Dr. Moix was deliberately indifferent to
Will's medical needs.
Plaintiffs rely exclusively on the declaration of Dr. Edward Hyman, a
psychologist, to support their claim against Dr. Moix. Dr. Hyman opines
that Dr. Moix's care was "below the standard of care" for several
First, Dr. Hyman contends that Dr. Moix should have given Will a
battery of tests
when Will was first admitted to McAuley. "Such a failure to assess
the patient properly fell short of the standard of care, and ultimately
caused Will Henry's death because it led to his unreasonably early
discharge, resulted in early termination medical treatment and led to
improper recommendations and placement of Will." Second, he contends that
Dr. Moix's prescribing Prozac for Will was below the standard of care.
Third, he opines that Dr. Moix should have kept Will at McAuley, or at
least ensured that Will would be placed in a secure facility.
Dr. Hyman's declaration does not create a genuine dispute as to whether
Dr. Moix was deliberately indifferent. Dr. Hyman does not even claim that
Dr. Moix was deliberately indifferent, that is, that Dr. Moix knew of a
risk to Will's health and failed to take steps to abate that risk;
rather, Dr. Hyman merely opines about a difference in opinion as to how
Will should have been treated, that is, a breach of the standard of care.
Mere malpractice, or even gross negligence, will not suffice to establish
deliberate indifference. See Lopez v. Smith, 203 F.3d 1122,
1131 (9th Cir. 2000): see also Jackson v. Mclntosh,
90 F.3d 330. 332 (9th Cir. 1996) (stating that a difference of opinion
regarding proper medical treatment is not deliberate indifference). For
this reason, too, Dr. Moix is entitled to summary judgment on plaintiffs'
section 1983 claim.
2. State law claims
Will killed himself seven weeks after Dr. Moix discharged Will from
McCauley. Dr. Moix argues that no reasonable jury could find for
plaintiffs on their state law negligence claims because the evidence is
insufficient to show, among other things, that Dr. Moix caused Will's
death. Dr. Moix supports his motion with the declaration of Dr. Elliot,
an adolescent psychiatrist. Plaintiffs again rely exclusively on the
declaration of Dr. Hyman to create a genuine dispute. The declaration
falls far short.
Dr. Hyman concludes that Dr. Moix's prescribing Prozac for Will caused
Will's "psychological deterioration and ultimate death," but he offers no
basis for his conclusion. See Kennedy v. Collagen Corp.,
161 F.3d 1226, 1227 (9th Cir. 1998) (stating that a district judge may reject
expert testimony where the "analytical gap" between the data and the
expert's conclusion is too great). This omission is fatal to
plaintiffs' claim, especially given that during the seven week interval
between Dr. Moix's discharge of Will and Will's suicide Will was treated
by other physicians and mental health professionals. See Farwell v.
Un, 902 F.2d 282 (4th Cir. 1990) (defendant physician's negligence
did not cause patient's suicide where patient committed suicide ten days
after last seeing defendant and after being seen by another physician).
Moreover, the record does not indicate that Dr. Hyman is even qualified
to give an opinion on whether prescribing Prozac was a breach of the
standard of care and whether Prozac contributed to Will's death. Dr.
Hyman is a psychologist, not a medical doctor. He cannot and never has
prescribed any medications, including Prozac. He does not work, and
apparently has never worked, in an inpatient psychiatric facility. He
does not explain how he is qualified to testify that Dr. Moix's
prescribing Prozac was a breach of the standard of care for psychiatrists
in an in-patient facility.
Under California law, "medical personnel are held in both diagnosis and
treatment to the degree of knowledge and skill ordinarily possessed and
exercised by members of their profession in similar circumstances."
Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988).
"This standard of care, which is the basic issue in malpractice actions,
can be proven only by expert testimony." Id. "When a defendant
moves for summary judgment and supports his motion with expert
declarations that his conduct fell within the community standard of care,
he is entitled to summary judgment unless the plaintiff comes forward
with conflicting expert testimony." Id. Since Dr. Hyman is not
qualified to testify as to the standard of care for psychiatrists,
plaintiff has essentially not offered any expert testimony that conflicts
with Dr. Moix's expert evidence that Dr. Moix's conduct was in accordance
with the standard of care for psychiatrists in the community.
Dr. Hyman also opines that Dr. Moix "endorsed the placement of Will
Henry" at Daytop Village and that Dr. Moix should have ensured that Will
was placed at a more secure facility or that he should have kept him at
McAuley. He concludes that Dr. Moix's failure to
keep Will at McAuley or place him in a secure facility caused
Will's "psychological deterioration and ultimate death." Dr. Hyman's
declaration does not create a genuine dispute as to whether Dr. Moix's
negligence caused Will's death. First, there is no evidence that Dr. Moix
endorsed Will's placement at Daytop. Second, and more importantly, Dr.
Hyman offers no basis for his conclusion that Dr. Moix's discharge of
Will caused his suicide seven weeks later. See Kennedy, 161
F.3d at 1227. Third, as with the Prozac prescription, Dr. Hyman does not
explain how he is qualified to testify as to the standard of care for
psychiatrists in in-patients hospitals.
