LESLIE E. KOBAYASHI, United States Magistrate Judge.
On August 5, 2010, Defendants Leroy Melchor, Wanna Bhalang, Tomi Bradley, Amy Yasunaga, Roberta Marks, Kenneth Zienkiewicz, M.D., Kay Bauman, M.D., and Keith Wakabayashi, all in their individual capacities (collectively "Defendants"), filed their Motion for Summary Judgment ("Motion"). Leah Castro, individually and as Personal Representative of the Estate of Briandalynne Castro, deceased minor ("Plaintiff"), filed her memorandum in opposition on September 27, 2010, and Defendants filed their reply on October 4,
Plaintiff originally filed the instant action under 42 U.S.C. § 1983 on November 8, 2007. Plaintiff filed her First Amended Complaint on October 27, 2008, and her Second Amended Complaint on April 30, 2009.
The Second Amended Complaint alleges that, on or about June 30, 2007, Plaintiff was an inmate at the Oahu Community Correctional Center ("OCCC"). Following a verbal exchange with a guard, two guards physically forced Plaintiff to the ground from a standing position. While she was lying on the ground on her stomach, the guards restrained her by holding their body weights against her back and legs and placing her in handcuffs. Plaintiff was approximately seven months pregnant at the time. [Second Amended Complaint at ¶¶ 4, 16.]
On July 2, 2007, Defendant Yasunaga saw Plaintiff for a prenatal exam. Defendant Yasunaga ordered laboratory tests and scheduled an appointment for Plaintiff at Kapiolani Medical Center for Women and Children ("Kapiolani"). There is no indication that Plaintiff was experiencing vaginal bleeding at this time. [State Defs.' Concise Stat. of Facts in Supp. of Motion ("Defs.' CSOF"), Aff. of Amy Yasunaga ("Yasunaga Aff.") at ¶¶ 3-6, Exh. A (examination records).] Plaintiff was brought late to the appointment at Kapiolani and was therefore asked to reschedule. Plaintiff was not taken back to Kapiolani until sometime after her transfer from OCCC to the Women's Community Correctional Center ("WCCC"). [Pltf.'s Concise Statement of Facts in Supp. of Mem. in Opp. to Motion ("Pltf.'s CSOF"),
Sometime after the incident with the guards, Plaintiff experienced vaginal bleeding. The Second Amended Complaint alleges that Plaintiff timely and repeatedly reported this to OCCC guards and requested medical care. The guards related Plaintiff's complaints to OCCC medical staff, including Defendants Melchor, Bhalang, and Bradley, who are nurses in the OCCC medical unit. Plaintiff, however, was not provided with timely or adequate medical care. [Second Amended Complaint at ¶¶ 6-8, 17.] During this time, Plaintiff was in a lock-down cell for administrative segregation. [Pltf.'s CSOF, Exh. 9, Def. Mark Patterson's Response to Pltf.'s First Request for Prod. of Docs., at OCCC0109 (7/6/07 note that Plaintiff was placed in lock-down for "admin. seg."), OCCC0177 (7/27/07 note that Plaintiff's "admin seg" was to continue 7/27/07 to 8/3/07).] According to Plaintiff, while she was in lock-down, she was not allowed to communicate with anyone besides the guards, and she did not have daily access to the sick call nurse. [Pltf.'s CSOF, Aff. of Leah Castro ("Castro Aff."), at ¶ 2; Exh. 2, Castro Depo., at 45-46.]
The Second Amended Complaint also alleges that Defendants Bauman, Zienkiewicz, Marks, Wakabayashi, and Yasunaga were negligent in their duties and responsibilities, including the hiring, training, and supervision of Defendants Melchor Bhalang, and Bradley. Further, Defendants Bauman, Zienkiewicz, Marks, Wakabayashi, and Yasunaga were responsible for providing Plaintiff with, or ensuring that she receive, adequate prenatal and other medical care, but they failed to do so. [Second Amended Complaint at ¶¶ 18-19.] At all relevant times, Defendants Bauman and Zienkiewicz were physicians in the OCCC medical unit, Defendants Marks and Wakabayashi were nurse supervisors in the OCCC medical unit, and Defendant Yasunaga was a nurse practitioner in the OCCC medical unit. [Id. at ¶¶ 9-13.]
The Second Amended Complaint alleges that, as a result of Defendants' actions and/or omissions, Plaintiff's fetus died in the womb. Plaintiff delivered a stillborn on August 10, 2007. At the time of delivery, the fetus' gestational age was thirty-two weeks. [Id. at ¶ 20.]
