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Untreated Diabetic Los Angeles Jail Detainee May Sue for Failure to Provide Medical Care
by John E. Dannenberg
The California Court of Appeal, Second District, has held that a diabetic Los Angeles jail detainee who was denied medical care for over 24 hours could sue the Los Angeles Sheriff’s Dept. (LASD) under 42 U.S.C. § 1983 and Cal. Gov’t. Code § 845.6. However, the LASD was immune from suit under a vicarious liability theory for medical malpractice.
Christopher G. Franklin, 33, had been a diagnosed Type 1 diabetic since age 18. At 6:30 p.m. on June 9, 2004, he was arrested and jailed on robbery charges (which were later dropped). At the time of his arrest he was wearing an insulin pump, which maintains normal blood glucose levels by testing and injecting insulin as needed. Complications from untreated Type 1 diabetes are extremely serious, affecting a person’s vision, nerves, kidneys, blood vessels and heart.
Although Franklin filled out a medical screening form at booking, he was not seen by LASD medical personnel until 22 hours later. In the meantime, at 10 p.m. on June 9, he was already vomiting due to hyperglycemia (high blood sugar), whereupon his insulin pump was confiscated despite his pleas for medical care. Franklin vomited in the presence of LASD deputies five times; one “poorly trained” deputy laughed and asked what drug he was taking. Franklin was unable to call his family for help because the jail phones were non-functional.
The removal of the insulin pump caused Franklin immediate pain, aching kidneys, blurred vision and dehydration. As a result he could not eat any food. Finally, after 22 hours at the jail, he convinced LASD medical staff to perform a blood glucose test. His reading of 450 milligrams/deciliter was deemed “deadly” (80 to 140 ml/dl is considered normal). It took another 2.5 hours before he received insulin. As a result of the denial of his glucose pump and insulin, Franklin developed nerve damage, chronic kidney pain, loss of feeling in his feet and legs, diabetes-related impotence and blurred vision.
Franklin sued the LASD in the Los Angeles Superior Court under 42 U.S.C. § 1983 and state law, alleging actual injury resulting from the failure to provide medical care. The superior court granted LASD’s motion for summary judgment on each cause of action, concluding that Franklin had not established a constitutional violation and there was “no evidence to suggest that [he] was suffering from a serious or obvious medical condition.” The same court ruled that LASD had not violated its own policies, and was immune from suit for medical malpractice under a theory of vicarious liability. Franklin filed a pro se appeal.
In an unpublished ruling, the appellate court disagreed as to Franklin’s first two claims. The Court recognized his constitutional right to proper medical care, but noted that he must also prove deliberate conduct on the part of LASD. Such deliberate indifference may be proven by the failure to perform an obvious duty. The Court found that LASD doctors knew full well the dangers from untreated Type 1 diabetes, and their failure to provide Franklin with the medical care he needed could not withstand scrutiny.
Accordingly, the Court of Appeal reversed the superior court’s summary judgment ruling as to the constitutional claims, but upheld summary judgment on the medical malpractice claim. This was not a ruling on the merits of the case. See: Franklin v. LASD, Second District Court of Appeal, Case No. B188839; 2007 Cal.App. Unpub. LEXIS 606 (Cal.App. 2d Dist. 2007).
The California Court of Appeal, Second District, has held that a diabetic Los Angeles jail detainee who was denied medical care for over 24 hours could sue the Los Angeles Sheriff’s Dept. (LASD) under 42 U.S.C. § 1983 and Cal. Gov’t. Code § 845.6. However, the LASD was immune from suit under a vicarious liability theory for medical malpractice.
Christopher G. Franklin, 33, had been a diagnosed Type 1 diabetic since age 18. At 6:30 p.m. on June 9, 2004, he was arrested and jailed on robbery charges (which were later dropped). At the time of his arrest he was wearing an insulin pump, which maintains normal blood glucose levels by testing and injecting insulin as needed. Complications from untreated Type 1 diabetes are extremely serious, affecting a person’s vision, nerves, kidneys, blood vessels and heart.
Although Franklin filled out a medical screening form at booking, he was not seen by LASD medical personnel until 22 hours later. In the meantime, at 10 p.m. on June 9, he was already vomiting due to hyperglycemia (high blood sugar), whereupon his insulin pump was confiscated despite his pleas for medical care. Franklin vomited in the presence of LASD deputies five times; one “poorly trained” deputy laughed and asked what drug he was taking. Franklin was unable to call his family for help because the jail phones were non-functional.
The removal of the insulin pump caused Franklin immediate pain, aching kidneys, blurred vision and dehydration. As a result he could not eat any food. Finally, after 22 hours at the jail, he convinced LASD medical staff to perform a blood glucose test. His reading of 450 milligrams/deciliter was deemed “deadly” (80 to 140 ml/dl is considered normal). It took another 2.5 hours before he received insulin. As a result of the denial of his glucose pump and insulin, Franklin developed nerve damage, chronic kidney pain, loss of feeling in his feet and legs, diabetes-related impotence and blurred vision.
Franklin sued the LASD in the Los Angeles Superior Court under 42 U.S.C. § 1983 and state law, alleging actual injury resulting from the failure to provide medical care. The superior court granted LASD’s motion for summary judgment on each cause of action, concluding that Franklin had not established a constitutional violation and there was “no evidence to suggest that [he] was suffering from a serious or obvious medical condition.” The same court ruled that LASD had not violated its own policies, and was immune from suit for medical malpractice under a theory of vicarious liability. Franklin filed a pro se appeal.
In an unpublished ruling, the appellate court disagreed as to Franklin’s first two claims. The Court recognized his constitutional right to proper medical care, but noted that he must also prove deliberate conduct on the part of LASD. Such deliberate indifference may be proven by the failure to perform an obvious duty. The Court found that LASD doctors knew full well the dangers from untreated Type 1 diabetes, and their failure to provide Franklin with the medical care he needed could not withstand scrutiny.
Accordingly, the Court of Appeal reversed the superior court’s summary judgment ruling as to the constitutional claims, but upheld summary judgment on the medical malpractice claim. This was not a ruling on the merits of the case. See: Franklin v. LASD, Second District Court of Appeal, Case No. B188839; 2007 Cal.App. Unpub. LEXIS 606 (Cal.App. 2d Dist. 2007).
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Related legal case
Franklin v. LASD
| Year | 2007 |
|---|---|
| Cite | Second District Court of Appeal, Case No. B188839; 2007 Cal.App. Unpub. LEXIS 606 (Cal.App. 2d Dist. 2007) |
| Level | State Court of Appeals |
CHRISTOPHER G. FRANKLIN, Plaintiff and Appellant, v. LOS ANGELES COUNTY SHERIFF'S DEPARTMENT, Defendant and Respondent.
B188839
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
January 25, 2007, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: APPEAL from a judgment and an order of the Superior Court of Los Angeles County, No. BC328616. David L. Minning, Judge.
DISPOSITION: Judgment reversed with directions. Appeal from order dismissed in part and order affirmed.
COUNSEL: Christopher G. Franklin, in pro. per., for Plaintiff and Appellant.
Manning & Marder Kass, Ellrod, Ramirez and Patrick L. Hurley for Defendant and Respondent.
