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BOYD v. ALAMEDA COUNTY

September 2, 2005.

MARYLON M. BOYD, EXECUTOR OF THE ESTATE OF CAMMERIN BOYD, Plaintiff,
v.
ALAMEDA COUNTY, et al., Defendants.



The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

ORDER RE: SUMMARY JUDGMENT MOTIONS

On July 29, 2005, the Court heard oral argument on plaintiff's motion for summary judgment and motions for summary judgment brought by defendants. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby DENIES plaintiff's motion and GRANTS defendants' motions for the reasons set forth below.

BACKGROUND

  This lawsuit arises from events occurring while decedent Cammerin Boyd ("Boyd" or "decedent") was in the custody of various Alameda County and state correctional institutions between January 27, 2000 and August 26, 2001: San Quentin State Prison, Deuel Vocational Institute for Men ("DVI"), California Institute for Men ("CIM"), Pleasant Valley State Prison ("PVSP"), and Santa Rita County Jail. This action is brought by plaintiff Marylon M. Boyd, decedent's mother, on behalf of the estate of Cammerin Boyd.*fn1 At all relevant times, both of decedent's legs were amputated below the knee. Third Am. Compl. ¶ 6. Plaintiff alleges that, during his incarceration, Boyd was subjected to unsanitary conditions, deprived of adequate medical care, housed in inappropriate accommodations for his disability, and subjected to disparate treatment, excessive force, and other statutory and constitutional violations. Id. at ¶¶ 6-8.

  Decedent filed a complaint with this Court on May 20, 2002, against 41 defendants, alleging discrimination and harassment because of his race (African-American) and disability, conspiracy to deprive him of his civil rights, retaliation against him after he filed grievances and made complaints, and various state law violations. Boyd died on May 5, 2004, under circumstances unrelated to the facts of this case. On May 28, 2004, by letter to the Court and counsel, plaintiff informed the parties of the fact of Boyd's death. The Court vacated all pending dates and set a case management conference, which was set for August 27, 2004, and then continued twice thereafter. On December 14, 2004, plaintiff filed a third amended complaint against various individual and institutional defendants, including: Dr. Terry Croasdale, an independent contractor and physician at Doctors Hospital of Manteca; Doctors Hospital of Manteca ("Doctors Hospital"); Alameda County, Captain Hagan, Technican Dutton, and Deputy Burns (collectively "Alameda County defendants"); Prison Health Services, Inc. ("PHS"); and San Quentin State Prison, Deuel Vocational Institution, Pleasant Valley State Prison, California Institution for Men, and various employees and agents of these entities (collectively "CDC defendants").

  In the Third Amended Complaint, plaintiff brings claims for: (1) a violation of the Americans With Disabilities Act ("ADA"), "Section 504," against all defendants;*fn2 (2) a violation of 42 U.S.C. § 1983; (3) a violation of 42 U.S.C. § 1985 for conspiracy to violate civil rights; (4) negligence and negligent hiring, supervision, and retention against all defendants; (5) assault and battery against individual defendants Gormans, Burns, Blanks, Dutton, Wondaso, Casey and the Doe defendants; (6) intentional infliction of emotional distress against all defendants; (7) a survival action against all defendants; and (8) a violation of Cal. Bus. & Profs. Code § 17200 against all defendants.

  Now before the Court are motions for summary judgment filed by defendant Croasdale, defendant Doctors Hospital, the Alameda County defendants, defendant Prison Health Services, and the CDC defendants. Plaintiff has also filed a motion for summary judgment or partial summary judgment, apparently against all defendants.*fn3

  LEGAL STANDARD

  Summary judgment is proper "if 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)). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323; 106 S.Ct. 2548, 2553 (1986). The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case. See id. at 325.

  The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" See Celotex Corp., 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586; 106 S.Ct. 1348, 1356 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252; 106 S.Ct. 2505, 2512 (1986). In a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. See id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id.