The Second Amended Complaint alleges the following claims: a § 1983 claim for the violation of Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment and her Fourteenth Amendment right to due process; intentional infliction of emotional distress ("IIED"); negligence; and punitive damages. Plaintiff's claims include allegations that Defendants Marks, Zienkiewicz, Bauman, and Wakabayashi: negligently hired, trained, supervised, and retained Defendants Melchor, Bhalang, Bradley, and Yasunaga; negligently failed to provide Plaintiff with necessary medical and prenatal care; negligently failed to reprimand Defendants Melchor, Bhalang, Bradley, and Yasunaga regarding the denial of medical care to Plaintiff; and negligently managed OCCC's medical services and procedures, including the failure to adequately document Plaintiff's medical complaints. [Id. at ¶ 42.] Plaintiff seeks: general, compensatory, and special damages; punitive damages; pre-judgment and post-judgment interest; reasonable attorneys' fees and costs pursuant to 42 U.S.C. § 1988 or any other applicable laws; and any other just and equitable relief.
In the instant Motion, Defendants argue that they are entitled to summary judgment
Defendants argue that Plaintiff was not confined under conditions which posed a risk of objectively, sufficiently serious harm because she had access to a nurse during "sick call". Sick call is a daily procedure during which a nurse is stationed in the inmate module to speak with inmates who have non-emergency concerns. Defendants acknowledge that Plaintiff was in "lock-down" during the time in question and that the sick call nurse does not go to each lock-down cell, but Defendants assert that the women's lock-down cells are located in the same area where the nurses conduct the sick call. Thus, if an inmate in a women's lock-down cell has a medical need, she can either call the sick call nurse to her cell or have a guard ask the sick call nurse to see her. [Mem. in Supp. of Motion at 9; Defs.' CSOF, Exh. I, Excerpts of 3/18/09 Depo. of Keith Wakabayashi ("Wakabayashi Depo."), at 26-27, 56-57.] Defendants note that there are no complaints from Plaintiff in the sick call log for the month of July 2007. [Defs.' CSOF, Decl. of Keith Wakabayashi ("Wakabayashi Decl."), at ¶ 10; Exh. J, sick call log.] Defendants also point out that, from July 12 to July 31, 2007, Plaintiff had daily access to the nurse who dispensed Plaintiff's medication to her, but there is no record in any medical charts that she presented any health complaints to that nurse. [Defs.' CSOF, Wakabayashi Decl. at ¶ 11.]
Defendants point out that Plaintiff concedes that Defendants Bauman, Marks, and Wakabayashi (collectively "Supervisor Defendants") did not provide any direct medical care to her. [Defs.' CSOF, Exh. G, Pltf.'s Admissions, Nos. 51-53.] In fact, none of the Supervisor Defendants had any direct contact with Plaintiff during the relevant time period, nor were any of them aware that Plaintiff experienced vaginal bleeding. [Defs.' CSOF, Aff. of Kay Bauman, M.D. ("Bauman Aff.") at ¶¶ 5-7, Aff. of Kenneth Zienkiewicz ("Zienkiewicz Aff."), M.D. at ¶¶ 4-9, Aff. of Roberta Marks ("Marks Aff.") at ¶¶ 4-5, Wakabayashi Decl. at ¶¶ 6-7.] Defendants therefore argue that Plaintiff cannot establish that each of the Supervisor Defendants personally participated in the alleged deprivation of Plaintiff's constitutional rights, nor can she prove that each of them had a sufficiently culpable state of mind to support a constitutional violation. Further, because the Supervisor Defendants did not directly treat Plaintiff and were unaware of her symptoms, Plaintiff cannot establish causation.
Defendants also assert that Defendants Bhalang and Bradley did not personally participate in Plaintiff's pregnancy care and were not aware of any complaints that she made about vaginal bleeding. [Defs.'
As to Defendant Yasunaga, Defendants emphasize that she only saw Plaintiff on one occasion, July 2, 2007. At that time, Plaintiff did not complain of any vaginal bleeding. [Defs.' CSOF, Yasunaga Aff. at ¶¶ 3, 6, Exh. A (records of 7/2/07 examination).] Defendants argue that no evidence exists to show that Defendant Yasunaga was aware of any other complaints that Plaintiff may have made. Defendants therefore contend that Plaintiff cannot prove that Defendant Yasunaga possessed a sufficiently culpable state of mind to support a § 1983 claim.