Finally, Dr. Hyman also concludes that Dr. Moix's failure to run a
battery of tests on Will was a breach of the standard of care and caused
Will's death. As with his other theories, Dr. Hyman offers no basis for
his opinion that Dr. Moix's failure to run certain tests caused Will's
suicide seven weeks later.
In sum, no reasonable jury could find Dr. Moix responsible for Will's
suicide seven weeks after Dr. Moix last saw him. Accordingly, Dr. Moix is
entitled to summary judgment on plaintiffs' state law claims.
II. St. Mary's
Plaintiffs concede that their section 1983 claim against St. Mary's
fails because no reasonable jury could find that St. Mary's had a policy
of discharging patients prematurely to save the County money.
Plaintiffs' negligence claim against St. Mary's is premised on their
negligence claim against Dr. Moix. As no rational jury could find that
Dr. Moix negligently caused Will's death, no rational jury could find St.
Mary's liable. Summary judgment in favor of St. Mary's on all claims must
III. Daytop Village defendants
A. Undisputed facts
When Will was returned to juvenile hall upon his discharge from
probation officer requested permission from the court to admit Will
to Daytop Village, a residential drug and alcohol treatment program.
After approximately three weeks Will was admitted to Daytop. Will was
assigned to intern Carmen Goodin under supervision of Dr. Jaimez and Rose
Dito. Goodin and Dito were aware of Will's history of depression and
substance abuse. Goodin assessed Will for risk of suicide three times
between his admission to Daytop and when he escaped on June 18.
On or about June 1, Dr. Mordecai evaluated Will. Will reported some
improvement with Prozac. Dr. Mordecai concluded that Will was suffering
from major depression and substance abuse and increased Will's Prozac
doseage. He also concluded that Will was a good candidate for Daytop's
drug treatment program. Dr. Mordecai's report of his evaluation of Will
recommended follow-up in two weeks on Will's response to the increased
Prozac prescription. On June 13, Will was tested by Dr. Jaimez, a
licensed psychologist. Dr. Jaimez was concerned about Will's elevated
scores for depression, and accordingly, she met with him personally on
June 16 to assess Will for suicide risk. Will denied any intent to commit
suicide and agreed not to harm himself.
Two nights after Dr. Jaimez met with Will, Will sneaked out of Daytop's
facility. He returned to Pacifica and stayed the night with a friend. The
next morning the friend's mother dropped Will off at the home of another
friend. Some four hours later Will was discovered, a suicide by hanging.
1. Section 1983 claim
The Daytop defendants do not dispute that they can be considered state
actors; instead, they argue the evidence is insufficient for a reasonable
jury to find that any of them was deliberately indifferent to Will's
medical needs. Again, the outcome of this motion turns on the declaration
of Dr. Hyman, plaintiffs' expert psychologist.
Dr. Hyman opines that given Will's history he should have been given a
battery of psychological tests upon Will's admission to Daytop; instead,
he received only some those
tests three weeks after his admission (but several days before he
escaped). Dr. Hyman also opines that Daytop officials misinterpreted the
results of those tests and should have ordered Will hospitalized
immediately. Finally, Dr. Hyman again opines that Will's Prozac
prescription should not have been increased.
Even if everything Dr. Hyman says is true, plaintiffs have not
demonstrated deliberate indifference. There is no evidence that
defendants believed that what they were doing (or not doing) was not in
Will's best interest. There is no evidence, for example, that any of the
defendants thought Will posed an actual suicide threat but did nothing
about it. Instead, the undisputed evidence establishes that defendants
believed that Will was being adequately supervised and was not an actual
Vicky Henry claims that after Will died, Goodin told her that several
days before Will killed himself Will told Goodin that he had a plan to
steal money from his mom's purse and kill himself. Goodin denies the
story. Even if true, however, Will was examined for suicide risk by both
Goodin and Dr. Jaimez after he allegedly made that statement. Both
concluded that Will was not an active suicide risk. Their conclusions may
have been erroneous, but plaintiffs have not pointed to any facts that
would support a finding of deliberate indifference, that is, evidence
that defendants ignored an obvious risk. See Lopez v. Smith.
203 F.3d 1122, 1131 (9th Cir. 2000). Accordingly, summary judgment in
favor of the Daytop defendants must be granted on plaintiffs' section
2. State law claims
At defendants' request, the Court declines to exercise supplemental
jurisdiction of plaintiffs' state law claims against the Daytop
defendants. See Acri v. Varian Associates, Inc., 114 F.3d 999,
1001 (9th Cir. 1997) (en banc). Accordingly, plaintiffs' state law claims
against the Daytop defendants will be dismissed without prejudice.
For the foregoing reasons, Dr. Moix's motion for summary judgment is
GRANTED in its entirety, St. Mary's motion for summary judgment is
GRANTED in its entirety, and the
Daytop defendants' motion for summary judgment on the section 1983
claim is GRANTED. The state law claims against the Daytop defendants are
dismissed without prejudice.
IT IS SO ORDERED.
The Court having granted summary judgment in favor of the County
defendants on all claims except the County's vicarious liability for the
Daytop defendants' negligence, having granted summary judgment in favor
of Dr. Moix on all claims, having granted summary judgment in favor of
the Datyop defendants on the federal claims, and having dismissed the
remaining state law claims without prejudice, it is hereby ordered that
judgment be entered in favor of defendants and against plaintiffs.
IT IS SO ORDERED.
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