  DISCUSSION I. Plaintiff's Motion for Summary Judgment

  Plaintiff moves for summary judgment, apparently solely on her claim under 42 U.S.C. § 1983. Specifically, she states that "[d]efendants and each of them knew there was a substantial risk of serious harm to Mr. Boyd and thereby violated the Eighth Amendment," and that defendants exhibited deliberate indifference to Boyd's serious medical needs. Pl.'s Mot. at 1:19-20; 2:4-13. Plaintiff's motion includes a series of excerpts from the testimony of plaintiff's expert, Dr. Corey Weinstein. She also submits her own declaration ("Boyd Declaration") and a request for judicial notice ("RJN").

  The factual basis for these claims appears to be Boyd's incarceration at Santa Rita Jail between March 30, 2001 and June 2001, when plaintiff alleges that defendants' failure to provide adequate care and treatment resulted in an infection to his left stump. Third Am. Compl. ¶ 6. On May 15, 2001, Boyd was transferred to Deuel Vocational Institution, where he was seen by a doctor who identified signs of gangrene and eventually diagnosed Boyd with osteomyelitis. Id. at ¶ 43. On May 29, 2001, Boyd was taken to defendant Doctors Hospital for examination, and brought there again on June 6, 2001. Id. at ¶¶ 53, 57. Plaintiff alleges that numerous abuses occurred at Doctors Hospital, including the denial of his repeated requests to contact his attorney and family; the removal his of his prostheses and constant handcuffing of both hands to his bed or wheelchair; the permanent presence of guards in his room; and the inability to obtain information about his condition or alternatives to further amputation. Id. at ¶ 58. Plaintiff alleges Boyd would not agree to surgery without first contacting his attorney or family, and so signed an "against medical advice" form and returned to DVI "in hopes of being able to have contact with his family and attorney and to obtain relief from being chained to a bed 24 hours a day." Id. at ¶ 59. On June 18, 2001, when Boyd left Doctors Hospital, he was sent to the California Institute for Men instead of back to DVI. During this time, plaintiff alleges that Boyd was denied telephone access to his family and attorney. Id. at ¶ 59. He was released from prison on August 26, 2001. Id. at ¶ 65.

  Plaintiff's motion includes excerpts from the testimony of plaintiff's expert, Dr. Corey Weinstein. Dr. Weinstein testified, in relevant part, that Boyd received inadequate care at Doctors Hospital because:
[Boyd] was spoken to at length by nurses to try to figure out how he could continue care. He was frustrated with having to be in a bed without — there are notes there about he can't make phone calls. In other words, he [had] no access to the ordinary general routines of a prison setting like — things like phones and such, sociability programs, and that he came to dispute the staff over this. So that he at one time checked himself back out and said, "I just can't do this anymore," knowing well that the doctors had advised him that he needs intravenous antibiotics . . . Yet he chose at one moment to stop everything and leave. What a difficult and horrible choice we put him in . . . So that the leader of the te[a]m, his medical care [team], as Doctor Croasdale was, had an obligation to protect his patient from adverse conditions of confinement that interfered with the patients ability to function effectively in that setting.
Boyd Decl., Ex. 8 (Weinstein Depo.) at 44:18-45:16.
  Regarding the treatment Boyd received from PHS when he arrived at Santa Rita Jail, Weinstein stated:
not only did PHS institute a treatment regimen which was superficial, based on negligent and superficial examination, but compounded the problem by not doing the required two-week history and physical by a qualified medical examiner at which that might have come up again . . . Is there a reason, other than an ill-fitting pro[s]thesis, which was an assumption made at the facility, that this wound is there and doesn't heal? So that's another thing, that PHS was negligent and did not meet its obligation under its own standards through NCCHC.
Boyd Decl., Ex. 8 (Weinstein Depo.) at 145:1-146:1.

  Defendant Croasdale, Prison Health Services ("PHS"), the Alameda County defendants, and the CDC defendants oppose the motion. Croasdale contends that plaintiff has failed to meet her burden of demonstrating any deliberate indifference on his behalf, through the testimony of plaintiff's expert Dr. Weinstein or otherwise. Defendant PHS also argues that plaintiff has presented no evidence of deliberate indifference by any PHS employee, or any policy or custom of deliberate indifference within the entity. The Alameda County defendants oppose plaintiff's motion, bring a motion to strike portions of the evidence submitted, and oppose plaintiff's RJN, particularly court documents in the class action Plato v. Schwarzenegger, C 01-1351 TEH, pending in this district. The CDC defendants also seek to exclude the Boyd Declaration, the documents for which judicial notice is sought, and the July 22, 2005, July 28, 2005, and August 5, 2005 submissions by plaintiff, and they oppose the motion on grounds that plaintiff has failed to meet her burden for summary judgment on either her ADA/Rehabilitation Act claim or her § 1983 claim.

