CLIFFORD SMITH et al., No. 2:19-cv-01426-TLN-CKD Plaintiffs, v. ORDER COUNTY OF SACRAMENTO et al., Defendants. This matter is before the Court on Defendant Angela Vickers, M.D.’s (“Defendant”) Motion for Summary Judgment. (ECF No. 43.) Plaintiffs Clifford Smith (“Smith”) and Kristina Fleshman (“Fleshman”) (collectively, “Plaintiffs”) filed an opposition. (ECF No. 52.) Defendant filed a reply. (ECF No. 53.) For the reasons set forth below, Defendant’s motion is DENIED. /// /// /// /// /// /// /// /// I. FACTUAL AND PROCEDURAL BACKGROUND1 On June 25, 2017, Plaintiffs brought their two-month-old son, J.S., to a Sutter Health hospital for treatment of “a number of medical issues including . . . vomiting and gasping for air after feeding.” (ECF No. 1, Ex. B ¶ 33; ECF No. 43-3, Ex. A.) A physician evaluated J.S., prescribed medication for acid reflux, and discharged him into the care of Plaintiffs. (ECF No. 1, Ex. B ¶ 33.) Later that day, another child allegedly bumped into Fleshman while she was feeding J.S. with a bottle, causing injury to J.S.’s mouth. (ECF No. 1, Ex. B ¶ 34; ECF No. 43-1 at 2.) Plaintiffs took J.S. to the medical center at the University of California, Davis (“UC Davis”) for treatment and consented in writing to the performance of medical services.2 (ECF No. 52-3 at 2.) The attending physician diagnosed J.S. with a torn frenulum in his mouth and documented bruising on his head. (Id.) Based on the location and type of injury J.S. sustained, UC Davis medical staff suspected J.S. suffered from non-accidental trauma and contacted Defendant, Director of the Bridging Evidence Assessment and Resources program at Sutter Health, for her advice and input. (Id. at 2–3; ECF No. 43-3, Ex. F ¶¶ 3, 6.) Defendant reviewed the information related to J.S.’s injuries and agreed with UC Davis medical staff that non-accidental trauma might be the cause of J.S.’s injuries and recommended medical staff perform a bone survey.3 (ECF No. 52-3 at 3.) Meanwhile, UC Davis medical staff contacted local authorities regarding Plaintiffs’ purported child abuse, and J.S. was thereafter placed into protective custody. (ECF No. 1, Ex. B ¶ 36; ECF No. 43-1 at 3.) J.S.’s bone survey results came back normal. (ECF No. 43-3 at 9; ECF No. 52-3 at 3; ECF No. 52-1 at 6.) The next day, a county social worker called Defendant regarding Plaintiffs’ alleged child 1 The facts herein are undisputed unless otherwise indicated. 2 Defendant contends Fleshman’s consent encompasses the bone survey that was subsequently performed, but Plaintiffs contend consent was only given to treat J.S.’s injured mouth. (See ECF No. 43-1 at 5–6; ECF No. 52-3 at 2.)
3 The parties dispute whether Defendant ordered J.S.’s bone survey. (See ECF No. 52-3 at 3.) abuse. (ECF No. 52-3 at 3.) During that conversation, Defendant expressed her concern that J.S.’s sister, V.S., was at risk of physical abuse in light of J.S.’s injuries and recommended medical staff perform a physical examination of V.S. (ECF No. 52-3 at 3.) Shortly thereafter, the social worker arrived with police at Plaintiffs’ home and placed V.S. into protective custody. (Id. at 4.) Fleshman provided oral consent4 for medical care for V.S. and one of the nurse practitioners that Defendant supervises subsequently performed a bone survey on V.S. at Defendant’s request.5 (Id. at 4–5.) In November 2018, Plaintiffs filed a complaint in state court against Defendant and several co-defendants alleging, among other things, Defendant performed or caused to be performed an unwarranted and nonconsensual forensic medical examination on J.S. and V.S. in violation of 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). (ECF No. 1, Ex. B.) Defendant removed the action to this Court (ECF No. 1 at 1–5) and subsequently moved to dismiss both claims (ECF No. 6). The Court granted in part Defendant’s motion and dismissed Plaintiffs’ Monell claim but denied Defendant’s motion as to Plaintiffs’ § 1983 claim. (ECF No. 14.) On October 7, 2022, Defendant filed the instant motion for summary judgment.6 (ECF No. 43.) /// /// 4 Defendant contends Fleshman’s consent to medical care encompassed the bone survey medical staff performed. (See ECF No. 43-1 at 6; ECF No. 52-3 at 4.) Plaintiffs maintain that consent was only given for medical care in the event V.S. became injured or ill. (See ECF No. 52-2.)