As to Defendant Melchor, Defendants argue that the only evidence Plaintiff provides to support her claim that Defendant Melchor denied her medical care is the statement of a prison guard, Reyetta Ofilas. Ms. Ofilas testified in her deposition that, on July 25, 2007, she discussed Plaintiff's complaint of vaginal bleeding with Defendant Melchor, who instructed Ms. Ofilas to give Plaintiff a sanitary napkin unless Plaintiff also complained of cramping. According to Ms. Ofilas, Defendant Melchor instructed her to send Plaintiff to the medical unit if the sanitary napkin was saturated. [Defs.' CSOF, Exh. C, Excerpts of 9/5/08 Depo. of Reyetta Ofilas, at 18-22.] Ms. Ofilas recorded the alleged conversation with Defendant Melchor in the "informer log". [Defs.' CSOF, Exh. B.] Defendants argue that, even assuming arguendo that this communication did occur, Defendant Melchor's response was within the protocol at OCCC. [Defs.' CSOF, Exh. L, Dep't of Pub. Safety—Health Care Div. Health Care Office—Nurse Protocol—Vaginal Bleeding ("Vaginal Bleeding Protocol").] Further, Defendants argue that Plaintiff fails to set forth any evidence that Defendant Melchor acted with a sufficiently culpable state of mind to support a § 1983 claim.
Defendants also argue that there is no evidence that Plaintiff's vaginal bleeding episode was connected with the stillbirth of her fetus. Defendants emphasize that Plaintiff's bleeding episode allegedly occurred on July 25, 2007, but she did not make any complaints of bleeding between her transfer to WCCC on August 2, 2007 and August 9, 2007. [Defs.' CSOF, Exh. G, Pltf.'s Admissions, Nos. 56-57.] In fact, on August 6, 2007, Plaintiff reported that she felt her baby kicking a lot. [Defs.' CSOF, Exh. D (WCCC Segregation Log); Exh. E, Excerpts of 8/25/08 Depo. of Joelynn Lyman, at 44, 52.] Defendants therefore argue that there was no violation of Plaintiff's constitutional rights.
As to Plaintiff's claim that Defendants were deliberately indifferent to a policy, custom, pattern, or practice that resulted in the deprivation of her constitutional rights, Defendants first note that a typical claim of this nature asserts that there was a policy, custom, pattern, or practice that resulted in the deprivation of the plaintiff's rights. Further, Plaintiff failed to identify the policy, custom, pattern, or practice that she alleges Defendants were deliberately indifferent to.
Defendants also argue that Plaintiff cannot establish that the Supervisor Defendants are liable under a theory of supervisory liability. Defendants emphasize that there is no respondeat superior liability under § 1983, which requires personal participation in the constitutional violation. The Second Amended Complaint does not
Even assuming, arguendo, that a constitutional violation occurred, Defendants contend that they are entitled to qualified immunity on Plaintiff's § 1983 claim.
As to Plaintiff's negligence claim, Defendants argue that they are entitled to summary judgment because Plaintiff cannot prove the essential elements of her claim by a preponderance of the evidence. Hawai'i law requires a plaintiff in a medical negligence action to produce expert testimony establishing that the defendant breached the applicable standard of care and that there is a causal nexus between the defendant's treatment, or lack thereof, and the plaintiff's injury. Defendants argue that Plaintiff cannot prove that she was deprived of any necessary medical treatment and, even if she was so deprived, she cannot establish that the deprivation caused her injury. Plaintiff's expert cannot testify to a reasonable degree of medical probability that the allegedly inadequate treatment which Defendants provided was the cause of the still birth. [Defs.' CSOF, Exh. K, Excerpts of 10/6/09 Depo. of Theodore N. Hariton, M.D. ("Hariton Depo."), at 54 (stating that his opinion as to the cause of the baby's death was "[p]robably the placenta was inadequate.... I can't prove this").] Defendants therefore contend that they are entitled to summary judgment on Plaintiff's negligence claim.
Further, even if Plaintiff could otherwise establish a medical negligence claim, Defendants are entitled to qualified immunity. Defendants argue that, where a plaintiff alleges a state tort claim against a non-judicial officer, she must prove malice by clear and convincing evidence. [Mem. in
As to Plaintiff's IIED claim, Defendants argue that Plaintiff cannot meet her burden of proof because nothing occurred while Plaintiff was at OCCC which would constitute outrageous conduct sufficient to support an IIED claim. Further, Plaintiff has not presented any evidence that she suffered extreme emotional distress. Plaintiff admitted in her interrogatory responses that she does not have any disabling mental or physical condition. [Mem. in Supp. of Motion at 23; Defs.' CSOF, Exh. H, Pltf.'s Answers to Defs. Melchor, Bhalang & Bradley's First Request for Answers to Interrogs. ("Pltf.'s Answers to Interrogs."), No. 6-7.] Further, there is no evidence that Plaintiff has seen a doctor for her alleged emotional distress. Defendants therefore contend that they are entitled to summary judgment on Plaintiff's IIED claim.