JUDGES: MALLANO, Acting P.J., JACKSON, J. * , VOGEL, J. concurred.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
OPINION BY: MALLANO
OPINION
Plaintiff Christopher Franklin, a type 1 diabetic wearing an insulin pump, was arrested and detained in the Los Angeles County jail for approximately 48 hours. Franklin appeals from a summary judgment entered in favor of defendant Los Angeles County [*2] Sheriff's Department (LASD) on his first amended complaint (complaint), alleging that LASD's medical evaluation and treatment of his diabetes during his period of detention violated federal and state law. We reverse the summary judgment because LASD failed to provide sufficient evidence to warrant judgment in its favor on the causes of action for violation of Franklin's federal constitutional right to medical care (42 U.S.C. § 1983) and for violation of the statutory duty to summon medical care (Gov. Code, § 845.6). But LASD is entitled to prevail on the cause of action for medical malpractice because a government entity is not vicariously liable for the medical malpractice of its employees.
BACKGROUND
In February 2005, Franklin filed an action against LASD, seeking injunctive and monetary relief for personal injuries arising out of his detention at the Los Angeles County jail from 6:30 p.m. on June 9, 2004, to 11:30 p.m. on June 11, 2004, where he was held after his arrest for robbery, which charges were ultimately dismissed. His detailed complaint alleged the following:
In 1990, when he was 18, Franklin was diagnosed with [*3] type 1 diabetes. Franklin must maintain normal blood glucose levels by testing his blood glucose levels eight to twelve times a day with a specialized medical device and by injecting himself with insulin with an insulin pump. By way of tubing and a catheter attached to his abdomen, the insulin pump subcutaneously injected Franklin with insulin on a constant basis. The lack of insulin causes hyperglycemia, or high blood glucose, a condition which induces vomiting and can be life threatening. Hyperglycemia can cause diabetic ketoacidosis, a life-threatening condition. Complications from uncontrolled type 1 diabetes or from the lack of insulin also include nerve damage, eye and kidney diseases, impotence, and heart and blood vessel diseases.
Before his detention in June 2004, Franklin had not experienced any of the complications that can result from uncontrolled diabetes and had a history of excellent control of his diabetes.
At 6:30 p.m. on June 9, officers of the Los Angeles Police Department arrested Franklin and delivered him to the Inmate Reception Center of the Los Angeles County jail. The police officers delivering Franklin had completed a form stating that Franklin was "'wearing [*4] an insulin pump used to treat a diabetic condition.'" The published policy of the LASD states that "'if (an inmate) is already at the Inmate Reception Center at the downtown Los Angeles County Jail, he/she will be screened for mental illness, as well as other health concerns, upon arrival.'" But Franklin was not screened by the LASD or sheriff's medical personnel until 7:30 p.m. on June 10.
At the Inmate Reception Center at 10:00 p.m. on June 9, after Franklin's numerous episodes of vomiting due to hyperglycemia, sheriff's deputies confiscated his insulin pump, notwithstanding his entreaties for insulin and medical screening. On eight occasions before 7:30 p.m. on June 10, Franklin tried to communicate to the LASD and the sheriff's deputies that his health was deteriorating and his life was in danger if he continued to be deprived of insulin. As a result of hyperglycemia, Franklin vomited on five occasions. On one occasion, which was witnessed by sheriff's deputies, one "poorly-trained" deputy laughed and asked Franklin what drug he was using. On six occasions, Franklin tried to use the pay telephones to contact a family member who could inform the deputies that he was in dire medical [*5] need, but the telephones were inoperable or damaged.
After his insulin pump was confiscated, Franklin experienced "dire physical pain including nausea, repeated vomiting and aching within his kidneys as a result of hyperglycemia . . . ." He also lost feeling in his feet, became severely dehydrated, developed blurry vision, and was unable to eat the food provided to him by the jail trustees. Over 22 hours after his arrival at Twin Towers, Franklin was able to convince the sheriff's medical personnel to perform a blood glucose test with a blood glucose monitor. The test revealed a "deadly high glucose level" of 450 milligrams per deciliter (mg/dl), well outside of the normal range, between 80 and 140 mg/dl. After the glucose monitor test, Franklin did not receive any insulin for another 2.5 hours. During the remaining time that he was in custody at Twin Towers, until 11:30 p.m. on June 11, Franklin's blood glucose was tested twice, with both tests showing dangerously high levels - approximately 250 mg/dl and 450 mg/dl. Had Franklin received the proper amount of insulin, his blood glucose levels would have been in the normal range. As a result of the actions and inactions of the LASD, [*6] Franklin developed diabetic neuropathy (nerve damage) and experiences chronic pain in his kidney region, loss of feeling in his feet and legs, diabetes-related impotence, and episodes of blurry vision.
In the first cause of action, labeled "deliberate indifference," Franklin asserted a claim for a violation of his federal constitutional right to medical care under 42 United States Code section 1983 (section 1983). In the second cause of action, labeled "professional negligence," which appears to be a state law claim for violation of Government Code section 845.6 (section 845.6), 1 he alleged that sheriff's deputies failed to enforce prudently and diligently the LASD policy that inmates be medically screened upon arrival at the jail. In the third cause of action, labeled "medical malpractice," Franklin alleged that sheriff's medical personnel failed properly to train the deputies to recognize, treat, and refer hyperglycemic inmates to doctors and that there was no system in place at Twin Towers to ensure that insulin administration and meals were coordinated to prevent hyperglycemia in its diabetic inmates. The foregoing allegations pleaded [*7] a federal civil rights claim under section 1983 based on the failure to train municipal employees. (See Canton v. Harris (1989) 489 U.S. 378, 380 [109 S. Ct. 1197, 56 L. Ed. 2d 611] (Canton) [under certain circumstances a municipality may be liable under section 1983 for violations resulting from its failure to train municipal employees].)
FOOTNOTES
1 Section 845.6 provides in pertinent part: "Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but . . . a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care. . . ."
LASD filed a motion for summary judgment, or in the alternative for summary adjudication with respect to each cause of action. As [*8] to the section 1983 claim, LASD argued that Franklin had not established a constitutional violation and that LASD did not have a custom, policy, or practice that led to any violation of his constitutional rights. With respect to the state law claim under section 845.6, LASD argued that there was "no evidence to suggest that [Franklin] was suffering from a serious or obvious medical condition," that he was in need of "immediate" medical care, or that any sheriff's department employee knew or had reason to know that Franklin was in need of immediate medical care or failed to summon such care. As to the claim for medical malpractice, LASD maintained that it was immune from liability for medical malpractice under section 845.6.
In support of its motion, LASD offered three declarations, none of which addressed Franklin's treatment during the time period from the evening of June 9 to 5:00 p.m. on June 10. And none of the declarations addressed the allegations that LASD deputies knew of Franklin's diabetes because it was so stated on the form delivered by the arresting officers and that his insulin pump was confiscated at 10:00 p.m. on June 9.
A declaration of endocrinologist Dr. Richard [*9] Hornichter stated that he reviewed Franklin's medical records and concluded to a reasonable medical probability that the care Franklin received from doctors and nurses from approximately 5:00 p.m. on June 10, 2004, to 8:50 p.m. on June 11, 2004, complied with the applicable standard of care.
LASD also supplied the declarations of Helen Hud and Dr. Sander Peck, the chief physician of medical services at the Los Angeles County jail. The only information provided by Peck's declaration was that in June 2004 "the [LASD] did not maintain a custom, policy, or practice of refusing or failing to provide necessary medical care to inmates at the Los Angeles County Jail. Rather, it was and is the custom, policy, and practice of the [LASD] to take all appropriate steps to ensure that all inmates in the Los Angeles County Jail received all necessary medical care."