5 Plaintiffs contend a genuine issue of material fact exists as to whether Defendant ordered the bone survey for V.S. (See ECF No. 52 at 3–4.) However, Plaintiffs also did not dispute that “[a]lthough Defendant’s name is listed as the ordering provider on the radiology report, she did not order that study . . . .” (ECF No. 52–3 at 5.) The Court declines to treat this latter stipulation as a binding judicial admission because it was likely made in advertence, evidenced by Plaintiffs’ subsequent opposition motion that is dated one day after the purported admission. See Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (district courts have discretion to determine whether statements are binding judicial admission); Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860 (9th Cir. 1995) (subsequent statements explaining ostensible judicial admission must be given due weight). 6 The other codefendants settled out of court. (See ECF No. 67.) Summary judgment is appropriate when the moving party demonstrates no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file together with 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 (1986). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 324 (internal quotation marks omitted). Indeed, summary judgment should be entered against a party who does not make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251–52. In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz., 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita Elec. Indus. Co., 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s note on 1963 amendments). In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed. R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence of the opposing party is to be believed and all reasonable inferences that may be drawn from the facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587. Defendant contends there is no genuine dispute as to any material fact and that she is entitled to judgment as a matter of law as to Plaintiffs’ § 1983 claim because: (1) she did not perform or order any physical examination of J.S. or V.S.; (2) Fleshman consented to the physical examinations of J.S. and V.S.; (3) Defendant is not a state actor; (4) she did not act under color of state law; and (5) even if she acted under color of state law, she is entitled to qualified immunity. (See ECF No. 43–1 at 5–13.) Plaintiffs oppose summary judgment on the bases that a genuine dispute of material fact exists, and qualified immunity does not apply to forensic examinations. (See ECF No. 52 at 3–12.) The Court addresses each argument in turn. /// /// A. Physical Examination of J.S. and V.S. It is undisputed Defendant did not perform any physical examination of J.S. or V.S. (ECF No. 52-3 at 6.) Defendant contends she also did not order any physical examination of J.S. or V.S. and therefore cannot be liable for allegedly violating Plaintiffs’ right to make important medical decisions for their children as a matter of law. (See ECF No. 43 at 5.) In support of her contention, Defendant cites to her own declaration which states that she did not make any treatment orders for J.S. or V.S. (Id.; ECF No. 43-3, Ex. F.) Plaintiffs argue that a genuine dispute exists regarding whether Defendant’s “recommendation” to medical staff, including a subordinate employee, that certain medical treatment be performed on J.S. and V.S. is akin to an order that brought about the alleged unconstitutional examinations. (See ECF No. 52 at 3–4.) In other words, Plaintiffs maintain Defendant proximately caused the purported unlawful examinations of J.S. and V.S. notwithstanding the fact that she did not perform the exams herself. (See id.) To bolster their claims, Plaintiffs submitted excerpts from the Sacramento County Child Protective Services daily service logs. (ECF No. 52–1, Ex. A.) One of the logs states Defendant “requested” exams of J.S. and V.S. and another states that Defendant ordered an exam of V.S. (Id. at 6, 12.) “The right to family association includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state.” Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000). Absent parental consent or “a reasonable concern that material physical evidence might dissipate or that some urgent medical problem exists requiring immediate attention, the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical examinations.” Id. (citation omitted). The state’s failure to do so violates parents’ Fourteenth Amendment substantive due process rights. Mann v. Cnty. of San Diego, 907 F.3d 1154, 1160–61 (9th Cir. 2018). The Ninth Circuit has also held that a supervisor may be liable under § 1983 “if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). “[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury.” Id. (quoting Redman v. Cnty. of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991). The Court finds that a genuine dispute of material fact exists as to whether Defendant ordered the physical examinations of J.S. and V.S. As the moving party, Defendant carries the initial burden of “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., 477 U.S. at 323. The only evidence Defendant presents in support of her contention that she did not order any examination of J.S. or V.S. is a self-serving declaration, which the Court finds insufficient to demonstrate the absence of a genuine issue of material fact. Cf. F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as amended (Apr. 11, 1997) (“A conclusory, self– serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”). In any event, Plaintiffs dispute Defendant’s allegation that she did not order the exams of J.S. and V.S. (ECF No. 52-3 at 3, 6) and maintain that she is liable for the conduct of her subordinate employee (ECF No. 52 at 3-4.) The Sacramento County Child Protective Services daily service logs (ECF No. 52-1, Ex. A) and Defendant’s own admission that she recommended a bone survey and her supervisee performed the procedure