Finally, Defendants argue that they are entitled to summary judgment as to Plaintiff's claim for punitive damages because, under Hawai'i law, punitive damages are a remedy, not an independent cause of action.
Plaintiff states that, after her examination on July 2, 2007, Defendant Yasunaga ordered an ultrasound for Plaintiff, as we all as a Kapiolani clinic visit with an obstetrician/gynecologist ("ob/gyn"). Defendant Zienkiewicz, the responsible physician at OCCC, signed the written referral orders as the requesting physician. [Defs.' CSOF, Zienkiewicz Aff. at ¶ 6.] Plaintiff, however, never had the ultrasound or the ob/gyn consult while she was at OCCC. [Pltf.'s CSOF, Exh. 2, Castro Depo., at 52.]
Plaintiff's vaginal bleeding did not begin until a day or two after she saw Defendant Yasunaga. [Id. at 41-42 (bleeding started three or four days after the incident with the guards).] Plaintiff was confined to a segregation cell at the time and therefore repeatedly called various guards to her cell window in order to report her bleeding and request medical care. Plaintiff spoke to guards Hattie Reis (now known as Hattie Phelps), Wanda Nunes (now known as Wanda Brown), and Reyetta Ofilas. Plaintiff was informed multiple times that the medical unit would not see her unless she was bleeding through her sanitary pad or her bleeding was accompanied by cramping. [Id. at 43, 48-52.]
After her transfer to WCCC on August 2, 2007, Plaintiff noticed that her baby was no longer kicking. [Id. at 63.] Plaintiff was eventually taken to Kapiolani, where her daughter, Briandalynne Castro, was delivered stillborn on August 11, 2007.
Plaintiff argues that Defendants are liable under 42 U.S.C. § 1983 because their failure to provide, and/or delay in providing, necessary medical care to her and her daughter constituted cruel and unusual punishment. It is well established that the Eighth Amendment right against cruel an unusual punishment protects against the denial of medical care and that the Eighth and Fourteenth Amendments guarantee that inmates and detainees receive constitutionally adequate medical care. Further, Defendants committed the violations while acting under color of state law.
Plaintiff also argues that the Supervisor Defendants can be held liable even if they did not provide any direct medical care to her. Plaintiff states that her claims against the Supervisor Defendants are not based on respondeat superior liability or
Plaintiff states that, during sick call, inmates who are housed in the general population line up and wait for his or her turn to talk to the nurse. [Id. at 46.] Segregated inmates, however, are unable to participate because they cannot stand in line and they are prohibited from talking to anyone other than the guards. [Pltf.'s CSOF, Castro Aff. at ¶ 2; Exh. 2, Castro Depo., at 46.] Plaintiff notes that DPS and OCCC have specific sick call policies and procedures for segregated inmates. DPS Procedure 4.4 requires that segregated inmates have daily access to health care staff and that each segregated inmate be asked during sick call if they have a health care request. Plaintiff notes that Defendant Zienkiewicz recommended this policy for approval by the director of DPS. [Pltf.'s CSOF, Exh. 4 (DPS Policy and Procedures re Sick Call, dated 12/30/98).] OCCC Procedure 4.4 contains a similar requirement and specifically states that the sick call staff must: visit each segregation unit; observe and question each inmate about his or her health status; and record the visit in the appropriate log book. Plaintiff notes that Defendant Wakabayashi recommended this policy. [Pltf.'s CSOF, Exh. 5, OCCC Policy and Procedures Manual re Sick Call, dated 5/28/02.] The requirement that inmates in segregation be monitored daily by health care staff is also included in OCCC Policy 3.1 and Procedure 4.2. [Pltf.'s CSOF, Exh. 6, OCCC re Health Evaluation of Inmates in Segregation, dated 7/17/93 ("OCCC Segregation Policy & Procedures").]
