Sitton v. LVMPD

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * WILL SITTON, Case No. 2:17-CV-111 JCM (VCF) 8 Plaintiff(s), ORDER 9 v. LVMPD, et al., 11 Defendant(s).

13 Presently before the court are defendant NaphCare, Inc.’s (“NaphCare”) motion for summary judgment and supplemental motion for summary judgment. (ECF Nos. 168, 265).

15 Plaintiff Will Sitton (“Sitton”) responded in opposition. (ECF No. 278). NaphCare did not reply and the time to do so has passed. See LR 7-2(b).

17 Also before the court is Sitton’s motion to strike exhibits within NaphCare’s motions.

18 NaphCare responded in opposition (ECF No. 271), to which Sitton replied (ECF No. 272).

19 Also before the court is NaphCare’s motion for leave to file a surreply to Sitton’s reply (ECF No. 272). (ECF No. 274). Sitton responded in opposition. (ECF No. 275).

21 Also before the court is Sitton’s motion for leave to file under seal his response to NaphCare’s supplemental motion. (ECF No. 278). NaphCare responded in opposition with a countermotion to strike Sitton’s response and to impose sanctions. (ECF No. 281). Sitton responded to NaphCare’s countermotion (ECF No. 282), to which NaphCare replied (ECF No. 283).

26 I. BACKGROUND 27 This matter concerns Sitton’s medical treatment during his time as a pretrial detainee in the Clark County Detention Center (“CCDC”).

1 In 2009, Sitton arrived in the custody of CCDC pending his criminal trial in the Eighth Judicial District Court of Nevada. During Sitton’s time in custody, NaphCare doctor, Dr. Zinser, treated Sitton with pain and anti-inflammatory medication for Sitton’s arthritis-related knee pain. This treatment continued until Dr. Zinser resigned in March 2015.

5 In January 2017, Sitton brought this action alleging that NaphCare unconstitutionally refused to properly treat him after Dr. Zinser’s retirement. (ECF No. 13 at 52–55). At the motion to dismiss stage, the court dismissed several of Sitton’s claims against NaphCare as time barred. (ECF No. 114).

9 Sitton’s remaining claims against NaphCare regard NaphCare’s alleged policy to deny and delay treatment to save on treatment costs and NaphCare’s alleged policy to improperly charge co-pays for treatment to dissuade inmates from receiving proper medical care.

12 NaphCare originally moved for summary judgment in February 2020. (ECF No. 168).

13 After extensive motions, hearings, and discovery disputes, the court entered a protective order preventing the parties from disclosing certain confidential information to non-parties. (ECF Nos. 215, 216). Thereafter, the court ordered NaphCare to supplement its motion for summary judgment (ECF No. 252), which it did on February 16, 2021, (ECF No. 265).

17 Once NaphCare supplemented its motion, the present disputes erupted. Sitton now moves to strike NaphCare’s expert’s reports from its supplemental motion for summary judgment. (ECF No. 268). NaphCare moves for leave to file a surreply to Sitton’s reply regarding that motion to strike. (ECF No. 274). Sitton moves to file his response to NaphCare’s supplemental motion for summary judgment under seal. (ECF No. 278).

22 NaphCare moves to strike Sitton’s response and to impose sanctions for violating the court’s protective order (ECF No. 216). (ECF No. 281).

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1 II. LEGAL STANDARD 2 a. Summary judgment 3 Summary judgment is proper when the record shows that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” 1 Fed. R. Civ. P. 56(a). The purpose of summary judgment is “to isolate and dispose of factually unsupported claims or defenses,” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986), and to avoid unnecessary trials on undisputed facts. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

9 When the moving party bears the burden of proof on a claim or defense, it must produce evidence “which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations omitted). In contrast, when the nonmoving party bears the burden of proof on a claim or defense, the moving party must “either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of [proof] at trial.”

16 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

17 If the moving party satisfies its initial burden, the burden then shifts to the party opposing summary judgment to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). An issue is “genuine” if there is an adequate evidentiary basis on which a reasonable factfinder could find for the nonmoving party and a fact is “material” if it could affect the outcome under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

23 The opposing party does not have to conclusively establish an issue of material fact in its favor. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 26 1 The court can consider information in an inadmissible form at summary judgment if the information itself would be admissible at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001) (“To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.”)).