on V.S., demonstrate that a genuine dispute of material fact exists as to whether Defendant ordered the physical examinations of J.S. and V.S., which may result in supervisory liability under § 1983. See Starr, 652 F.3d at 1207; infra Section III.B. Thus, the Court finds that Plaintiffs have put forth sufficient evidence to preclude summary judgment on this basis. B. Consent to Physical Examinations of J.S. and V.S. As discussed above, parental consent or judicial approval is generally required before children may be subjected to investigatory physical examinations. Wallis, 202 F.3d at 1141. Judicial approval was not obtained here, and it is undisputed that Plaintiffs consented in writing for J.S. and orally for V.S. to the performance of certain medical services. (ECF No. 52-3 at 2.) The question then turns to whether Plaintiffs’ consent encompasses the examinations complained of. Prior to admission to the UC Davis Medical Center, Fleshman signed a medical consent form for J.S. which read: I consent to any medical treatments or procedures, X-ray examinations, drawing blood for tests, medications, injections, taking of medical photographs, videotaping, laboratory procedures, and hospital services (except for those which require special consent) rendered to me under the general and special instructions of the attending physicians, or other physicians of UCDHS assisting in my care. (ECF No. 43-3, Ex. A.) Plaintiffs also orally consented to medical care for V.S. after local authorities placed her into protective custody. (ECF No. 52-3 at 4.) Defendant argues that by virtue of Plaintiffs providing consent, both written and oral, for J.S. and V.S., their claim of “unwarranted, non-consensual physical examination is nonviable.” (ECF No. 43-1 at 6.) Plaintiffs, on the other hand, contend Defendant exceeded the scope of the consent that was given to her by ordering the physical examinations of J.S. and V.S. (ECF No. 52 at 5–6; ECF No. 52-2 at 2–3.) Specifically, Plaintiffs maintain consent for J.S. was given for the sole purpose of treating his injured mouth, and consent for V.S. was given only if a medical need presented itself, which they contend had not. (ECF No. 52 at 5–6; ECF No. 52-2 at 2–3.) Plaintiffs support their position with a declaration from Fleshman that outlines the circumstances surrounding the consent she gave for the treatment of J.S. and V.S. and the purported limits thereto. (See ECF No. 52–2.) The Court finds that a genuine dispute exists as to whether Plaintiffs consented to the physical examinations of J.S. and V.S. The question of whether the scope of consent was exceeded is a factual one. See, e.g., United States v. Rubio, 727 F.2d 786, 797 (9th Cir. 1983); Lucero v. Donovan, 354 F.2d 16, 20 (9th Cir. 1965). Plaintiffs submitted a declaration from Fleshman that reads, in pertinent part: 2. On or about June 25, 2017, my husband and I brought our son to UC Davis medical center for care and treatment of bleeding in his mouth. As part of our admission to the hospital I was asked to sign a document to allow the medical doctors to provide needed medical care and treatment for the injury which my son had sustained. 3. At no time did anyone advise or indicate to me that this document would authorize anything other than for the necessary medical care and treatment for my sons injury. 5. Had anyone indicted that this document would authorize anything other than for the care and treatment of the bleeding from the mouth that my son was experiencing, I would not have signed the document. 6. [R]epresentatives of CPS removed my child [V.S.] from my custody. I was asked if in the event of injury or medical need I would allow doctors to treat the medical needs of my child. As a concerned mother I certainly wanted my new born daughter to receive medical care in the event of injury or disease and I consented to such care. 7. What I did not consent to was for CPS and medical doctors to have conspired to remove my child from my custody in order to conduct investigative and forensic examinations to assist in their investigation of alleged child abuse. (ECF No. 52-2.) While a self-serving declaration ordinarily is insufficient to create a genuine issue of material fact, see F.T.C., 104 F.3d at 1171, Fleshman’s declaration is not conclusory, and it provides a detailed recitation of her version of events. Moreover, consent is an affirmative defense that Defendant will have to prove at trial, not Plaintiffs. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (party asserting affirmative defense has burden of proof). Had the burden of proving a lack of consent rested with Plaintiffs, summary judgment may have been appropriate. See Celotex Corp., 477 U.S. at 322 (“Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”) But this is not the case. Thus, the Court finds that a genuine dispute exists as to whether Plaintiffs consented to the physical examinations of J.S. and V.S. /// /// /// /// /// C. State Action7 To prevail in an action brought under § 1983, a plaintiff “must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). Defendant contends she is not a state actor, and therefore cannot be liable, because she is a private physician not employed by any governmental entity. (ECF No. 43-1 at 7.) Defendant further contends that she did not act under color of state law because any action she took did not significantly involve the state. (ECF No. 43-1 at 7–12.) Plaintiffs disagree and argue that Defendant acted under color of state law because she cooperated extensively with the government (i.e., law enforcement, UC Davis medical staff, and county social workers) on forensic matters, including ordering the physical examinations of J.S. and V.S. (ECF No. 52 at 7–10.) In support of their argument, Plaintiffs again rely on the Sacramento County Child Protective Services daily service logs which document the numerous interactions Defendant had with government officials. (See ECF No. 52-1, Ex. A.) “Like the state-action requirement of the Fourteenth Amendment, the under-color-of- state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful[.]’” Sullivan, 526 U.S. at 50 (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “Action taken by private individuals may be ‘under color of state law’ where there is ‘significant’ state involvement in the action.” Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983). The Supreme Court has articulated a number of tests to determine when action taken by private individuals significantly involves the state. See, e.g., Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001) (governmental nexus test); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (joint action test); Marsh v. Alabama, 326 U.S. 501 (1946) (public function test); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) (state