  Plaintiff has variously alleged deliberate indifference to serious medical needs in violation of the Eighth Amendment, excessive force in violation of the Eighth Amendment,*fn4 and a violation of due process based on Cammerin Boyd's lack of access to his attorney. Plaintiff has entirely failed to meet her burden of production on her § 1983 claim, under any of these theories. "The Eighth Amendment's proscription against cruel and unusual treatment is violated when officials remain deliberately indifferent to the serious medical needs of convicted prisoners." Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). "Under the Eighth Amendment's standard of deliberate indifference, a person is liable for denying a prisoner needed medical care only if the person `knows of and disregards an excessive risk to inmate health and safety.'" Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The Eighth Amendment's deliberate indifference standard is a subjective one: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Here, Dr. Weinstein's testimony that Croasdale "failed to protect" his patient from the adverse conditions of confinement does not establish the subjective state of mind required for deliberate indifference, nor do his opinions that PHS provided inadequate medical care. Moreover, plaintiff refers to various exhibits to support her motion, but does so only with a citation to the entire exhibit, not to specific page numbers or lines of deposition testimony. See Pl.'s Mot. at 2:12-13; 18 ("Ex. 1, 3, 5, 7, 8, 9, 11, 12, 18 & 20"; "Ex. 8, 9, 11 & 20."). On summary judgment, the Court must restrict its inquiry to facts supported by the record. Unsworn allegations in the pleadings are not facts that can be used to defeat summary judgment. Moreover, it is not the Court's task "to scour the record in search of a genuine issue of triable fact," see Kennan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996), and it "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

  Plaintiff's motion suffers from this deficiency throughout. She argues briefly that the Alameda County and CDC defendants violated Boyd's due process right to access the courts by denying him confidential attorney-client visits. Id. at 8:13-20. While she states that "[i]t is undisputed" that this denial occurred, plaintiff cites no facts in the record establishing this fact. For this reason, plaintiff has not met her burden of showing that there is no genuine issue of material fact for trial. To the extent that plaintiff seeks summary judgment on any of her other claims, such motion must be DENIED.

  Plaintiff's motion for summary judgment is DENIED. II. Defendant Croasdale's and Doctors Hospital's Motions for Summary Judgment

  Defendants Croasdale and Doctors Hospital seek summary judgment on all of the causes of action against them in the Third Amended Complaint: the first cause of action under Section 504 of the Rehabilitation Act and the ADA, the second cause of action under 42 U.S.C. § 1983, the third cause of action under 42 U.S.C. § 1985, the fourth cause of action for negligence, the sixth cause of action for intentional infliction of emotional distress, the seventh cause of action (the "survivalaction"), and the eighth cause of action under Cal. Bus. & Profs. Code § 17200. These defendants have filed separate motions, to which plaintiff has filed a single opposition brief. Plaintiff's claims against these defendants arise out of Boyd's treatment at Doctors Hospital from May 29, 2001 to June 3, 2001, and from June 6, 2001 to June 16, 2001, the date when Boyd signed an "Against Medical Advice" form and signed out of the hospital. Generally, Boyd alleges that the care he received from Dr. Croasdale and his treatment by other staff at Doctors Hospital — particularly the practice of shackling both of his hands to the bed — constituted discrimination, violated various statutes and fell below the standard of care. Therefore, the Court treats these motions together.