1 1987). But it must go beyond the pleadings and designate “specific facts” in the evidentiary record that show “there is a genuine issue for trial.” Celotex, 477 U.S. at 324. In other words, the opposing party must show that a judge or jury has to resolve the parties’ differing versions of the truth. T.W. Elec. Serv., 809 F.2d at 630.

5 The court must view all facts and draw all inferences in the light most favorable to the nonmoving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990); Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). The court’s role is not to weigh the evidence but to determine whether a genuine dispute exists for trial. Anderson, 477 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted.

12 See id. at 249–50.

13 b. Strike 14 “It is well established that ‘[d]istrict courts have inherent power to control their docket.’ ” Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir. 1998) (alteration in original) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998)). This includes the power to strike items from the docket as a sanction for litigation conduct. See, e.g., Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 586–87, 588 (9th Cir. 2008) (discussing, but declining to rule on, the ability of a district court to strike documents submitted as exhibits to a motion); Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224–26 (9th Cir. 2005) (upholding a district court's grant of a motion to strike deposition corrections and a declaration as a sanction when a party had violated FED. R. CIV. P. 30(e)); cf. Carrigan v. Cal. State Legislature, 263 F.2d 560, 564 (9th Cir. 1959) (discussing an appellate court’s inherent power to strike briefs and pleadings “as either scandalous, impertinent, scurrilous, and/or without relevancy”).

26 III. DISCUSSION 27 First, to determine whether the court need review summary judgment on the merits, the court addresses Sitton’s motion to seal his response (ECF No. 278) and NaphCare’s countermotion to strike that response (ECF No. 281). Next, to determine what information the court relies on in determining summary judgment, the court addresses Sitton’s motion to strike NaphCare’s expert’s report and testimony (ECF No. 268) and NaphCare’s motion for leave to file a surreply regarding that motion to strike (ECF No. 274). Finally, the court turns to the merits of NaphCare’s motion for summary judgment and supplemental motion for summary judgment. (ECF Nos. 168, 265).

7 a. Sitton’s motion to file his response under seal (ECF No. 278) and NaphCare’s motion to strike Sitton’s response and impose sanctions (ECF No. 281) Starting with NaphCare’s motion to strike (ECF No. 281), NaphCare argues that this court should impose case-dispositive sanctions on Sitton for violating the court’s protective order.

On April 5, 2021, the court held a hearing on Sitton’s motion requesting direction from the court regarding its protective order (ECF No. 258). There, the court informed Sitton that he could file his documents under seal without an accompanying motion to seal. (ECF No. 273). Sitton took that instruction to mean that his filings would automatically be sealed upon his filing and filed a response to a different motion for summary judgment in this matter on the public record. (ECF No. 276).

When that response was not automatically sealed, Sitton took additional measures to file this response under seal by filing a motion to seal and attaching his response to it. (ECF No. 278). NaphCare now argues that this public filing constitutes a willful violation of the court’s protective order and justifies dismissing this case entirely. (ECF No. 281). The court disagrees.

Sitton did not file the motion absent a motion to seal, nor did he forget to file under seal or redact. Sitton explicitly relayed to the court that he filed under an abundance of caution in an effort to abide by the protective order. This is not an inadvertent mistake, nor is it willful.

This is a pro se litigant’s fundamental misunderstanding of, or inability to access, the court’s electronic filing system.2 The court liberally construes Sitton’s attempt to file under seal as complying with the court’s protective order. Thus, the court does not impose case-dispositive sanctions for Sitton’s violation of the protective order.3 4 As to the response itself, the court GRANTS Sitton’s motion to file the response under seal. (ECF No. 278). Rather than strike, detach, or otherwise refile, the court instructs the clerk to seal ECF No. 278 and designate it as Sitton’s response to NaphCare’s supplemental motion for summary judgment at ECF No. 265.

8 b. Sitton’s motion to strike Dr. Fowlkes’s reports (ECF No. 268) and NaphCare’s motion for leave to file surreply (ECF No. 274) Sitton argues that the court should strike the report and testimony of NaphCare’s expert witness, Dr. Fowlkes, because NaphCare violated the court’s protective order (ECF No. 216) and because Dr. Fowlkes is not qualified to offer expert opinions in this matter. (ECF No. 268).