Helen Hud, a registered nurse employed in the Quality Assurance Section of the Medical Services Bureau of the Los Angeles County jail, reviewed 37 pages of Franklin's medical and mental health records maintained by the jail. Hud's review of Franklin's records showed that Franklin "was seen by a nurse at least nine different [*10] times and was seen by a doctor at least three times." But the records reflect that the first time Franklin was treated by a nurse was at 5:04 p.m. on June 10, almost one full day after Franklin alleged he was delivered to the Inmate Reception Center of the jail.
According to Hud, the "jail records show[ed] that [Franklin] entered the Los Angeles County Jail on or about 10:00 p.m. on June 9, 2004." But it was not until 5:04 p.m. on June 10 that Franklin was seen by Nurse Liu, who noted that Franklin had a history of insulin-dependent diabetes. Liu had Franklin's blood glucose level tested twice, with results of 466 mg/dl and 492 mg/dl. Liu also noted Franklin's dehydration and offered him a large cup of water.
As Franklin admitted to Liu that he currently had suicidal thoughts, Liu referred Franklin to a mental health professional. About 5:57 p.m. on June 10, Franklin was evaluated by a mental health nurse, who noted that he had a history of depression and a prior suicide attempt. At 7:55 p.m. on June 10, Franklin was seen by Dr. Saddler, who noted that Franklin's blood glucose level was 493 mg/dl. Dr. Saddler ordered that Franklin be admitted into the Medical Services Bureau [*11] (MSB), the in-patient area for inmates who require more intensive medical care, and that Franklin be placed on a diabetic protocol, including the administration of insulin, regular blood glucose monitoring, and a diabetic diet. About 9:44 p.m. on June 10, Franklin was admitted to the MSB, where, at 9:56 p.m., he was given 18 units of insulin, water, and a snack by Nurse Sung. Sung noted no signs or symptoms of hyperglycemia.
Hud's review of Franklin's records further indicated that at 4:15 a.m. on June 11, Nurse Magante tested Franklin's blood glucose level and obtained a result of 256 mg/dl. Magante administered to Franklin 10 units of insulin based on his blood glucose level. Franklin was given breakfast, and because he was scheduled to go to court that day, was told to bring a sack lunch with him. About 7:44 a.m., Franklin was seen by a psychiatrist for his history of depression. About 8:00 a.m., Dr. Enriquez saw Franklin and cleared him for court. Franklin was also seen by a nurse at that time.
Franklin was ordered released from custody and returned to the jail about 8:10 p.m. on June 11, when Nurse Regala twice tested his blood glucose level, with results of 456 mg/dl and 434 [*12] mg/dl. Regala administered to Franklin 18 units of insulin and gave him dinner and a large cup of water. According to Regala, Franklin was not in any acute distress. About 8:50 p.m., Regala cleared Franklin for release and instructed him to follow up with his personal doctor and to continue taking his medication. Later that evening, Franklin was released.
Dr. Richard Hornichter's declaration contains the same recitation of events set out in Hud's declaration. Hornichter also stated that, based on his review of Franklin's records and on his practice of endocrinology for over 30 years, it was his opinion, to a reasonable medical probability, that the care and treatment provided to Franklin by each of the nurses and doctors mentioned above "fully complied with the applicable standard of care." Hornichter also declared, "I am informed that immediate medical care is [required by case law for] 'serious and obvious medical condition requiring immediate care.' The medical records indicate that Franklin did not have any signs or symptoms of an obvious medical condition that required immediate care. Nurse Liu, after speaking with Mr. Franklin and observing him, noted only slight dehydration [*13] and, several hours later, Nurse Sung noted no signs or symptoms of hyperglycemia. In addition, Nurse Regala noted that Mr. Franklin was asymptomatic on June 11, 2004. While Mr. Franklin's blood glucose levels were somewhat elevated, there is nothing to indicate that these levels required immediate medical care. Moreover, the entries in Mr. Franklin's medical records on June 9-11, 2004, indicate that he received prompt and appropriate medical treatment at the Los Angeles County Jail."
Dr. Hornichter also was of the opinion that "to a reasonable medical probability, nothing about the care and treatment rendered to Mr. Franklin while he was incarcerated in the Los Angeles County Jail in any way caused or contributed to any lasting or permanent injuries. At most, Mr. Franklin may have suffered some transitory symptoms of hyperglycemia which would have quickly resolved upon the administration of insulin."
In opposition to LASD's motion, Franklin submitted documents which he claims were (1) the form filled out by the arresting officers noting that he was diabetic and had an insulin pump; (2) the lab report of a glucose test about 6:00 a.m. on June 11, purportedly showing he was then in [*14] a state of hyperglycemia; (3) a page from an LASD publication stating its policy of medical screening upon arrival at the jail; (4) a portion of his deposition transcript purportedly showing his testimony that he claimed a history of depression in an attempt to obtain medical review; and (5) a nursing discharge summary and diabetic monitoring record purportedly showing that his blood glucose was indeed at hyperglycemic levels, above 450 mg/dl, when he was tested on June 10 and 11, 2004. 2
FOOTNOTES
2 LASD filed evidentiary objections to these documents as unauthenticated and lacking foundation, but the record on appeal does not show any ruling on these objections.
Franklin attached to his appellant's appendix a July 11, 2006 letter from Dr. Michael Blumenkrantz, who reviewed his records pending this appeal. Because the letter was not before the trial court, it is not part of the appellate record and we do not consider it. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1, 151 Cal. Rptr. 837.)
[*15] Franklin also disputed numerous facts in LASD's separate statement of facts on the ground that he "reserves the right to respond to this after [LASD] provides the discovery materials demanded." After LASD's summary judgment motion was filed, Franklin filed a motion to compel discovery responses from LASD. Franklin's motion to compel was denied on December 5, 2005. Also on December 5, 2005, the court denied a motion by Franklin for reconsideration of an October 11, 2005 order granting LASD's motions to compel Franklin to respond to discovery requests and to deem admitted LASD's request for admissions.
After a hearing on December 12, 2005, the court granted LASD's summary judgment motion. Franklin appealed from the summary judgment and from the December 5, 2005 order.
DISCUSSION
A. Standard of Review of Summary Judgment
"Although federal law controls the substantive aspects of plaintiffs' federal civil rights claim, state rules of evidence and procedure apply unless application of those rules would affect plaintiffs' substantive federal rights." (County of Los Angeles v. Superior Court (2006) 139 Cal.App.4th 8, 17.)
We review a summary judgment [*16] ruling de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) The moving party's declarations or affidavits are strictly construed while those of the opposing party are liberally construed; in other words, the evidence of the opposing party, and the reasonable inferences therefrom, must be accepted as true. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1369.) "As our Supreme Court has noted, '[s]ummary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 . . . .)" (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.) The burden of persuasion remains with the party moving for summary judgment. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
And the moving defendant has [*17] the duty to define the issues presented by the complaint and to challenge them. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114, 229 Cal. Rptr. 531.) The moving party must establish that "'under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.'" (O'Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 804.)
B. Federal Civil Rights Claims Against LASD
The Ninth and six other federal circuits acknowledge that "a constitutional violation may take place when the government does not respond to the legitimate needs of a detainee whom it has reason to believe is diabetic." (Lolli v. County of Orange (9th Cir. 2003) 351 F.3d 410, 420 (Lolli) [summary judgment on section 1983 claim reversed as to individual officers but affirmed as to county where the plaintiff, a pretrial detainee, did not challenge trial court's ruling as to county].) "[Type 1 d]iabetes is a common yet serious illness that can produce harmful consequences if left untreated for even a relatively short period of time. [Citations. [*18] ] It constitutes a serious medical need." (Lolli, supra, 351 F.3d at p. 419.)