  A. ADA/Section 504 claim

  Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.S. § 12132 (2003). Similarly, Section 504 of the Rehabilitation Act provides that no handicapped person shall be denied benefits or discriminated against "solely by reason of his or her disability . . . under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794(a) (2003). Title II of the ADA and Section 504 refer to "public entities" and "programs or activit[ies] receiving federal funding," not to individuals. Plaintiff bears the burden of establishing the existence of a reasonable accommodation that was not provided.*fn5 Defendants argue that there is no evidence to support an ADA or Section 504 claim. Defendant Croasdale contends that plaintiff has failed to identify what accommodations should have been made and why they were reasonable or necessary under the circumstances. In addition, Croasdale argues that he had no authority to modify the CDC's shackling policy, and that the CDC has a legitimate interest in keeping inmates chained while they are in the hospital: to ensure the safety of others at the hospital and prevent flight.

  In the complaint, plaintiff alleges that defendants failed "to make reasonable modifications to rules, policies or practices for a qualified individual such as Mr. Boyd, thus they did not provide Mr. Boyd with meaningful access to the benefit of the services, including medical services, testing, treatment, information, and other services provided by defendants in their capacity as medical providers under contract to provide adequate care to inmates." Third Am. Compl. ¶ 84. The only specific reasonable accommodation of which Boyd was allegedly deprived was to have a modification of the CDC procedure of shackling or restraining inmates at Doctors Hospital. Plaintiff contends that there is a triable issue on whether Dr. Croasdale acted with deliberate indifference to Boyd's need for a reasonable accommodation because the CDC procedure at issue allowed the shackling of one wrist but not both. According to plaintiff, the witness produced by defendant Doctors Hospital regarding ADA compliance, Tina Burch, testified that inmates are usually restrained by one wrist, that they are only typically shackled by both wrists if they are "combative," and that she did not know of any instances where nurses have asked deputies to shackle both wrists of a mobility-impaired patient. Boyd Decl., Ex. 14 (Depo. of Tina Burch) at 89-91. Plaintiff also asserts, without citation to the record, that Boyd was "handcuffed to a bed 24/7 for 17 days" Pl.'s Opp'n re: Croasdale, Doctors Hospital, and Davis at 6:15.

  Viewing the evidence in the light most favorable to plaintiff, the Court finds that there is no triable issue of fact regarding his ADA and Section 504 claims. Witness Burch's testimony does not establish that the decision to shackle plaintiff by both wrists constituted discrimination based on his disability or that shackling him by only one wrist or not at all would have been a reasonable accommodation. Burch testified that inmates are usually shackled on one wrist, but that CDC officers may shackle both wrists of combative inmates, and that she has never personally seen nurses ask CDC officers to shackle both wrists of a mobility-impaired patient. Boyd Decl., Ex. 14 at 89:19-24; 90:14-17. Additional unsupported factual allegations in plaintiff's Opposition brief do not shed light on any other conceivable disability discrimination or lack of reasonable accommodation. For example, plaintiff states that "Mr. Boyd testified in deposition that he was treated differently because of his status as a prisoner as opposed to non prisoner patients. He was referred to by health care providers as `the prisoner' instead [of] as the `patient.'" Pl.'s Opp'n to Croasdale, Doctors Hospital, and Davis at 6:7-9. The Court cannot "scour the record" — here, hundreds of pages of Boyd's deposition testimony — to locate evidentiary support for this allegation. Kennan v. Allan, 91 F.3d at 1278; Carmen v. San Francisco Sch. Dist., 237 F.3d at 1031. But even assuming that plaintiff had provided citations, Boyd's own testimony that he was treated differently does not create a triable issue.

  Summary judgment is GRANTED to defendants on this claim.

  B. Section 1983 claim

  Plaintiff addresses this claim only indirectly in her Opposition. The bases for the § 1983 claim appear to be (1) that these defendants violated Boyd's Eighth Amendment rights by their deliberate indifference to his serious medical needs and to the conditions of his confinement, and (2) that they violated due process by denying Boyd access to his attorney and family for the three weeks he was at Doctors Hospital. In evaluating plaintiff's summary judgment motion, the Court concluded that plaintiff had failed to meet her burden of production on this claim. Here, the Court views the evidence in the light most favorable to plaintiff, but also concludes that she has not shown any evidence of deliberate indifference, not even enough to create an issue of material fact.