First, as to the protective order, Sitton ignores the spirit and purpose of the protective order. While Sitton argues that NaphCare’s internal cataloging system reveals that Dr. Fowlkes reviewed confidential information before signing his declaration under the protective order, the court is not concerned with parties’ sharing their own confidential information with their own experts who were already disclosed and had already reviewed the information before the protective order was issued. Further, the court did not construct the protective order to imbue the parties with veto power over their opponents’ experts.

Regardless of when Dr. Fowlkes received the information and signed his declaration, NaphCare’s disclosure of its own produced discovery does not threaten the confidentiality of the information contained therein—especially considering that Sitton attached nearly all that confidential material to a public filing just after filing the present motion. (ECF No. 278); Sitton describes in his motion requesting direction from the court (ECF No. 258) that the filing processes at his prison are complicated. Further, Sitton has never filed any documents under seal in this matter; he may lack the ability to do so.

3 This decision benefits NaphCare in that it allows the court to address the merits of this case. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors disposition of cases on the merits.”).

1 supra Part III.A. Accordingly, the court declines to impose sanctions against NaphCare. (ECF No. 216 at 5 (providing that the court “may” issue sanctions for violating the protective order)).

3 Next, as to Sitton’s evidentiary objections, Sitton argues that Dr. Fowlkes is not competent and that his report is unreliable and irrelevant. (ECF No. 268). Specifically, Sitton argues that Dr. Fowlkes is not competent in the field of orthopedic care and cannot testify as to the cause of Sitton’s arthritis. Further, Dr. Fowlkes’s report is not reliable because it draws inferences solely from the record instead of independent medical processes, and Dr. Fowlkes improperly opines the legal conclusion that NaphCare was not deliberately indifferent. (ECF No. 268 at 3–9).

10 Dr. Fowlkes’s CV shows that he has extensive experience establishing his competency in the field of correctional healthcare. Dr. Fowlkes is an emergency medicine specialist, addiction specialist, and correctional healthcare specialist who has testified as an expert in those fields on dozens of cases. Thus, Dr. Fowlkes’s original report properly opines on the standards of care given by NaphCare’s medical employees, a field he is well versed in.

15 However, Dr. Fowlkes’s supplemental report provides specific opinions regarding the presence and cause of Sitton’s arthritis, a field Dr. Fowlkes does not claim to be an expert in.

17 Specifically, Dr. Fowlkes states as a matter of fact that Sitton’s arthritis has been present for years and is not related to any specific trauma. (ECF No. 265-3 ¶ 7). While Dr. Fowlkes may have drawn this conclusion from Sitton’s medical examinations on the record, the court cannot see how Dr. Fowlkes’s is qualified to determine or rule out what caused Sitton’s arthritis.

21 Thus, the court strikes paragraph seven4 of Dr. Fowlkes’s supplemental report. (ECF No. 265- 3 ¶ 7).

23 As to Sitton’s relevance arguments, the court is not persuaded to strike Dr. Fowlkes’s report. As previously discussed, Dr. Fowlkes has substantial experience in the field of correctional healthcare. To the extent that Dr. Fowlkes opines on the level of care NaphCare 27 4 While other portions of Dr. Fowlkes’s report comment upon Sitton’s arthritis, those portions are based on Dr. Fowlkes’s observations from the record. Dr. Fowlkes’s is qualified to testify upon his observations of a correctional healthcare provider’s medical treatment.

Thus, the court does not strike any other portions of his report.

1 and its employees gave to Sitton, including whether that level of care amounts to what Dr. Fowlkes’s considers within the acceptable standard of care, he is permitted to testify as an expert.

4 This relevance argument and Sitton’s remaining arguments concerning Dr. Fowlkes’s “reliability” concern Dr. Fowlkes’s credibility. (See e.g., ECF No. 268 at 4 (“[Dr. Fowlkes] testified for the defense 70% of the time in “in custody” cases . . . . He makes more money as an expert than . . . as a medical doctor.”)).

8 Exclusion of expert testimony is proper only when such testimony is irrelevant or unreliable because “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 12 44, 61 (1987). Sitton’s remaining concerns are thus best addressed by the trier of fact during trial, not the court during a motion to strike. Accordingly, the court will not strike the remaining portions of Dr. Fowlkes’s report and supplemental report.

15 Finally, the court will not entertain Sitton’s entirely speculative allegation that NaphCare engaged in fraud and deceit in providing the court with Dr. Fowlkes’s report and declaration. (See ECF No. 272). Thus, the court DENIES NaphCare’s motion for leave to file a surreply as it is unnecessary. (ECF No. 274).