"With regard to medical needs, the due process clause imposes, at a minimum, the same duty the Eighth Amendment imposes: 'persons in custody ha[ve] the established right to not have officials remain deliberately indifferent to their serious medical needs.' [Citation.] . . . In order to comply with their duty not to engage in acts evidencing deliberate indifference to inmates' medical and psychiatric needs, jails must provide medical staff who are 'competent to deal with prisoners' problems.' [Citation.]" (Gibson v. County of Washoe, Nev. (9th Cir. 2002) 290 F.3d 1175, 1187 (Gibson).) "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.' [Citation.] [I]f a person is aware of a substantial risk of serious harm, a person may be liable for neglecting a prisoner's serious medical needs on the basis of either his action or his inaction." (Gibson, supra, 290 F.3d at pp. 1187-1188, [*19] fn. omitted.)
A municipality or other local governmental entity may not be held liable under section 1983 for the acts of its employees solely on the basis of the respondeat superior principle. "Instead, in Monell [v. New York City Dept. of Social Services (1978) 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (Monell)] and subsequent cases, [the Supreme Court has] required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury. [Citations.] Locating a 'policy' ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. [Citation.] Similarly, an act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." (Board of Comm'rs of Bryan Cty. v. Brown (1997) 520 U.S. 397, 403-404 [117 S.Ct. 1382, 137 L.Ed.2d 626] [*20] (Brown) [county's appeal from jury verdict in favor of the plaintiff-arrestee on excessive force claim].)
"[H]owever, it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." (Brown, supra, 520 U.S. at p. 404.)
"At least two routes can lead to the conclusion that a municipality has inflicted a constitutional injury. First, a plaintiff can show that a municipality itself violated someone's rights or that it directed its employee to do so." (Gibson, supra, 290 F.3d at p. 1185.) "Examples of this direct path to municipal liability include: a city's policy of discriminating against pregnant women in violation of the Fourteenth Amendment, Monell, 436 U.S. 658 . . .; a policy-maker's order to its employees to [*21] serve capiases in violation of the Fourth Amendment, Pembaur v. City of Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452 . . .; and a county policy that policymakers know will place aggressive and passive homosexuals in the same jail cell in violation of the passive homosexual's Fourteenth Amendment right to personal security. Redman v. County of San Diego, 942 F.2d 1435 . . . ." (Gibson, supra, 290 F.3d at pp. 1185-1186, fn. omitted.)
Under a second route to municipal liability, the plaintiff may show that, notwithstanding the facial constitutionality of the municipality's policies, an omission by the municipality led to a constitutional violation by one of its employees. (Gibson, supra, 290 F.3d at p. 1186.) This may occur when the need for more or different action is so obvious, and the inadequacy of the current procedure is so likely to result in the violation of constitutional rights, that the policymakers can reasonably be said to have been deliberately indifferent to the need. (Canton, supra, 489 U.S. at p. 390 [section 1983 liability may be imposed on a city for inadequacy of police [*22] training to determine need of detainee in police custody for medical treatment only where failure to train amounts to deliberate indifference to rights of detainee].)
Thus, "because Monell held that a municipality may not be held liable under a theory of respondeat superior, a plaintiff must show that the municipality's deliberate indifference led to its omission and that the omission caused the employee to commit the constitutional violation. [Citation.] To prove deliberate indifference, the plaintiff must show that the municipality was on actual or constructive notice that its omission would likely result in a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 841, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) [(Farmer)]. Compared to the more direct route to municipal liability discussed above, 'much more difficult problems of proof' are presented in a case where a city employee acting under a constitutionally valid policy violated someone's rights. [Brown, supra,] 520 U.S. at p. 406 . . . ." (Gibson, supra, 290 F.3d at p. 1186.)
Under Canton, the term "deliberate indifference" (permitting liability [*23] for inadequate training to be premised on obviousness or constructive notice) is an objective standard. (Farmer, supra, 511 U.S. at p. 841 [in a federal civil rights claim against a prison employee, "deliberate indifference" standard under Eighth Amendment requires employee to be subjectively aware of risk of harm to inmate].) Thus, with respect to a civil rights claim against an entity under Canton, the term "deliberate indifference" was used not to establish a state-of-mind standard, but "'for the quite different purpose of identifying the threshold for holding a city responsible for the constitutional torts committed by its inadequately trained agents,' [citation], a purpose the Canton Court found satisfied by a test permitting liability when a municipality disregards 'obvious' needs." (Farmer, supra, 511 U.S. at p. 841.)
We conclude that LASD has failed to meet its burden regarding Franklin's federal civil rights claims. First, LASD's evidence fails to address Franklin's treatment in the jail from the evening of June 9 to 5:00 p.m. on June 10. Second, the evidence provided by LASD fails to explain why, for 19 hours [*24] after his insulin pump was confiscated, Franklin was not afforded any medical care nor was his blood glucose tested, and why, for almost 24 hours after his pump was confiscated, he was not administered any insulin. Thus, the following questions, pertinent to the federal civil rights theories asserted by Franklin, remain unanswered: (1) whether the LASD had a policy or custom for evaluating and treating detainees with type 1 diabetes upon arrival at the jail, and, if so, what that policy or custom required; (2) whether the LASD trained its deputies to deal with detainees with diabetes, and the nature of that training; (3) whether the policy or custom of LASD permitted deputies to fail to afford Franklin access to insulin, glucose tests, and medical personnel for the first 19 hours of his detention (or the first 22.5 hours, or almost one full day later, as alleged by Franklin); 3 and (4) whether the policy or custom permitted nonmedical personnel to confiscate medical devices such as insulin pumps upon arrival of the detainee, and if so, whether the confiscation of Franklin's insulin pump triggered other policies or practices related to medical care for diabetic detainees.
FOOTNOTES
3 Franklin alleged that he arrived at the Inmate Reception Center of the jail at 6:30 p.m. on June 9. Hud and Hornichter declared that Franklin "entered the Los Angeles County Jail on or about 10:00 p.m. on June 9." It is unclear from the declarations what Hud and Hornichter meant by "entered the Los Angeles County Jail." It is possible that Franklin may have arrived at the Inmate Reception Center at 6:30 p.m. but that his entry process was not completed until later.
[*25] LASD's failure to provide answers to the foregoing questions means that it failed to meet its burden to establish that it did not disregard Franklin's obvious and serious medical need. After the Lolli decision in 2003, it cannot be denied that diabetes is a serious medical condition for purposes of section 1983 jurisprudence. Hornichter did not deny that diabetes is a serious medical condition, but in addressing the issue of whether Franklin's condition was obvious, Hornichter stated, "The medical records indicate that Franklin did not have any signs or symptoms of an obvious medical condition that required immediate care." (Italics added.) But there is no issue as to whether Franklin's signs or symptoms of diabetes were obvious, because it is undisputed that Franklin indeed had diabetes. That Franklin had diabetes was so stated on the police department form allegedly provided to LASD by the arresting officers. Even if the deputies did not read the form, Franklin's diabetes would have been obvious to any competent and properly trained LASD deputy who confiscated Franklin's insulin pump. Thus, LASD failed to negate actual or constructive notice of Franklin's serious [*26] medical needs relating to his diabetes.
And there is insufficient evidence in the record to establish whether LASD had a facially constitutional policy with respect to diabetic detainees. The only declarant to address the issue of LASD's policy or custom was Dr. Peck, who addressed the issue in such a conclusory fashion that it is impossible to ascertain whether LASD had a specific policy, custom, or practice with respect to diabetes, and if so, what the requirements of such policy or practice were. Peck's declaration raises more questions than it answers.