Although Plaintiff's pregnancy was considered "high-risk", [Pltf.'s CSOF, Exh. 7, Excerpts of 6/8/10 Cont. Depo. of Kenneth Zienkiewicz, M.D., Vol. II ("Zienkiewicz Depo. II"), at 99-100; Exh. 8, Excerpts of 6/7/10 Depo. of Kay Bauman, M.D., at 17-18,] and she complained of vaginal bleeding, Plaintiff was never visited, observed, or questioned by health care personnel during the approximately one month that she was in segregation. Plaintiff argues that the reason no health care personnel went to her cell to inquire about her health status was that Defendants Wakabayashi and Marks ignored DPS and OCCC sick call policies and procedures and did not require the nurses under their supervision to perform the daily visits to female inmates in segregation. Although Defendants may argue that those policies and procedures did not apply to Plaintiff because she was in lock-down, not in segregation, OCCC records clearly indicate that she was in administrative segregation. [Pltf.'s CSOF, Exh. 9, Def. Mark Patterson's Response to Plaintiff's First Request for Prod. of Docs., at OCCC0109, OCCC0177 (excerpts of informer logs).] Further, OCCC's policy manual defines "segregation" as including all forms of segregation
Plaintiff notes that, during his deposition as Defendants' Rule 30(b)(6) witness, Defendant Wakabayashi admitted that, although sick call nurses are required to make daily visits to male prisoners in segregation, this is not required for female prisoners in segregation. [Pltf.'s CSOF, Exh. 10, Excerpts of 3/18/09 30(b)(6) Depo. of Keith Wakabayashi ("Wakabayashi Depo."), at 64-65.] He also admitted that he and Defendant Marks made the decision not to require the nurses to make the daily visits or inquires to the segregated female inmates. [Id. at 107.] Plaintiff argues that this practice jeopardizes the health of female inmates in segregation and, had Defendants Wakabayashi and Marks enforced the sick call procedures for segregated female inmates, her vaginal bleeding would have been detected and addressed.
Further, Plaintiff argues that Defendants Wakabayashi and Marks are liable because they trained Defendants Melchor, Bhalang, and Bradley, who decided that Plaintiff's reports of vaginal bleeding did not require medical attention. [Mem. in Opp. at 17; Pltf.'s CSOF, Exh. 11, Excerpts of 9/5/09 Depo. of Hattie Reis ("Reis Depo."), at 18-22 (discussing Ms. Reis' reports of Plaintiff's bleeding to the medical unit).]
As to Defendants Zienkiewicz, Yasunaga, and Bauman, Plaintiff contends that they are liable because they were responsible for her prenatal care and were aware of her high risk pregnancy. Defendant Bauman, the OCCC medical director, and Defendant Zienkiewicz, the responsible physician, both oversee or supervise Defendant Yasunaga. Defendant Zienkiewicz testified that he was responsible for supervising the care Defendant Yasunaga provided to inmates and Defendant Bauman was responsible for ensuring that Defendant Yasunaga followed the applicable policies and procedures. [Pltf.'s CSOF, Exh. 12, Excerpts of 9/11/09 Depo. of Kenneth Zienkiewicz, M.D., Vol. I ("Zienkiewicz Depo. I"), at 9-10, 37-38.] OCCC policies and procedures require the commencement of prenatal care upon the confirmation of pregnancy, and they require that an OCCC physician provide or coordinate the prenatal care. [Pltf.'s CSOF, Exh. 13, OCCC Policies and Procedures Manual re Pregnancy Counseling and Care, dated 7/28/99, Procedure 4.5.] Defendant Zienkiewicz was the OCCC physician in 2007. Thus, although Defendant Yasunaga was primarily responsible for Plaintiff's prenatal care, Defendant Zienkiewicz was responsible for supervising all of the care she provided. [Pltf.'s CSOF, Exh. 7, Zienkiewicz Depo. II, at 129-30.] Both Defendant Yasunaga and Defendant Zienkiewicz were responsible for examining pregnant inmates and referring them to Kapiolani to see an ob/gyn. After a hospital referral, Defendant Yasunaga was responsible for following up to ensure that the inmate received the care that was ordered. [Pltf.'s CSOF, Exh. 10, Wakabayashi Depo., at 18-20.]