7 The parties dispute whether Defendant is a state actor and whether she acted under color of state law. (See ECF No. 43-1 at 7–12; ECF No. 52 at 7–9.) While related, these two concepts are distinct. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982). Nevertheless, “[w]here, as here, deprivations of rights under the Fourteenth Amendment are alleged, these two requirements converge.” Sullivan, 526 U.S. at 50 n.8. The Court therefore addresses these two concepts together. compulsion test). Of these tests, two merit closer consideration: the joint action and governmental nexus tests. Under the joint action test, a private party acts under color of state law if “he is a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980). Under the governmental nexus test, a private party acts under color of state law if “there is a sufficiently close nexus between the State and the challenged action . . . so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974). Applying the joint action and governmental nexus tests, the Court finds that Plaintiffs have produced sufficient evidence to create a genuine dispute as to whether Defendant acted under color of state law. While there is no binding precedent directly on point, a few cases from the Second Circuit are instructive. In Kia P. v. McIntyre, 235 F.3d 749 (2d Cir. 2000), the Second Circuit found that a private hospital was not a state actor when it admitted and treated a minor for possible methadone withdrawal but was a state actor when it held the child after he or she was medically cleared while it waited for a response from the child welfare administration regarding the child. Specifically, the court found the hospital was a state actor under § 1983 to the extent it was acting as part of the reporting and enforcement machinery for the child welfare administration — a government agency charged with the detection and prevention of child abuse and neglect. Id. at 756–57. Similarly, in Estiverne v. Esernio-Jenssen, 833 F. Supp. 2d 356 (E.D. N.Y. 2011), the district court found that a private hospital is not subject to liability under § 1983 when it admits a child for medical reasons, even if possible abuse partially informs the decision to admit. When the hospital continues to detain a child for investigatory purposes after medical treatment has concluded, however, the hospital becomes part of the reporting and enforcement machinery of the state, and thus, a state actor under § 1983. Id. at 367–68. In the instant case, it is undisputed that law enforcement placed J.S. into protective custody after Plaintiffs brought him to the UC Davis Medical Center to treat his injured mouth. (ECF No. 52–3 at 2.) While in protective custody, Defendant ostensibly ordered J.S.’s bone survey after UC Davis medical staff treated him for his mouth injury. (See ECF No. 52-1, Ex. A at 6, 12.) The following day, county social workers, with the assistance of law enforcement, placed V.S. into protective custody and Defendant ostensibly ordered a bone survey for her too, despite V.S. not presenting with any medical need. (Id.) Plaintiffs contend that Defendant was a willful participant in joint action with the social workers responsible for investigating possible abuse, and therefore, part of the reporting and enforcement machinery of the state. (ECF No. 52 at 7–10.) A reasonable jury could conclude that the evidence Planitiffs produced supports such a finding. (See ECF No. 52-1, Ex. A.) Thus, the Court finds a genuine dispute exists as to whether Defendant acted under color of state law. D. Qualified Immunity. Finally, Defendant contends that even if she acted under color of state law, she is entitled to qualified immunity. (See ECF No. 43-1 at 12–13.) In opposition, Plaintiffs argue Defendant is not entitled to qualified immunity because she violated clearly established federal law. (ECF No. 52 at 10–12.) “Qualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government’s ability to perform its traditional functions.” Wyatt v. Cole, 504 U.S. 158, 167 (1992). The Supreme Court has recognized “qualified immunity for government officials where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service.” Id. These rationales, however, “are not transferable to private parties.” Id. at 168. Thus, private parties sued under § 1983 may not avail themselves of qualified immunity. Id. at 168–69; Danielson v. Inslee, 945 F.3d 1096, 1099 (9th Cir. 2019) (“The Supreme Court has held that private parties sued under 42 U.S.C. § 1983 cannot claim qualified immunity . . . .”). Accordingly, because it is undisputed Defendant is a private party, the Court finds that Defendant is not entitled to qualified immunity as a matter of law. /// /// For the foregoing reasons, Defendant’s Motion for Summary Judgment is DENIED. (ECF No. 43.) The parties are ORDERED to file a Joint Status Report not later than thirty (30) days of the electronic filing of this Order indicating their readiness to proceed to trial and proposing trial dates. ry / IT IS SO ORDERED. | jf / \ / ) bia DATED: September 29, 2023 — WW VX Troy L. Nunley } United States District Judge 13