Even if a policy existed and it was facially constitutional, there is also insufficient evidence to establish that LASD had an adequate training program or other practices such as to negate the element of deliberate indifference. Thus, we conclude that the evidentiary showing made by LASD's summary judgment motion was inadequate and too conclusory to support a judgment in its favor on the federal civil rights claims. (See, e.g., Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 526 [summary judgment for city reversed because motion did not address elements of federal civil rights claim based on failure to [*27] adequately train jailers under Canton].)
C. State Law Claims
"Liability of public entities and public employees under Government Code section 845.6 is limited to serious and obvious medical conditions requiring immediate care. [Citation.] Their duty to provide medical care to prisoners is limited to '". . . cases where there is actual or constructive knowledge that the prisoner is in need of immediate medical care."' [Citation.] The public employee must know or have reason to know of the need of immediate medical care and fail to summon such care." (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 288.) "[T]he phrase 'has reason to know' is the equivalent of an objective standard." (Ibid.)
As noted above, LASD failed to provide evidence establishing that it had no actual or constructive knowledge of Franklin's type 1 diabetes. LASD did not negate the allegations that the arresting officers provided a written form to the LASD deputies, noting Franklin's diabetes and insulin pump, and that LASD deputies confiscated the pump. Without evidence of Franklin's condition, including his blood glucose levels, [*28] during the first 19 hours he was in the jail, LASD did not negate the allegations that Franklin was in need of immediate medical care and that LASD failed to summon such care. Accordingly, the summary judgment also must be reversed because LASD has not met its burden of establishing that it is entitled to prevail on the claim based on section 845.6.
But we agree with LASD that it is not liable to Franklin for medical malpractice because a government entity is not vicariously liable for the medical malpractice of its employees. (Watson v. State of California (1993) 21 Cal.App.4th 836, 842.)
D. Appeal from December 5, 2005 Order Denying Motions for Reconsideration and to Compel Responses to Discovery Requests
Although Franklin's notice of appeal states that he is appealing from the December 5, 2005 order denying his motion for reconsideration of the October 11, 2005 ruling and denying his motion to compel discovery responses, the only argument in his opening brief as to such matters is the request that on remand we instruct the superior court to grant his motion to reconsider its October 11, 2005 ruling, his motion to compel, and his motion for a continuance [*29] "in the interest of stream-lining this Case's path to trial."
We dismiss Franklin's appeal from the ruling denying the motion for reconsideration because such order is not appealable. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459.) We affirm the ruling denying Franklin's motion to compel because he has not shown prejudicial error. (County of Nevada v. Kinicki (1980) 106 Cal.App.3d 357, 363, 165 Cal. Rptr. 57 [although discovery orders may be reviewed on appeal from a final judgment, appellant must show error and that error was prejudicial].)
DISPOSITION
The summary judgment is reversed. On remand the trial court is directed to grant LASD's motion for summary adjudication on the cause of action for medical malpractice and to deny its motion for summary adjudication in all other respects. The appeal from that part of the order of December 5, 2005, denying Franklin's motion for reconsideration is dismissed. The order of December 5, 2005, is affirmed. The parties are to bear their own costs on appeal.
MALLANO, Acting P.J.
I concur:
JACKSON, J. *
FOOTNOTES
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[*30] I concur in the judgment only.
VOGEL, J.
B188839
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
January 25, 2007, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: APPEAL from a judgment and an order of the Superior Court of Los Angeles County, No. BC328616. David L. Minning, Judge.
DISPOSITION: Judgment reversed with directions. Appeal from order dismissed in part and order affirmed.
COUNSEL: Christopher G. Franklin, in pro. per., for Plaintiff and Appellant.
Manning & Marder Kass, Ellrod, Ramirez and Patrick L. Hurley for Defendant and Respondent.
JUDGES: MALLANO, Acting P.J., JACKSON, J. * , VOGEL, J. concurred.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
OPINION BY: MALLANO
OPINION
Plaintiff Christopher Franklin, a type 1 diabetic wearing an insulin pump, was arrested and detained in the Los Angeles County jail for approximately 48 hours. Franklin appeals from a summary judgment entered in favor of defendant Los Angeles County [*2] Sheriff's Department (LASD) on his first amended complaint (complaint), alleging that LASD's medical evaluation and treatment of his diabetes during his period of detention violated federal and state law. We reverse the summary judgment because LASD failed to provide sufficient evidence to warrant judgment in its favor on the causes of action for violation of Franklin's federal constitutional right to medical care (42 U.S.C. § 1983) and for violation of the statutory duty to summon medical care (Gov. Code, § 845.6). But LASD is entitled to prevail on the cause of action for medical malpractice because a government entity is not vicariously liable for the medical malpractice of its employees.
BACKGROUND
In February 2005, Franklin filed an action against LASD, seeking injunctive and monetary relief for personal injuries arising out of his detention at the Los Angeles County jail from 6:30 p.m. on June 9, 2004, to 11:30 p.m. on June 11, 2004, where he was held after his arrest for robbery, which charges were ultimately dismissed. His detailed complaint alleged the following:
In 1990, when he was 18, Franklin was diagnosed with [*3] type 1 diabetes. Franklin must maintain normal blood glucose levels by testing his blood glucose levels eight to twelve times a day with a specialized medical device and by injecting himself with insulin with an insulin pump. By way of tubing and a catheter attached to his abdomen, the insulin pump subcutaneously injected Franklin with insulin on a constant basis. The lack of insulin causes hyperglycemia, or high blood glucose, a condition which induces vomiting and can be life threatening. Hyperglycemia can cause diabetic ketoacidosis, a life-threatening condition. Complications from uncontrolled type 1 diabetes or from the lack of insulin also include nerve damage, eye and kidney diseases, impotence, and heart and blood vessel diseases.
Before his detention in June 2004, Franklin had not experienced any of the complications that can result from uncontrolled diabetes and had a history of excellent control of his diabetes.
At 6:30 p.m. on June 9, officers of the Los Angeles Police Department arrested Franklin and delivered him to the Inmate Reception Center of the Los Angeles County jail. The police officers delivering Franklin had completed a form stating that Franklin was "'wearing [*4] an insulin pump used to treat a diabetic condition.'" The published policy of the LASD states that "'if (an inmate) is already at the Inmate Reception Center at the downtown Los Angeles County Jail, he/she will be screened for mental illness, as well as other health concerns, upon arrival.'" But Franklin was not screened by the LASD or sheriff's medical personnel until 7:30 p.m. on June 10.
At the Inmate Reception Center at 10:00 p.m. on June 9, after Franklin's numerous episodes of vomiting due to hyperglycemia, sheriff's deputies confiscated his insulin pump, notwithstanding his entreaties for insulin and medical screening. On eight occasions before 7:30 p.m. on June 10, Franklin tried to communicate to the LASD and the sheriff's deputies that his health was deteriorating and his life was in danger if he continued to be deprived of insulin. As a result of hyperglycemia, Franklin vomited on five occasions. On one occasion, which was witnessed by sheriff's deputies, one "poorly-trained" deputy laughed and asked Franklin what drug he was using. On six occasions, Franklin tried to use the pay telephones to contact a family member who could inform the deputies that he was in dire medical [*5] need, but the telephones were inoperable or damaged.
