The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff proceeds with this action for damages and equitable relief under the Americans with Disabilities Act ("ADA"), Unruh Civil Rights Act ("Unruh Act"), Disabled Persons Act ("DPA"), First Amendment, 42 U.S.C. § 1983, and Bane Civil Rights Act. Before the court are cross-motions for summary judgment.
II. FACTUAL BACKGROUND A. Procedural History
Plaintiff filed a complaint on March 14, 2008, amendments to the complaint were filed, and a third amended complaint ("TAC") was filed on May 27, 2009. The TAC alleges fifteen causes of action.
On December 16, 2010, the parties stipulated to dismiss the first cause of action for violation of the Emergency Medical Treatment and Active Labor Act, eighth cause of action for medical malpractice, ninth cause of action for false arrest, tenth cause of action for assault, and eleventh cause of action for intentional infliction of emotional distress.
On November 1, 2010, Plaintiff filed a motion for partial summary judgment. Doc. 130. Plaintiff moves for partial summary judgment against Community Regional Medical Center ("Community Medical") on the second cause of action for violation of the ADA, sixth cause of action for violation of the Unruh Act, seventh cause of action for violation of the DPA, and fifteenth cause of action for injunctive relief. Plaintiff also moves for partial summary judgment against Dr. Thomas Mansfield on the sixth cause of action for violation of the Unruh Act and seventh cause of action for violation of the DPA. Doc. 130.*fn1 Defendants filed oppositions (Docs. 143, 153), to which Plaintiff replied (Docs. 180, 185).
On October 29, 2010, Dr. Mansfield filed a motion for summary judgment, or in the alternative, summary adjudication of the issues on all causes of action asserted against him. Doc. 122. Plaintiff filed an opposition (Doc. 159), to which Dr.Mansfield replied (Doc. 172).
On October 29, 2010, the City of Clovis, Tina Stirling, and Lonnie R. Amerjan (together, "Clovis Defendants") filed a motion for summary judgment, or in the alternative, summary adjudication of the issues on all the causes of action asserted against Clovis Defendants. Doc. 115. Plaintiff filed an opposition (Doc. 164), to which Clovis Defendants replied (Doc. 173).*fn2
B. Factual History 1. Undisputed Facts
On June 9, 1994, the Department of Health and Human Services, Social Security Administration ("SSA"), Office of Hearing and Appeals held that Plaintiff "has been disabled since October 21, 1992" and "has the following impairments which are considered to be 'severe' under the Social Security Act and Regulations: cervical spine strain, lumbosacral spine strain and bilateral shoulder pain." Doc. 133, Ex. A, Bates No. 150. The SSA letter does not discuss any sensitivity to cold.
Plaintiff came into the Community Medical Emergency Room ("Emergency Room") on March 17, 2007 complaining of abdominal pain. The triage nurse completed a written report for Plaintiff. A chart was opened for Plaintiff; the face sheet included in capital letters "DISABLED" on all five pages under the word "Employer."
Once Plaintiff was registered and brought into the Emergency Room, he came under the care of Nurse Greene and Dr. Mansfield. When Nurse Greene saw Plaintiff around 7:40 p.m. that evening, she requested Plaintiff put on a hospital gown. Plaintiff refused. Plaintiff was asked repeatedly to undress and wear a hospital gown, but refused repeatedly. The hospital security guard, Charles Mitchell, states that the only reason Plaintiff gave for refusing to wear a gown was that it was a "f-ing dress." Doc. 144, 17:1-12
Dr. Mansfield is an independent contractor with privileges to practice in Community Medical's Emergency Room. Dr. Mansfield's shift on March 17, 2007 began at 10:00 p.m., and Dr. Mansfield first saw Plaintiff shortly after his shift began that night. Dr. Mansfield ordered medications for the treatment of Plaintiff at 10:15 p.m. Dr. Mansfield also provided for an alternative form of treatment (prescription for oral medication) if Plaintiff did not stay in the Emergency Room.*fn3
The police were called at 10:24 p.m. after Mr. Mitchell was unsuccessful with Plaintiff. Officer Tina Stirling arrived at Community Medical around 10:30 p.m. Corporal Lonnie R. Amerjan arrived around 10:43 p.m.
Plaintiff complained about Dr. Mansfield and Nurse Greene, and refused to wear a hospital gown. Officer Stirling asked Plaintiff why he would not wear the hospital gown and explained that the doctor would treat him if he would wear the hospital gown. Plaintiff stated that he did not want to wear the gown and that the doctor could see him as he was. Plaintiff demanded a different doctor and nurse. Corporal Amerjan explained to Plaintiff that if he did not want to be treated at Community Medical, he could have a friend, family or taxi take him to another hospital and that the police could help Plaintiff make arrangements if he wanted to go to another hospital if his resources were lacking.