Plaintiff argues that she did not receive the ultrasound and ob/gyn consult that Defendants Yasunaga and Zienkiewicz ordered because she was brought late to her appointment, through no fault of her own. [Mem. in Opp. at 19 (citing Exh. 2, Castro Depo., at 78).] Although Defendants Yasunaga and Zienkiewicz knew that Plaintiff had a high risk pregnancy when they ordered the ultrasound and ob/gyn consult, neither of them did anything to ensure that she received them. [Pltf.'s CSOF, Exh. 7, Zienkiewicz Depo. II, at 105-06 (discussing high risk pregnancy).] According
As to Defendants Melchor, Bhalang, and Bradley, Plaintiff argues that they were deliberately indifferent to her serious medical need and failed to provide her with medical care. Three OCCC guards testified that they reported Plaintiff's bleeding to the OCCC medical unit, but the nurses there determined that Plaintiff did not need medical attention. Ms. Reis testified that she did not remember who she spoke to the first time she called the medical unit about Plaintiff's bleeding, but she knows that she eventually spoke to all three of the nurses about the matter. According to Ms. Reis, all three of the nurses had the same response: it was only a concern if Plaintiff was bleeding through her sanitary pad. [Pltf.'s CSOF, Exh. 11, Reis Depo., at 18-22, 29-32.] Ms. Ofilas testified that she noted Plaintiff's complaints about vaginal bleeding in the informer log. She wrote that she called Defendant Melchor and he said that, if Plaintiff was not complaining about cramping, just give her a sanitary napkin. He told her to send Plaintiff down if the sanitary napkin was saturated. [Pltf.'s CSOF, Exh. 15, Excerpts of 9/5/08 Depo. of Reyetta Ofilas ("Ofilas Depo."), at 19, 21.] Ms. Nunes testified that she called the medical unit to report that Plaintiff was spotting, but she did not remember who she spoke to. [Pltf.'s CSOF, Exh. 16, Excerpts of 8/13/08 Depo. of Wanda Nunes ("Nunes Depo."), at 14-15, 17.] Defendants argue that, even if Defendant Melchor responded in this manner, it was consistent with OCCC's nursing protocol. Plaintiff responds that Defendants Bhalang's and Bradley's testimony contradict this position because Defendant Bhalang would have had the inmate sent to the medical unit to check the bleeding, and Defendant Bradley would have seen the inmate immediately. [Pltf.'s CSOF, Exh. 17, Excerpts of 6/29/09 Depo. of Wanna Bhalang ("Bhalang Depo."), at 17; Exh. 18, Excerpts of 6/29/09 Depo. of Tomi Bradley ("Bradley Depo."), at 8-9.] Dr. Hariton opined that, had Defendants Melchor, Bhalang, and Bradley properly addressed Plaintiff's complaints of vaginal bleeding, Plaintiff could have given birth to a live child.
Plaintiff notes that Defendants Melchor, Bhalang, and Bradley deny having been notified of Plaintiff's complaints of bleeding. Plaintiff, however, argues that the guards who have identified them have no reason to malign them, nor do the guards have anything to gain from giving false testimony. Plaintiff contends that, at the very least, there is a genuine issue of material fact regarding whether Defendants Melchor, Bhalang, and Bradley were deliberately indifferent to Plaintiff's serious medical needs and whether they denied her medical care in violation of her constitutional rights. Plaintiff therefore argues that Defendants Melchor, Bhalang, and Bradley are not entitled to summary judgment as to the § 1983 claim.
Plaintiff also argues that Defendants are not entitled to qualified immunity as to the § 1983 claim because, viewing the evidence in the light most favorable to Plaintiff, there are genuine issues of material fact regarding whether Defendants' conduct deprived Plaintiff of constitutionally adequate medical care. Further, Plaintiff's constitutional right to adequate medical care was clearly established at the time. Reasonable persons in Defendants' positions would have known, or should have known, that Plaintiff's vaginal bleeding required medical care and that the denial of such care was a violation of her constitutional rights.
As to her negligence claim, Plaintiff argues that she has presented a prima facie case, and therefore Defendants are not entitled to summary judgment. Prison officials clearly have a duty to ensure that inmates are provided with adequate medical care. As noted supra, Dr. Hariton testified that the prenatal care that Defendants Yasunaga and Zienkiewicz provided was grossly inadequate. Dr. Hariton also testified that, had Defendants Melchor, Bhalang, and Bradley responded to Plaintiff's complaints of vaginal bleeding or had Plaintiff received the ultrasound and ob/ gyn consultation that Defendants Yasunaga and Zienkiewicz ordered, Plaintiff could have given birth to a live baby. [Id. at 24, 29-32.]