After his insulin pump was confiscated, Franklin experienced "dire physical pain including nausea, repeated vomiting and aching within his kidneys as a result of hyperglycemia . . . ." He also lost feeling in his feet, became severely dehydrated, developed blurry vision, and was unable to eat the food provided to him by the jail trustees. Over 22 hours after his arrival at Twin Towers, Franklin was able to convince the sheriff's medical personnel to perform a blood glucose test with a blood glucose monitor. The test revealed a "deadly high glucose level" of 450 milligrams per deciliter (mg/dl), well outside of the normal range, between 80 and 140 mg/dl. After the glucose monitor test, Franklin did not receive any insulin for another 2.5 hours. During the remaining time that he was in custody at Twin Towers, until 11:30 p.m. on June 11, Franklin's blood glucose was tested twice, with both tests showing dangerously high levels - approximately 250 mg/dl and 450 mg/dl. Had Franklin received the proper amount of insulin, his blood glucose levels would have been in the normal range. As a result of the actions and inactions of the LASD, [*6] Franklin developed diabetic neuropathy (nerve damage) and experiences chronic pain in his kidney region, loss of feeling in his feet and legs, diabetes-related impotence, and episodes of blurry vision.
In the first cause of action, labeled "deliberate indifference," Franklin asserted a claim for a violation of his federal constitutional right to medical care under 42 United States Code section 1983 (section 1983). In the second cause of action, labeled "professional negligence," which appears to be a state law claim for violation of Government Code section 845.6 (section 845.6), 1 he alleged that sheriff's deputies failed to enforce prudently and diligently the LASD policy that inmates be medically screened upon arrival at the jail. In the third cause of action, labeled "medical malpractice," Franklin alleged that sheriff's medical personnel failed properly to train the deputies to recognize, treat, and refer hyperglycemic inmates to doctors and that there was no system in place at Twin Towers to ensure that insulin administration and meals were coordinated to prevent hyperglycemia in its diabetic inmates. The foregoing allegations pleaded [*7] a federal civil rights claim under section 1983 based on the failure to train municipal employees. (See Canton v. Harris (1989) 489 U.S. 378, 380 [109 S. Ct. 1197, 56 L. Ed. 2d 611] (Canton) [under certain circumstances a municipality may be liable under section 1983 for violations resulting from its failure to train municipal employees].)
FOOTNOTES
1 Section 845.6 provides in pertinent part: "Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but . . . a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care. . . ."
LASD filed a motion for summary judgment, or in the alternative for summary adjudication with respect to each cause of action. As [*8] to the section 1983 claim, LASD argued that Franklin had not established a constitutional violation and that LASD did not have a custom, policy, or practice that led to any violation of his constitutional rights. With respect to the state law claim under section 845.6, LASD argued that there was "no evidence to suggest that [Franklin] was suffering from a serious or obvious medical condition," that he was in need of "immediate" medical care, or that any sheriff's department employee knew or had reason to know that Franklin was in need of immediate medical care or failed to summon such care. As to the claim for medical malpractice, LASD maintained that it was immune from liability for medical malpractice under section 845.6.
In support of its motion, LASD offered three declarations, none of which addressed Franklin's treatment during the time period from the evening of June 9 to 5:00 p.m. on June 10. And none of the declarations addressed the allegations that LASD deputies knew of Franklin's diabetes because it was so stated on the form delivered by the arresting officers and that his insulin pump was confiscated at 10:00 p.m. on June 9.
A declaration of endocrinologist Dr. Richard [*9] Hornichter stated that he reviewed Franklin's medical records and concluded to a reasonable medical probability that the care Franklin received from doctors and nurses from approximately 5:00 p.m. on June 10, 2004, to 8:50 p.m. on June 11, 2004, complied with the applicable standard of care.
LASD also supplied the declarations of Helen Hud and Dr. Sander Peck, the chief physician of medical services at the Los Angeles County jail. The only information provided by Peck's declaration was that in June 2004 "the [LASD] did not maintain a custom, policy, or practice of refusing or failing to provide necessary medical care to inmates at the Los Angeles County Jail. Rather, it was and is the custom, policy, and practice of the [LASD] to take all appropriate steps to ensure that all inmates in the Los Angeles County Jail received all necessary medical care."
Helen Hud, a registered nurse employed in the Quality Assurance Section of the Medical Services Bureau of the Los Angeles County jail, reviewed 37 pages of Franklin's medical and mental health records maintained by the jail. Hud's review of Franklin's records showed that Franklin "was seen by a nurse at least nine different [*10] times and was seen by a doctor at least three times." But the records reflect that the first time Franklin was treated by a nurse was at 5:04 p.m. on June 10, almost one full day after Franklin alleged he was delivered to the Inmate Reception Center of the jail.
According to Hud, the "jail records show[ed] that [Franklin] entered the Los Angeles County Jail on or about 10:00 p.m. on June 9, 2004." But it was not until 5:04 p.m. on June 10 that Franklin was seen by Nurse Liu, who noted that Franklin had a history of insulin-dependent diabetes. Liu had Franklin's blood glucose level tested twice, with results of 466 mg/dl and 492 mg/dl. Liu also noted Franklin's dehydration and offered him a large cup of water.
As Franklin admitted to Liu that he currently had suicidal thoughts, Liu referred Franklin to a mental health professional. About 5:57 p.m. on June 10, Franklin was evaluated by a mental health nurse, who noted that he had a history of depression and a prior suicide attempt. At 7:55 p.m. on June 10, Franklin was seen by Dr. Saddler, who noted that Franklin's blood glucose level was 493 mg/dl. Dr. Saddler ordered that Franklin be admitted into the Medical Services Bureau [*11] (MSB), the in-patient area for inmates who require more intensive medical care, and that Franklin be placed on a diabetic protocol, including the administration of insulin, regular blood glucose monitoring, and a diabetic diet. About 9:44 p.m. on June 10, Franklin was admitted to the MSB, where, at 9:56 p.m., he was given 18 units of insulin, water, and a snack by Nurse Sung. Sung noted no signs or symptoms of hyperglycemia.
Hud's review of Franklin's records further indicated that at 4:15 a.m. on June 11, Nurse Magante tested Franklin's blood glucose level and obtained a result of 256 mg/dl. Magante administered to Franklin 10 units of insulin based on his blood glucose level. Franklin was given breakfast, and because he was scheduled to go to court that day, was told to bring a sack lunch with him. About 7:44 a.m., Franklin was seen by a psychiatrist for his history of depression. About 8:00 a.m., Dr. Enriquez saw Franklin and cleared him for court. Franklin was also seen by a nurse at that time.
Franklin was ordered released from custody and returned to the jail about 8:10 p.m. on June 11, when Nurse Regala twice tested his blood glucose level, with results of 456 mg/dl and 434 [*12] mg/dl. Regala administered to Franklin 18 units of insulin and gave him dinner and a large cup of water. According to Regala, Franklin was not in any acute distress. About 8:50 p.m., Regala cleared Franklin for release and instructed him to follow up with his personal doctor and to continue taking his medication. Later that evening, Franklin was released.
Dr. Richard Hornichter's declaration contains the same recitation of events set out in Hud's declaration. Hornichter also stated that, based on his review of Franklin's records and on his practice of endocrinology for over 30 years, it was his opinion, to a reasonable medical probability, that the care and treatment provided to Franklin by each of the nurses and doctors mentioned above "fully complied with the applicable standard of care." Hornichter also declared, "I am informed that immediate medical care is [required by case law for] 'serious and obvious medical condition requiring immediate care.' The medical records indicate that Franklin did not have any signs or symptoms of an obvious medical condition that required immediate care. Nurse Liu, after speaking with Mr. Franklin and observing him, noted only slight dehydration [*13] and, several hours later, Nurse Sung noted no signs or symptoms of hyperglycemia. In addition, Nurse Regala noted that Mr. Franklin was asymptomatic on June 11, 2004. While Mr. Franklin's blood glucose levels were somewhat elevated, there is nothing to indicate that these levels required immediate medical care. Moreover, the entries in Mr. Franklin's medical records on June 9-11, 2004, indicate that he received prompt and appropriate medical treatment at the Los Angeles County Jail."