19 c. NaphCare’s motions for summary judgment (ECF Nos. 168, 265) 20 As an initial matter, instead of replying to Sitton’s response (ECF No. 278), NaphCare moved for sanctions regarding Sitton’s improper filing. (See ECF Nos. 281, 283; supra Part III.A). The time to reply to Sitton’s response has long passed and NaphCare never moved to extend the reply deadline. Thus, the court reads NaphCare’s supplemental motion (ECF No. 265) and Sitton’s response (ECF No. 278) without a reply.

25 Sitton’s claim against NaphCare contains two main allegations of Fourteenth Amendment due process violations. (ECF No. 13, 14). First, Sitton alleges that NaphCare operated under a standard practice of delaying medical care until it was absolutely necessary so NaphCare could avoid the costs of treatment. Second, Sitton alleges that NaphCare imposed a policy regarding medical co-pays which forced Sitton to choose between receiving medical care and buying food at the prison’s commissary.

3 Sitton brings his claim under 42 U.S.C. § 1983 (“Section 1983”), which “provides a remedy to individuals whose constitutional rights have been violated by persons acting under color of state law.” Caballero v. Concord, 956 F.2d 204, 206 (9th Cir. 1992). Thus, to prevail on his claim under Section 1983, Sitton must show that 1) NaphCare acted under color of state law while committing the conduct at issue, and 2) the conduct deprived Sitton of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C. § 9 1983; Shah v. City of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986).

10 NaphCare does not dispute that it acted under color of state law while providing medical treatment to prisoners and pretrial detainees at CCDC. As a private entity contracted with a state prison, NaphCare acted as a municipality, not as an individual. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138-39 (9th Cir. 2012). Thus, the court’s analysis focuses on whether NaphCare deprived Sitton of a constitutional right and, if it did, whether NaphCare is liable for that deprivation as a municipality. See Monell v. Dep’t of Social Services, 436 U.S. 658, 698 (1978).

17 To prevail on his Monell claim, Sitton must show 1) he was deprived of a constitutional right; 2) NaphCare had a policy or custom; 3) the policy or custom amounted to deliberate indifference to Sitton’s constitutional right; and 4) the policy or custom was the moving force behind the constitutional violation. See Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1110– 11 (9th Cir. 2001).

22 The Ninth Circuit has held that a plaintiff can establish a municipal policy by demonstrating one of the following: 24 (1) the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government 25 entity; (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an 26 official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate.

Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (quotation marks and citations omitted).

1 A plaintiff may also prove a de facto municipal policy or custom existed but cannot prove it based only on random acts or isolated events. Thompson v. City of Los Angeles, 885 3 F.2d 1439, 1444 (9th Cir. 1989). Rather, there must be a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law.” City of St. Louis v. Praprotnik, 485 6 U.S. 112, 127 (1988); Nadell v. Las Vegas Metro. Police Dept., 268 F.3d 924, 929 (9th Cir. 2001).

8 Here, Sitton alleges he was deprived of his due process right under the Fourteenth Amendment to be free from the cruel and unusual punishment of denied and delayed medical care under an Eighth Amendment framework. As the court previously discussed in its screening order: 12 A pretrial detainee’s right to be free from punishment is grounded in the Due Process Clause, but courts borrow from Eighth Amendment jurisprudence 13 when analyzing the rights of pretrial detainees. See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008). . . .

14 The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized 15 standards, humanity, and decency.’ ” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with 16 “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment 17 violation, a plaintiff must satisfy both an objective standard—that the deprivation was serious enough to constitute cruel and unusual punishment— 18 and a subjective standard—deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). (ECF No. 14 at 16).

“Denial of medical attention to prisoners constitutes an [E]ighth [A]mendment violation if the denial amounts to deliberate indifference to serious medical needs of the prisoners.” Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002).

Delay of, or interference with, medical treatment can also amount to deliberate indifference. See Jett, 439 F.3d at 1096; Hallett, 296 F.3d at 744. Where the prisoner is alleging that delay of medical treatment evinces deliberate indifference, however, the prisoner must show that the delay led to further injury. See Hallett, 296 F.3d at 745–46; Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).

3 Charging prisoners fees for medical services does not violate the Eighth Amendment unless it prevents prisoners from receiving medical care. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985) (per curiam).