Plaintiff also argues that she has presented a prima facie case as to her IIED claim. Defendants contend that Plaintiff cannot prove that she suffered serious emotional distress because she did not seek treatment from a doctor and she admitted that she does not have a disabling mental or physical condition. Plaintiff, however, argues that there is no case law imposing such requirements. Plaintiff argues that she has presented sufficient evidence of serious emotional distress to defeat summary judgment because "[l]osing a child is undoubtedly one of the most painful of all human experiences". [Mem. in Opp. at 28.] Further, Plaintiff suffered "sadness, depression, and distrust of prison medical personnel." [Defs.' CSOF, Exh. H, Pltf.'s Answers to Interrogs., No. 6.] OCCC social workers also stated in August 29, 2007 and August 30, 2007 progress notes that Plaintiff suffered from "Bereavement" and "she broke down the other day when talking . . . about the lost. . . pregnancy. . . ." [Pltf.'s CSOF, Exh. 19, Def. Mark Patterson's Response to Pltf.'s First Request for Production of Docs., at DPS0009, DPS0011.]
Finally, Plaintiff acknowledges that cases recognize that there is no independent cause of action for punitive damages, but she argues that some cases have allowed a separate claim for punitive damages to proceed. [Mem. in Opp. at 28-29 (citing Simms v. City & County of Honolulu, 2008 WL 3349069, 5-7, 2008 U.S. Dist. LEXIS 61819, 15-17 (D.Haw. Aug. 12, 2008)).] Even if Plaintiff's claim for
Plaintiff argues that punitive damages are available in connection with the § 1983 claim because Defendants' conduct constitutes reckless or callous indifference to the federally protected rights of Plaintiff and her unborn child. [Id. at 29 (citing Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)) (some citations omitted).] Plaintiff also argues that punitive damages are available in connection with her state tort claims because Defendants acted with malice, oppression or gross negligence. [Id. (citing Ditto v. McCurdy, 98 Haw. 123, 131, 44 P.3d 274, 282 (2002); Leialoha v. MacDonald, 2008 WL 2736020, 20-21, 2008 U.S. Dist. LEXIS 54105, 63-64 (D.Haw. July 11, 2008)).] Plaintiff argues that there are genuine issues of material fact regarding punitive damages, and therefore Defendants are not entitled to summary judgment.
In their Reply, Defendants argue that, even if there are some facts in dispute, they are not material and do not preclude summary judgment because Plaintiff cannot establish causation. Plaintiff cannot prove what caused the still birth. Although her expert, Dr. Hariton, testified what the cause of the fetus' death "probably" was, he admits that he cannot prove the cause.
Defendant first notes that Plaintiff has tried to create an issue of fact regarding whether there was a violation of OCCC policies and procedures regarding health care for segregated inmates. Defendant asserts that female inmates in the lock-down cells are in a completely different situation than the male inmates in segregation. The women's lock-down cells are located in the main open area of the women's module, the same area where the sick call is conducted. Defendants assert that a female inmate in a lock-down cell can participate in the sick call by going to their cell doors and calling out for the nurse to come see them. [Reply, Decl. of Marie Manuele Gavigan ("Gavigan Reply Decl."), Exh. O, Excerpts of 8/31/10 Depo. of Roberta Marks ("Marks Depo."), at 19-25, 28, 32-34, Exh. 2 (photograph of area where lock-down cells are and where sick call is conducted).] Defendants argue that Plaintiff has not presented any admissible evidence to dispute Defendants' representation of the sick call procedure; she has only made arguments as to her interpretation of the procedure. Defendants acknowledge the policies and procedures regarding health care for segregated inmates, but they argue that there is no admissible evidence that they applied to Plaintiff. Those policies and procedures only apply to the male inmates in segregation units; there is no specific segregation unit for female inmates. Defendants assert that, because of the location of female lock-down cells, there is no reason to apply the segregation unit policy to female inmates in lock-down. They can be seen by the guards' control station and they can get the attention of anyone in the open area. [Id. at 32-33.] Defendants note that OCCC's medical unit was accredited by the National Commission on Correctional Health Care ("NCCHC") in 2005. Defendant Marks discussed the women's lock-down with the NCCHC auditor, who confirmed that it was not considered segregation. [Reply, Decl. of Roberta Marks ("Marks Reply Decl.") at ¶¶ 15-16.]
Further, Defendants contend that Plaintiff did have access to medical care during July 2007. Although Plaintiff disputes that she disputes whether she took medication
Plaintiff disputes Defendants' claim that she never made any complaints of vaginal bleeding to the sick call nurse or the nurse who dispensed her medication by claiming that she did not know who those nurses were each day. [Defs.' CSOF Nos. 36-37; Pltf.'s CSOF Nos. 36-37.] Defendant argues that whether Plaintiff knew the nurses' names is not relevant. A sick call nurse was in the women's module on a daily basis in an area where Plaintiff could see and hear the nurse, but Plaintiff did not present any complaints to the sick call nurse. Similarly, a nurse brought Plaintiff her medication on a daily basis, but Plaintiff did not present to complaints to that nurse. Plaintiff has not identified to any evidence to the contrary.