Dr. Hornichter also was of the opinion that "to a reasonable medical probability, nothing about the care and treatment rendered to Mr. Franklin while he was incarcerated in the Los Angeles County Jail in any way caused or contributed to any lasting or permanent injuries. At most, Mr. Franklin may have suffered some transitory symptoms of hyperglycemia which would have quickly resolved upon the administration of insulin."
In opposition to LASD's motion, Franklin submitted documents which he claims were (1) the form filled out by the arresting officers noting that he was diabetic and had an insulin pump; (2) the lab report of a glucose test about 6:00 a.m. on June 11, purportedly showing he was then in [*14] a state of hyperglycemia; (3) a page from an LASD publication stating its policy of medical screening upon arrival at the jail; (4) a portion of his deposition transcript purportedly showing his testimony that he claimed a history of depression in an attempt to obtain medical review; and (5) a nursing discharge summary and diabetic monitoring record purportedly showing that his blood glucose was indeed at hyperglycemic levels, above 450 mg/dl, when he was tested on June 10 and 11, 2004. 2
FOOTNOTES
2 LASD filed evidentiary objections to these documents as unauthenticated and lacking foundation, but the record on appeal does not show any ruling on these objections.
Franklin attached to his appellant's appendix a July 11, 2006 letter from Dr. Michael Blumenkrantz, who reviewed his records pending this appeal. Because the letter was not before the trial court, it is not part of the appellate record and we do not consider it. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1, 151 Cal. Rptr. 837.)
[*15] Franklin also disputed numerous facts in LASD's separate statement of facts on the ground that he "reserves the right to respond to this after [LASD] provides the discovery materials demanded." After LASD's summary judgment motion was filed, Franklin filed a motion to compel discovery responses from LASD. Franklin's motion to compel was denied on December 5, 2005. Also on December 5, 2005, the court denied a motion by Franklin for reconsideration of an October 11, 2005 order granting LASD's motions to compel Franklin to respond to discovery requests and to deem admitted LASD's request for admissions.
After a hearing on December 12, 2005, the court granted LASD's summary judgment motion. Franklin appealed from the summary judgment and from the December 5, 2005 order.
DISCUSSION
A. Standard of Review of Summary Judgment
"Although federal law controls the substantive aspects of plaintiffs' federal civil rights claim, state rules of evidence and procedure apply unless application of those rules would affect plaintiffs' substantive federal rights." (County of Los Angeles v. Superior Court (2006) 139 Cal.App.4th 8, 17.)
We review a summary judgment [*16] ruling de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) The moving party's declarations or affidavits are strictly construed while those of the opposing party are liberally construed; in other words, the evidence of the opposing party, and the reasonable inferences therefrom, must be accepted as true. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1369.) "As our Supreme Court has noted, '[s]ummary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 . . . .)" (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.) The burden of persuasion remains with the party moving for summary judgment. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
And the moving defendant has [*17] the duty to define the issues presented by the complaint and to challenge them. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114, 229 Cal. Rptr. 531.) The moving party must establish that "'under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.'" (O'Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 804.)
B. Federal Civil Rights Claims Against LASD
The Ninth and six other federal circuits acknowledge that "a constitutional violation may take place when the government does not respond to the legitimate needs of a detainee whom it has reason to believe is diabetic." (Lolli v. County of Orange (9th Cir. 2003) 351 F.3d 410, 420 (Lolli) [summary judgment on section 1983 claim reversed as to individual officers but affirmed as to county where the plaintiff, a pretrial detainee, did not challenge trial court's ruling as to county].) "[Type 1 d]iabetes is a common yet serious illness that can produce harmful consequences if left untreated for even a relatively short period of time. [Citations. [*18] ] It constitutes a serious medical need." (Lolli, supra, 351 F.3d at p. 419.)
"With regard to medical needs, the due process clause imposes, at a minimum, the same duty the Eighth Amendment imposes: 'persons in custody ha[ve] the established right to not have officials remain deliberately indifferent to their serious medical needs.' [Citation.] . . . In order to comply with their duty not to engage in acts evidencing deliberate indifference to inmates' medical and psychiatric needs, jails must provide medical staff who are 'competent to deal with prisoners' problems.' [Citation.]" (Gibson v. County of Washoe, Nev. (9th Cir. 2002) 290 F.3d 1175, 1187 (Gibson).) "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.' [Citation.] [I]f a person is aware of a substantial risk of serious harm, a person may be liable for neglecting a prisoner's serious medical needs on the basis of either his action or his inaction." (Gibson, supra, 290 F.3d at pp. 1187-1188, [*19] fn. omitted.)
A municipality or other local governmental entity may not be held liable under section 1983 for the acts of its employees solely on the basis of the respondeat superior principle. "Instead, in Monell [v. New York City Dept. of Social Services (1978) 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (Monell)] and subsequent cases, [the Supreme Court has] required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiff's injury. [Citations.] Locating a 'policy' ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. [Citation.] Similarly, an act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." (Board of Comm'rs of Bryan Cty. v. Brown (1997) 520 U.S. 397, 403-404 [117 S.Ct. 1382, 137 L.Ed.2d 626] [*20] (Brown) [county's appeal from jury verdict in favor of the plaintiff-arrestee on excessive force claim].)
"[H]owever, it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." (Brown, supra, 520 U.S. at p. 404.)
"At least two routes can lead to the conclusion that a municipality has inflicted a constitutional injury. First, a plaintiff can show that a municipality itself violated someone's rights or that it directed its employee to do so." (Gibson, supra, 290 F.3d at p. 1185.) "Examples of this direct path to municipal liability include: a city's policy of discriminating against pregnant women in violation of the Fourteenth Amendment, Monell, 436 U.S. 658 . . .; a policy-maker's order to its employees to [*21] serve capiases in violation of the Fourth Amendment, Pembaur v. City of Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452 . . .; and a county policy that policymakers know will place aggressive and passive homosexuals in the same jail cell in violation of the passive homosexual's Fourteenth Amendment right to personal security. Redman v. County of San Diego, 942 F.2d 1435 . . . ." (Gibson, supra, 290 F.3d at pp. 1185-1186, fn. omitted.)
Under a second route to municipal liability, the plaintiff may show that, notwithstanding the facial constitutionality of the municipality's policies, an omission by the municipality led to a constitutional violation by one of its employees. (Gibson, supra, 290 F.3d at p. 1186.) This may occur when the need for more or different action is so obvious, and the inadequacy of the current procedure is so likely to result in the violation of constitutional rights, that the policymakers can reasonably be said to have been deliberately indifferent to the need. (Canton, supra, 489 U.S. at p. 390 [section 1983 liability may be imposed on a city for inadequacy of police [*22] training to determine need of detainee in police custody for medical treatment only where failure to train amounts to deliberate indifference to rights of detainee].)
Thus, "because Monell held that a municipality may not be held liable under a theory of respondeat superior, a plaintiff must show that the municipality's deliberate indifference led to its omission and that the omission caused the employee to commit the constitutional violation. [Citation.] To prove deliberate indifference, the plaintiff must show that the municipality was on actual or constructive notice that its omission would likely result in a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 841, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) [(Farmer)]. Compared to the more direct route to municipal liability discussed above, 'much more difficult problems of proof' are presented in a case where a city employee acting under a constitutionally valid policy violated someone's rights. [Brown, supra,] 520 U.S. at p. 406 . . . ." (Gibson, supra, 290 F.3d at p. 1186.)