6 It is not sufficient for a plaintiff to identify a custom or policy, attributable to the municipality, that caused his injury. A plaintiff must also demonstrate that the custom or policy was adhered to with “deliberate indifference to the constitutional rights of [the jail's] inhabitants.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (quoting City of Canton, 489 U.S. at 392).

11 Here, even assuming, arguendo, that Sitton’s treatment constitutes a deprivation of due process under the objective prong of an Eighth Amendment analysis (see ECF No. 278), he still fails to establish a claim against NaphCare under a theory of municipal liability.

14 1. Sitton fails to show NaphCare had a policy to delay and deny treatment 15 Sitton supports his argument that NaphCare had a policy to delay medical treatment by citing to a deposition taken in another case where a NaphCare doctor described that his requests for additional care were often denied. (ECF No. 278 at 28). Specifically, the doctor explained that he would occasionally recommend a treatment that he felt was “necessary to [sic] good healthcare for that patient” that ended up being denied. (ECF No. 278-1 at 101).

20 Sitton argues that NaphCare’s doctor’s deposition, coupled with NaphCare’s publicly stated “core value” to provide “high-quality care, personalized support, and cost-saving solutions while always meeting or exceeding constitutional standards” is enough for a reasonable juror to infer deliberate indifference from NaphCare. (ECF Nos. 278 at 28; 278-1 at 99).

25 Even drawing all reasonable inferences in favor of Sitton, that evidence is insufficient to establish that a NaphCare policy constituted deliberate indifference. In the same deposition, NaphCare’s doctor stated that he was never prevented from ordering what he considered medically necessary treatment and would send a patient to the emergency room if there was something he felt was medically necessary. (ECF No. 278-1 at 101).

3 Further, Sitton fails to provide any evidence supporting an inference that NaphCare’s alleged policy resulted in the denial of Sitton’s medical treatment as recommended by Dr. Zinser. Sitton instead complains that NaphCare’s employees did not provide the treatment he personally requested, referring mainly to his own medical “kites”—his inmate grievances submitted to medical personnel at CCDC—where he complains of his knee pain and demands better treatment from NaphCare’s employees.

9 Through these grievances, Sitton consistently requested pain medication and complained of the lack of effectiveness from the current treatments. His grievances were all met with comments from staff, sometimes informing him that he is scheduled to meet with a doctor for treatment review and sometimes informing him that his treatment will or will not be changed based on his complaints.

14 Sitton’s grievances span over a year. During that time, NaphCare employees modified Sitton’s medication several times, never quite matching the dosage and frequency Dr. Zinser prescribed for Sitton’s pain before resigning in 2015. However, also during this time, Sitton obtained X-rays and diagnosis regarding his arthritis. The record thus shows that the medical staff was actively treating Sitton according to their own views of his medical needs.

19 Instead of bringing this action against any of the NaphCare employees who allegedly gave Sitton inadequate treatment, Sitton sues NaphCare as a municipality. Yet, Sitton fails to establish that NaphCare had a policy in place to delay treatment. NaphCare cannot be liable for the independent decisions of its medical personnel absent some proof of a policy which controlled the employees’ actions.

24 Even if NaphCare could be liable for its employees differing opinions, Sitton would have to show that the course of treatment NaphCare’s doctors chose was medically unacceptable under the circumstances and that the doctors chose this course in conscious disregard of an excessive risk to Sitton’s health. Here, Sitton fails to provide evidence to establish either requirement.

1 The course of treatment the doctors chose was similar to Dr. Zinser’s, albeit less frequent and intense. While the doctors may have taken this course of action in conscious disregard of Sitton’s arthritis, Sitton provides no evidence that this treatment was medically unacceptable. In fact, Sitton’s care at the Ely State Prison, where he was transferred after his time at CCDC, increased only to the point where he received anti-inflammatory injections as well as medication. No specialist surgery or NaphCare-denied accommodations were ordered and Sitton provides no testimony or evidence that the pain medication he was on was medically unacceptable. Thus, Sitton’s deliberate indifference claim fails as a matter of law under a theory of difference in medical opinion.

10 Sitton also argues that NaphCare’s policy is evidenced by Dr. Zinser’s resigning in 2015. (ECF No. 278 at 28). Sitton supports his argument by citing to his own deposition, where he speculated that Dr. Zinser was going to do more tests but ended up quitting NaphCare. (Id.). Yet, Sitton’s attached exhibit, purportedly Dr. Zinser’s resignation letter, states simply “This is my official resignation notice.” (ECF No. 278-2 at 6). This notice, absent any testimony from Dr. Zinser, is insufficient for any reasonable juror to draw an inference of Dr. Zinser resigning over NaphCare’s alleged policy.