Plaintiff exclaimed that he was well aware of his rights as a patient and would sue the hospital, doctor, and nurse for violating those rights. Corporal Amerjan informed Plaintiff that suing the hospital and staff was a civil issue. Corporal Amerjan told Plaintiff that he had heard Plaintiff's Jacoby & Myers routine before and the police were not present to participate in a civil law suit. Corporal Amerjan explained that Officer Stirling and he were present to keep the peace and protect the staff and other patients in the hospital.
Plaintiff admitted that he is uncivil when he is in pain. Plaintiff admits that his pain level was at least 12 on a scale of 1 to 10 at the time of the incident. Plaintiff admits that he was in too much pain to leave the hospital bed and did not attempt to walk around to help with the pain.
Plaintiff demanded pain medication. Corporal Amerjan went to find Dr. Mansfield and told him Plaintiff wanted pain medication. Dr. Mansfield told Corporal Amerjan that he could not issue pain medication without examining the patient first. Dr. Mansfield requested the officers try to keep Plaintiff calm and help get him to put on his hospital gown so Dr. Mansfield could treat him.
Plaintiff stated that he knew his rights and demanded a medical advocate. Corporal Amerjan instructed Officer Stirling to get an administrator or medical advocate for Plaintiff. Plaintiff pointed his finger at Corporal Amerjan and exclaimed: "Either get me some pain medication, arrest me, or get the hell out of here!"
Officer Stirling returned to the room with House Supervisor, Kathryn Kawaguchi. Ms. Kawaguchi closed the privacy curtain around Plaintiff and spoke with Plaintiff. When Ms. Kawaguchi opened the privacy curtain several minutes later, Plaintiff was wearing a hospital gown. Ms. Kawaguchi said the hospital would admit Plaintiff and that it was safe for the officers to leave.
Corporal Amerjan and Officer Stirling spent 50 minutes or less at Community Medical. Corporal Amerjan never touched Plaintiff or his hospital bed.
Plaintiff initially refused oral medications needed for the CT because of his nausea, and adjustments were made to provide medications to Plaintiff intravenously to accommodate his condition and request. Dr. Mansfield ordered additional medications and testing before midnight. Plaintiff reported feeling better and his symptoms being somewhat relieved around midnight.
An IV was placed in Plaintiff, and Dr. Mansfield ordered a CT scan of Plaintiff's abdomen. Plaintiff did not drink the oral contrast fluid necessary for a CT scan. Ms. Kawaguchi was called a second time to assist with Plaintiff. Dr. Mansfield prescribed medication to calm Plaintiff to facilitate the CT scan. The CT scan was completed around 5:30 a.m. and Plaintiff was returned to his room. Plaintiff's chart reflects that he was resting quietly at that point.
After reviewing the results of the CT scan, Dr. Mansfield diagnosed Plaintiff with a pseudo cyst on March 18, 2007. Dr. Mansfield contacted the on-call internist, Dr. Gurcharan Sidhu, to admit Plaintiff into Community Medical. At 6:08 a.m., Dr. Mansfield ordered Plaintiff's pseudo cyst drained. Dr. Sidhu performed a CT guided pseudo cyst drainage on Plaintiff on March 18, 2007.
Community Medical has specific written policies for allowing service animals in patient care areas for persons with disabilities (Doc. 134, Ex. H, Bates Nos. FCH 00015-00017), a policy to assist patients with limited English proficiency (Id. at Bates No. FCH00047-FCH00054), and a policy for "special needs" patients ("i.e., interpreter, deaf") (Id. at Bates No. FCH00098-FCH000999). Community Medical's patient's rights policy permits psychiatric patients to wear his or her own clothes. Id. at Bates No. FCH00089.
Plaintiff has used Community Medical's facilities many times since March 17, 2007.
Dr. Mansfield contends that it is standard practice not to include face sheets in a patient's medical chart, but that they are purely administrative and not used or relied upon by physicians at Community Medical to treat patients. Dr. Mansfield contends that he did not access or see Plaintiff's face sheets at any time during his treatment of Plaintiff March 17-18, 2007.
Dr. Mansfield and Community Medical contend that it is customary practice for emergency nurses and doctors to require patients to submit to a physical examination and put on a hospital gown. Plaintiff asserts that Community Medical does not have a policy requiring patients to wear hospital gowns and points out that Community Medical policy explicitly permits psychiatric patients to wear their own clothes.
