ORDER GRANTING DEFENDANT ALAMEDA COUNTY MEDICAL CENTER'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs, the estate and family of Dr. Erlinda Ursua, filed this action pursuant to 42 U.S.C. § 1983 against defendant Alameda County Medical Center (the "Medical Center"), alleging a violation of Dr. Ursua's Fourteenth Amendment rights. They also sued Alameda County (the "County") and ABC Security Service, Inc. ("ABC") for negligence.*fn1 Now before me is the Medical Center's motion for summary judgment.
Viewed favorably to plaintiffs, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the material facts and evidence show that Dr. Ursua was employed by the Medical Center to take histories and conduct physical examinations of patients admitted to the John George Psychiatric Pavilion (the "JGPP").*fn2 The JGPP, which treats mental patients, was considered a dangerous place, with numerous incidents of assaults on the staff by the patients (PF 77-81). In early 2003, individually and collectively, the staff notified the Medical Center of their safety concerns. Not satisfied with the Medical Center's response, the staff complained to the State of California's Division Occupational Safety and Health ("OSHA") (PF 107, 110), which on June 24, 2003 issued a Citation and Notification of Penalty (PF 123) for a serious violation of California Code of Regulations § 3203(a)(6) and directed the JGPP to adopt safety policies and procedures (PF 121, 123, 125). Except for the addition of a security guard, the Medical Center did little to address employee safety prior to Dr. Ursua's death. Staff complaints continued. The Medical Center relied on an accepted, unwritten policy using a "buddy system" requiring staff be accompanied by "another person at all times when dealing with patients" (PF 119) and the presence of a panic button in each examination room, which, if pressed, would have activated alarms and lights in the hallway and at the nurses' stations. The Medical Center also employed ABC which provided security guards.
On the afternoon of November 19, 2003, Renee Pavon, an admittee to the JGPP, assaulted and killed Dr. Ursua when the doctor was taking a history and conducting a physical examination of Pavon, alone, in Room B18 (also known as Room 1319 before the JGPP opened)(PF 6). Room B18 is an isolated room between Units B and C of the JGPP, approximately 100 feet from the nearest nurses' stations (PF 9, 10). Room B18 is in a hallway with locked doors on both ends, inaccessible by patients unaccompanied by staff (PF 8) and not patrolled by ABC. In fact, one of the security guards on duty the day of Dr. Ursua's death was unaware that the hallway existed (Decl. of Seaton, Exh. 20, Kumar Deposition at 15). The other security guard on duty had never been in the hallway before Dr. Ursua's death (Decl. Of Seaton, Exh. 19, Moreno Deposition at 65). There had been no history of assaults by patients in that room.
In moving for summary judgment, the Medical Center relies on Collins v. City of Harker Heights, 503 U.S. 115 (1992), which held that "the Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace." Id. at 130. Following Harker Heights, the Ninth Circuit held that a plaintiff may properly state a claim under the Due Process Clause where the state engaged in affirmative conduct which placed the plaintiff in danger. See L.W. v. Grubbs ("Grubbs I"), 974 F. 2d 119, 121 (9th Cir. 1992). The Ninth Circuit later clarified this "danger creation" exception, holding that "in order to establish Section 1983 liability . . . the plaintiff must show that the state official participated in creating a dangerous condition, and acted with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it" L.W. v. Grubbs ("Grubbs II"), 92 F. 3d 894, 900 (9th Cir. 1996).
Plaintiffs assert that the Medical Center placed Dr. Ursua in danger. In particular, plaintiffs argue that despite knowledge of prior attacks by patients, complaints from its employees and citations from OSHA, the Medical Center continued to use Room B18, failed to adopt a written policy requiring an attendant to accompany a doctor during an examination and failed to provide doctors with personal alarms. Accepting these facts as true, I find that, as in Harker Heights, plaintiffs have shown only that the Medical Center maintained an unsafe work environment. They have failed to show any affirmative act on behalf of the Medical Center that caused or increased the danger to Dr. Ursua. Compare Grubbs I, 974 F. 2d at 122-23 (a supervisor instructed the plaintiff to enter a work area with a violent sex offender knowing there was a significant risk of injury and after promising that the plaintiff would not have to work with sex offenders). Plaintiffs have not cited any case, and the court can find none, holding that a failure to act in the face of knowledge of dangerous conditions causes or contributes to the creation of a danger, to satisfy the Grubbs I "danger creation" exception to the Harker Heights rule exempting municipalities from liability.*fn3
The record shows, and plaintiffs do not dispute, that the Medical Center had measures in place to try to minimize the danger to employees such as Dr. Ursua. Although the policy was unwritten and staff may not have always complied with it (PF 120), the Medical Center encouraged staff to use a "buddy system" and to attend to patients with other staff members present. Plaintiffs emphasize the OSHA citations and staff complaints to attempt to show that the Medical Center had knowledge of the dangers of working in the JGPP and did not address or mitigate such dangers. But the Supreme Court in Harker Heights expressly rejected a constitutional duty to mitigate such dangers. "The Due Process Clause is not a guarantee against incorrect or ill-advised personnel decisions. Nor does it guarantee municipal employees a workplace that is free of unreasonable risks of harm." Harker Heights, 503 U.S. at 129 (internal quotes and citation omitted).
To prevail, plaintiffs must demonstrate, at the very least, that the Medical Center acted affirmatively and with deliberate indifference, in creating a foreseeable danger leading to the deprivation of Dr. Ursua's constitutional rights. Huffman v. County of Los Angeles, 147 F. 3d 1054, 1061 (9th Cir. 1998). Plaintiffs have not pointed to any facts in the record which show that the Medical Center would have denied a request by Dr. Ursua to have another staff member accompany her or to use another, less isolated room to conduct Pavon's history and examination. Plaintiffs do not dispute the presence of a panic button in Room B18 (PF 13) and the employment of security guards. The misconduct alleged here was not affirmative action but rather involved alleged inaction - failure to take sufficient safety precautions for employees - and this inaction does not constitute the kind of affirmative action necessary to state a federal due process claim.
Having concluded that plaintiffs have failed to establish that the Medical Center acted affirmatively to create a dangerous condition, I need not reach the issue whether the ...