  Deliberate indifference to serious medical need is established "only if the person `knows of and disregards an excessive risk to inmate health and safety.'" Gibson v. County of Washoe, 290 F.3d at 1187, quoting Farmer v. Brennan, 511 U.S. at 837. Plaintiff generally cites Exhibits 8, 9, 11 and 20 to the Boyd Decl. as evidence of deliberate indifference; these are the deposition testimony of Dr. Corey Weinstein, the deposition of Cammerin Boyd, multiple inmate grievances filed by Boyd, and the third amended complaint in this action. She argues that defendant Croasdale's knowledge is evidenced by his June 6, 2001 "order" that Boyd be transferred to Vacaville for six to eight weeks of intravenous antibiotics care. Pl.'s Opp'n to Croasdale, Doctors Hospital, and Davis at 7:21-25. Plaintiff's blanket citations to lengthy deposition testimony do not defeat summary judgment; nor do the allegations in plaintiff's complaint. In addition, it is difficult to conceive of how Croasdale's attempt to have Boyd transferred for treatment could display his indifference. Plaintiff apparently relies on Boyd's grievances to show that he was unable to file any while at Doctors Hospital, but this fact, even if true, does not establish Croasdale, Davis, and the hospital's knowledge of and disregard for the risk of serious harm to Boyd.

  Accordingly, the Court GRANTS summary judgment on this claim.

  C. Section 1985 claim

  Defendants argue that plaintiff has offered neither evidence nor argument to defeat summary judgment on this claim, and the Court agrees. Plaintiff has presented no evidence establishing (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons the equal protection of the laws; (3) an act in furtherance of the conspiracy; or (4) injury. The Court GRANTS summary judgment on this claim.

  D. Negligence

  Defendants contend that they are entitled to summary judgment because the treatment provided by Croasdale and Doctors Hospital staff generally was within the standard of care. They each offer expert testimony in support of this contention: Dr. Watkins on Dr. Croasdale's behalf and Dr. Joseph on Doctors Hospital's behalf. Dr. Watkins states that, based on the admitting orders and diagnosis of suspected osteomyelitis by Dr. Croasdale, as well as Croasdale's prescribed treatment of intravenous antibiotics and attempts to convince Boyd to submit to this treatment at Doctors Hospital, Croasdale met the standard of care. Watkins Decl. ¶¶ 18-21. Dr. Joseph also states that the care and treatment provided by Doctors Hospital met the standard of care, including Dr. Croasdale's admitting orders, recommendation of intravenous antibiotics, and discharge orders after Boyd signed an Against Medical Advice form on June 16, 2001. Joseph Decl. ¶¶ 5, 7, 11. In addition, Joseph opines that the treatment provided by the nursing staff was adequate and diligent, as were their attempts to transfer Boyd back to DVI after he requested discharge. Id. at ¶ 15-16. Defendants argue that this testimony negates the essential element of breach, and that Dr. Joseph's review of the medical records reveals that Boyd's stump wound improved and his condition remained good during his time at the hospital, negating the element of causation. Id. at ¶¶ 18-20.