Under Canton, the term "deliberate indifference" (permitting liability [*23] for inadequate training to be premised on obviousness or constructive notice) is an objective standard. (Farmer, supra, 511 U.S. at p. 841 [in a federal civil rights claim against a prison employee, "deliberate indifference" standard under Eighth Amendment requires employee to be subjectively aware of risk of harm to inmate].) Thus, with respect to a civil rights claim against an entity under Canton, the term "deliberate indifference" was used not to establish a state-of-mind standard, but "'for the quite different purpose of identifying the threshold for holding a city responsible for the constitutional torts committed by its inadequately trained agents,' [citation], a purpose the Canton Court found satisfied by a test permitting liability when a municipality disregards 'obvious' needs." (Farmer, supra, 511 U.S. at p. 841.)
We conclude that LASD has failed to meet its burden regarding Franklin's federal civil rights claims. First, LASD's evidence fails to address Franklin's treatment in the jail from the evening of June 9 to 5:00 p.m. on June 10. Second, the evidence provided by LASD fails to explain why, for 19 hours [*24] after his insulin pump was confiscated, Franklin was not afforded any medical care nor was his blood glucose tested, and why, for almost 24 hours after his pump was confiscated, he was not administered any insulin. Thus, the following questions, pertinent to the federal civil rights theories asserted by Franklin, remain unanswered: (1) whether the LASD had a policy or custom for evaluating and treating detainees with type 1 diabetes upon arrival at the jail, and, if so, what that policy or custom required; (2) whether the LASD trained its deputies to deal with detainees with diabetes, and the nature of that training; (3) whether the policy or custom of LASD permitted deputies to fail to afford Franklin access to insulin, glucose tests, and medical personnel for the first 19 hours of his detention (or the first 22.5 hours, or almost one full day later, as alleged by Franklin); 3 and (4) whether the policy or custom permitted nonmedical personnel to confiscate medical devices such as insulin pumps upon arrival of the detainee, and if so, whether the confiscation of Franklin's insulin pump triggered other policies or practices related to medical care for diabetic detainees.
FOOTNOTES
3 Franklin alleged that he arrived at the Inmate Reception Center of the jail at 6:30 p.m. on June 9. Hud and Hornichter declared that Franklin "entered the Los Angeles County Jail on or about 10:00 p.m. on June 9." It is unclear from the declarations what Hud and Hornichter meant by "entered the Los Angeles County Jail." It is possible that Franklin may have arrived at the Inmate Reception Center at 6:30 p.m. but that his entry process was not completed until later.
[*25] LASD's failure to provide answers to the foregoing questions means that it failed to meet its burden to establish that it did not disregard Franklin's obvious and serious medical need. After the Lolli decision in 2003, it cannot be denied that diabetes is a serious medical condition for purposes of section 1983 jurisprudence. Hornichter did not deny that diabetes is a serious medical condition, but in addressing the issue of whether Franklin's condition was obvious, Hornichter stated, "The medical records indicate that Franklin did not have any signs or symptoms of an obvious medical condition that required immediate care." (Italics added.) But there is no issue as to whether Franklin's signs or symptoms of diabetes were obvious, because it is undisputed that Franklin indeed had diabetes. That Franklin had diabetes was so stated on the police department form allegedly provided to LASD by the arresting officers. Even if the deputies did not read the form, Franklin's diabetes would have been obvious to any competent and properly trained LASD deputy who confiscated Franklin's insulin pump. Thus, LASD failed to negate actual or constructive notice of Franklin's serious [*26] medical needs relating to his diabetes.
And there is insufficient evidence in the record to establish whether LASD had a facially constitutional policy with respect to diabetic detainees. The only declarant to address the issue of LASD's policy or custom was Dr. Peck, who addressed the issue in such a conclusory fashion that it is impossible to ascertain whether LASD had a specific policy, custom, or practice with respect to diabetes, and if so, what the requirements of such policy or practice were. Peck's declaration raises more questions than it answers.
Even if a policy existed and it was facially constitutional, there is also insufficient evidence to establish that LASD had an adequate training program or other practices such as to negate the element of deliberate indifference. Thus, we conclude that the evidentiary showing made by LASD's summary judgment motion was inadequate and too conclusory to support a judgment in its favor on the federal civil rights claims. (See, e.g., Irwin v. City of Hemet (1994) 22 Cal.App.4th 507, 526 [summary judgment for city reversed because motion did not address elements of federal civil rights claim based on failure to [*27] adequately train jailers under Canton].)
C. State Law Claims
"Liability of public entities and public employees under Government Code section 845.6 is limited to serious and obvious medical conditions requiring immediate care. [Citation.] Their duty to provide medical care to prisoners is limited to '". . . cases where there is actual or constructive knowledge that the prisoner is in need of immediate medical care."' [Citation.] The public employee must know or have reason to know of the need of immediate medical care and fail to summon such care." (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 288.) "[T]he phrase 'has reason to know' is the equivalent of an objective standard." (Ibid.)
As noted above, LASD failed to provide evidence establishing that it had no actual or constructive knowledge of Franklin's type 1 diabetes. LASD did not negate the allegations that the arresting officers provided a written form to the LASD deputies, noting Franklin's diabetes and insulin pump, and that LASD deputies confiscated the pump. Without evidence of Franklin's condition, including his blood glucose levels, [*28] during the first 19 hours he was in the jail, LASD did not negate the allegations that Franklin was in need of immediate medical care and that LASD failed to summon such care. Accordingly, the summary judgment also must be reversed because LASD has not met its burden of establishing that it is entitled to prevail on the claim based on section 845.6.
But we agree with LASD that it is not liable to Franklin for medical malpractice because a government entity is not vicariously liable for the medical malpractice of its employees. (Watson v. State of California (1993) 21 Cal.App.4th 836, 842.)
D. Appeal from December 5, 2005 Order Denying Motions for Reconsideration and to Compel Responses to Discovery Requests
Although Franklin's notice of appeal states that he is appealing from the December 5, 2005 order denying his motion for reconsideration of the October 11, 2005 ruling and denying his motion to compel discovery responses, the only argument in his opening brief as to such matters is the request that on remand we instruct the superior court to grant his motion to reconsider its October 11, 2005 ruling, his motion to compel, and his motion for a continuance [*29] "in the interest of stream-lining this Case's path to trial."
We dismiss Franklin's appeal from the ruling denying the motion for reconsideration because such order is not appealable. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459.) We affirm the ruling denying Franklin's motion to compel because he has not shown prejudicial error. (County of Nevada v. Kinicki (1980) 106 Cal.App.3d 357, 363, 165 Cal. Rptr. 57 [although discovery orders may be reviewed on appeal from a final judgment, appellant must show error and that error was prejudicial].)
DISPOSITION
The summary judgment is reversed. On remand the trial court is directed to grant LASD's motion for summary adjudication on the cause of action for medical malpractice and to deny its motion for summary adjudication in all other respects. The appeal from that part of the order of December 5, 2005, denying Franklin's motion for reconsideration is dismissed. The order of December 5, 2005, is affirmed. The parties are to bear their own costs on appeal.
MALLANO, Acting P.J.
I concur:
JACKSON, J. *
FOOTNOTES
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[*30] I concur in the judgment only.
VOGEL, J.