17 Finally, and crucially, Sitton provides no evidence to support a finding that NaphCare’s alleged deliberate indifference led to further injury. Arthritis is a degenerative condition that naturally worsens with time. Considering that Sitton’s only prescribed remedy at any point under any doctor was pain and anti-inflamatory medication, Sitton fails to establish that his arthritis worsened because of NaphCare’s alleged policy to delay and deny treatment.

22 Without some evidence that NaphCare overrode the recommendation of a doctor in spite of medical evidence, Sitton simply fails to establish any genuine question of material fact as to whether NaphCare had a policy to delay or deny treatment, enforced this policy, or that the policy caused Sitton further injury. Accordingly, Sitton’s claim that NaphCare had a policy to delay medical treatment in deliberate indifference to his medical needs does not survive summary judgment.

28 . . .

1 2. Sitton fails to show that NaphCare had a policy to impose co-pays to dissuade inmates from seeking medical treatment As to Sitton’s claim regarding NaphCare’s alleged co-pay policy, Sitton fails to establish that NaphCare had any such policy. Sitton points to two sections of NaphCare’s policy book that reference payments to establish that NaphCare did have some policy regarding co-pays. However, both of those sections explicitly state that co-pays shall not be a barrier for care and that a payment will not be charged under certain circumstances. Sitton points to no policy from NaphCare where co-pays are required.

Sitton does provide evidence that he was charged for some of his medical visits. (ECF No. 13 at 56–92). The co-pay fee Sitton complains of is a $3.00 charge that NaphCare charged Sitton on several occasions between 2015 and 2016. However, no reasonable inference can be drawn to establish that these charges deprived Sitton of medical treatment.

After extensive discovery, Sitton’s entire claim for excessive co-pays relies on his own self-serving deposition, which itself relies on hearsay from unknown declarants, and a scribbled notice of termination from his previous physician. Sitton provides no documents, testimony from inmates or medical staff, or any scintilla of evidence that NaphCare propagated a policy to charge excessive co-pays that prevented Sitton from receiving medical treatment.

At most, the co-pay is a minor charge for a visit with the medical staff. However, the record shows that the charges were waived or reimbursed on nearly every occasion upon Sitton’s request. (See ECF Nos. 278-1 at 139–142, 278-2 at 1–4). Thus, Sitton’s claim that the co-pay constituted a policy fails as a matter of law.

Accordingly, even viewing all facts and drawing all reasonable inferences in Sitton’s favor, no reasonable juror could find in favor of Sitton’s claims that NaphCare had a policy to purposefully impose co-pays that was deliberately indifferent to Sitton’s care or prevented him from receiving care. Therefore, Sitton’s claim fails as a matter of law.5 . . .

5 Due to these crucial failures, Sitton fails to establish a claim under either the Gordon or Castro standard. A Monell claim cannot survive summary judgment absent some scintilla of evidence that a policy existed, defacto or otherwise.

1) IV. CONCLUSION 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that NaphCare’s motion 4| for summary judgment and supplemental motion for summary judgment (ECF No. 168, 265) | be, and the same hereby are, GRANTED.

6 IT IS FURTHER ORDERED that Sitton’s motion to strike exhibits (ECF No. 268) is | GRANTED in part and DENIED in part. Paragraph seven of Dr. Fowlkes’s supplemental | report (ECF No. 265-3 § 7) is stricken.

9 IT IS FURTHER ORDERED that NaphCare’s motion for leave to file a surreply (ECF 10} No. 274) is DENIED.

11 IT IS FURTHER ORDERED that Sitton’s motion for leave to file under seal (ECF No. 12} 278)is GRANTED. The clerk is instructed to file ECF No. 278 under seal and redesignate it | as aresponse to NaphCare’s supplemental motion for summary judgment (ECF No. 265).

14 IT IS FURTHER ORDERED that NaphCare’s countermotion to strike and impose | sanctions (ECF No. 281) is DENIED.

16 The clerk is instructed to enter judgment in favor of NaphCare.

17 DATED November 18, 2021.

18 tis ©. Atala 19 UNITED)STATES DISTRICT JUDGE es C. Mahan District Judge -15-