  When a defendant moves for summary judgment on a negligence claim and provides expert testimony that a physician's conduct fell within the standard of care, a plaintiff must produce conflicting expert evidence to defeat summary judgment. Munro v. Regents of Univ. of California, 215 Cal. App. 3d 977, 985 (1989). Here, plaintiff offers the testimony of her expert, Dr. Corey Weinstein, in support of arguments that Boyd experienced suffering, that Doctors Hospital "has a duty to figure ou[t] a way to construct solutions for issues of custodial environment at its institution," and that "there were aspects of Dr. Croasdale's care that fell below the standard of care." Pl.'s Opp'n re: Croasdale, Doctors Hospital, and Davis at 9:26-27; 10:1-2. Weinstein testified, in relevant part, that Boyd was suffering at Doctors Hospital because:
[Boyd] was spoken to at length by nurses to try to figure out how he could continue care. He was frustrated with having to be in a bed without — there are notes there about he can't make phone calls. In other words, he [had] no access to the ordinary general routines of a prison setting like — things like phones and such, sociability programs, and that he came to dispute the staff over this. So that he at one time checked himself back out and said, "I just can't do this anymore," knowing well that the doctors had advised him that he needs intravenous antibiotics . . . Yet he chose at one moment to stop everything and leave. What a difficult and horrible choice we put him in . . . So that the leader of the te[a]m, his medical care [team], as Doctor Croasdale was, had an obligation to protect his patient from adverse conditions of confinement that interfered with the patient's ability to function effectively in that setting.
Boyd Decl., Ex. 8 (Weinstein Depo.) at 44:18-45:16.
  Weinstein also opined that Croasdale and the hospital were responsible for the circumstances of Boyd's custody at Doctors Hospital, stating that, while "[Croasdale] couldn't have given direct orders [to change the circumstances], . . . [t]he Department of Corrections is about to go into receivership for continued negligent, unconstitutional deliberate indifference of care," and that "prisoner/patients are not protected from the adverse circumstances of the conditions of their confinement by medical staff." Id. at 46:3-16. When asked specifically what aspects of Croasdale's treatment fell below the standard of care, Weinstein stated:
Let me answer in this way. I think that it's — while it's common for people who are not employed directly by Corrections and who are not working within the prison setting to ignore aspects of their responsibility that they would more obviously have if they were within a correctional setting. So it's common for Doctor Croasdale to not be aware of this or relate to it or perhaps even think that it's part of his world . . . [Boyd] was basically there because the Department of Corrections couldn't figure out another place that would have been more custodially appropriate and effective for him as a prisoner/patient to be. So what is Doctor Croasdale's responsibility in terms of seeing his patient there suffering from this aspect; does he have a responsibility we might ask/ And I would answer, yes, he does.
Id. at 43:4-12; 44:6-13. These statements, however, do not constitute "conflicting" evidence on the issue of negligence, and in fact Dr. Weinstein ultimately testified that the medical care provided to Boyd at Doctors Hospital "met the technical standard of care," and that the medical care rendered by Dr. Croasdale in May and June of 2001 met the standard of care "[i]n a narrow sense." Id. at 42:9-25. Accordingly, plaintiff has not established a triable issue of fact, and defendants Croasdale, Davis, and Doctors Hospital are entitled to summary judgment on this claim.

  E. Intentional infliction of emotional distress

  A claim for intentional infliction of emotional distress requires: (1) outrageous conduct by the defendants; (2) intent to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Agarwal v. Johnson, 25 Cal.3d 932, 946 (1979) (citation and internal quotation marks omitted). Furthermore, to be considered outrageous, the conduct "must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Cervantez v. J.C. Penney Company, Inc., 24 Cal 3d 579, 593 (1979).

  Plaintiff does not address this claim in her Opposition brief, and defendants contend that the record is devoid of any evidence, even in decedent Boyd's testimony, of extreme and outrageous conduct by Croasdale or Doctors Hospital, or of severe emotional suffering. In addition, Doctors Hospital argues that the alleged denials of access to an attorney and medical care cannot form the factual basis for the "extreme and outrageous conduct" required for this tort. The Court agrees, and finds that defendants are entitled to summary judgment on this claim.

  F. Survival action

  Defendants argue that plaintiff's survival action is not properly pled because a survival action is not a separate and independent tort, but rather allows for certain damages in actions brought by a decedent's personal representative. The Third Amended Complaint states that "[t]his cause of action is brought pursuant to 42 U.S.C. § 1983 and California Code of Civil Procedure § 377.34." Third Am. Compl. ¶ 108. It appears that plaintiff seeks survival damages for the § 1983 claim, and that indeed this separate cause of action is superfluous. In addition, plaintiff makes no mention of this claim in her Opposition brief, and the Court finds summary judgment in favor of defendants appropriate.

  G. Section 17200

  In this claim, plaintiff alleges that defendants have committed the unfair business practices of "denying Mr. Boyd `the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations' as provided to non-African American person[s], and non-disabled inmates and required under the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq. and the Unruh Civil Rights Act," and that "[d]efendants . . . have a pattern and practice of discriminating against African Americans and disabled inmates. They also have a pattern and practice ...


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