Plaintiff contends that he was denied treatment for several hours because of his refusal to wear a hospital gown and because Defendants failed to ask him if they could make a reasonable accommodation for his disability. Plaintiff claims that he refused to wear a gown because of his disability and sensitivity to cold weather. Defendants contend that Plaintiff never stated this reason for his refusal to wear a hospital gown.
Defendants contend that Plaintiff never told them of his disability. Plaintiff argues that he described his disability and aversion to cold to various medical personnel on the evening of March 17, 2007.
Officer Defendants assert that they had probable cause to arrest Plaintiff under Cal. Penal Code § 415*fn4 based on Plaintiff's yelling, cursing, and refusal to cooperate with hospital staff. It is undisputed that Officer Defendants did not arrest Plaintiff.
Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P.56.
The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505 (1986).
If the moving party would bear the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9thCir. 2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by "merely pointing out that there is an absence of evidence" to support the non-moving party's case. Id.
When the moving party meets its burden, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255. Rather, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Fed.R.Civ.P. 56(e). "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Soremekun, 509 F.3d at 984.
A. Plaintiff's Motion for Partial Summary Judgment
1. Second Cause of Action: Violations of the Americans with Disabilities Act, 42 U.S.C. § 12182
Plaintiff moves for summary judgment against Community Medical for violations of the ADA.
Title III of the ADA prohibits discrimination in public accommodations, providing that:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). Discrimination under the ADA includes: a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii). It is also discriminatory "to subject an individual or class of individuals on the basis of a disability or disabilities . . . to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity." 42 U.S.C. § 12182(b)(1)(A)(i).
An individual alleging discrimination under the ADA must show:
(1) he is disabled as that term is defined by the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; (3) the defendant employed a discriminatory policy or practice; and (4) the defendant discriminated against the plaintiff based upon the plaintiff's disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiff's disability.
Fortyune v. Amer. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004).
a. Plaintiff's Disability
The ADA defines "disability" as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."
42 U.S.C. § 12102(1). "Physical or mental impairment" means:
(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine;
(B) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
28 C.F.R. § 35.104. Physical and mental impairments include:
such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.
Id. "Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id.
The definition of disability is "construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms of [the ADA]." 42 U.S.C. § 12102(4)(A). However, "[t]he ADA defines 'disability' with specificity as a term of art. Hence, a person may be 'disabled' in the ordinary usage sense, or even for purposes of receiving disability benefits from the government, yet still not be 'disabled' under the ADA. The converse may sometimes be true as well." Sanders v. Arneson Prod., Inc., 91 F.3d 1351, 1354 n.2 (9th Cir. 1996); see also Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008)(holding that a disability determination by the SSA, even if substantiated, would not be controlling to prove that an individual is disabled within the meaning of the ADA).
As evidence of his disability, Plaintiff offers a June 8, 1994 decision rendered by an Administrative Law Judge in the Department of Health and Human Services, Social Security Administration ("SSA"). Doc. 133, Ex. A. The decision concludes that Plaintiff "has been disabled since October 21, 1992" and "has the following impairments which are considered to be 'severe' under the Social Security Act and Regulations: cervical spine strain, lumbosacral spine strain and bilateral shoulder pain. These impairments prevent the claimant from engaging in even a significant range of sedentary exertion. This conclusion is supported by the medical records of the Valley Medical Center of Fresno." Id. at Bates No. 150. The SSA decision states that "there are no jobs existing in significant numbers which he can perform." Id. at Bates No. 153.
Plaintiff also declares the following:
For approximately two decades I have suffered from a debilitating condition known as degenerative disc disease. Because of the disease, I have severe joint pains and it is difficult for me to stand, sit, walk, or remain in any position for sustained periods of time. Because of my joint pains, it is difficult for me to shower, perform household chores, or exert myself in any other way physically. When I walk, I usually use an assistive device such as a cane, walker or wheelchair. If I walk without a cane, I am very unstable and risk falling. Cold temperatures bring about "stingers" which feel like electric current running throughout my body, causing me to twitch and exacerbate my joint pains. Since 1994 to present I have continued to receive SSI benefits based upon my disability, and periodic review by the Social Security Administration.
The SSA determination together with Plaintiff's declaration, if found to be true, satisfy the ADA definition of disability. Plaintiff has a physical or mental impairment (degenerative disc disease) that substantially limits (for approximately two decades) one or more major life activities (ability to ...