Plaintiff also disputes Defendants' claim that she reported on August 6, 2007 that she felt her baby kicking a lot and that she was not experiencing any cramping or bleeding by stating that she does not recall making those statements. [Defs.' CSOF No. 41; Pltf.'s CSOF No. 41.] Defendants emphasize that Plaintiff did not deny making the statements; she merely does not remember making them. There is no admissible evidence to dispute the documentation of her statements.
Defendants also emphasize that Plaintiff cannot dispute the fact that her own expert, Dr. Hariton, cannot prove the cause of her fetus' death and that many times the cause of a still birth cannot be determined. [Defs.' CSOF Nos. 42-43; Pltf.'s CSOF Nos. 42-43.] Defendants argue that these facts are critical to this case. Although Dr. Hariton has opined that, had the ob/gyn consultation that Defendant Yasunaga ordered been done, there would have been a good chance of saving the child, [Pltf.'s CSOF, Add'l Material Facts in Dispute, No. 10,] Defendants argue that this is pure speculation. Defendants contend that Plaintiff cannot prevail on any of her claims because she has no evidence of what the cause of the fetus' death was. Defendants note that there could be many reasons for the fetus' death, including genetic disorders as a result of incestuous parentage, and Plaintiff's prenatal smoking and use of methamphetamine. [Gavigan Reply Decl., Exh. U, Excerpts of 10/12/09 Depo. of Greigh I Hirata, M.D., at 128, 130, 134, Exh. V, Excerpts of 6/7/10 Depo.
Defendants argue that Plaintiff has not identified any admissible evidence that Defendants were deliberately indifferent to her medical needs. She has not shown that their actions or omissions were intended to cause harm or were likely to cause harm.
Defendants also argue that, even assuming for purposes of this Motion that the guards called the medical unit as alleged, whoever responded to the call instructed the guards to monitor Plaintiff. If Plaintiff was not cramping and her alleged bleeding did not saturate a pad, she did not need to be seen immediately. It is undisputed that Plaintiff was not cramping or experiencing any pain, [Pltf.'s CSOF, Exh. 2, Castro Depo., at 43, 48-49; Defs.' CSOF, Exh. G, Pltf.'s Admissions, No. 48,] and Plaintiff testified that she was using a panty liner as opposed to a pad. [Pltf.'s CSOF, Exh. 2, Castro Depo., at 45, 49-50.] Defendants argue that this is evidence of spotting and not bleeding. Further, Ms. Reis testified that, when she spoke with Defendant Melchor, he asked her if Plaintiff was experiencing heavy bleeding and she said no and that the bleeding was not through the pad. [Pltf.'s CSOF, Exh. 11, Reis Depo., at 30.] Thus, Defendants argue that the nurse's decision not to see Plaintiff immediately under the circumstances was not a denial of medical care.
Defendants note that Defendant Bradley denies knowing who Plaintiff is and that Plaintiff disputes this claim. Plaintiff, however, has no admissible evidence to substantiate her position. Defendants also argue that Plaintiff has no evidence that Defendants Melchor, Bhalang, and Bradley acted with a sufficiently culpable state of mind to support a constitutional violation when they allegedly determined that Plaintiff did not need to be seen immediately for her complaints of vaginal bleeding.
Plaintiff does not dispute the fact that the Supervisor Defendants did not treat her in 2007. Defendants argue that Plaintiff has not presented any evidence to support her claim that the Supervisor Defendants failed to train or supervise. Defendants also contend that Plaintiff's claim that the Supervisor Defendants failed to follow or enforce clearly established policy and procedure is not supported by admissible evidence. Further, this claim is based on the incorrect assertion that Plaintiff was in segregation. Defendants argue that the rules for sick calls to inmates in segregation did not apply to Plaintiff, who was merely in lock-down.
Defendants also argue that Plaintiff does not have support for her claim that Defendants Zienkiewicz, Yasunaga, and Bauman provided inadequate prenatal care to Plaintiff. Defendants note that Plaintiff kept her pregnancy a secret and the State did not learn that she was pregnant until June 30, 2007. [Gavigan Reply Decl., Exh. O, Marks Depo., at 15-16.] Defendants argue that Defendant Yasunaga saw her immediately and ordered lab work, which was done immediately. [Marks Reply Decl. at ¶ 18; Exh. S, Clinical Laboratories of Hawaii, LLP Laboratory Reports ("CLH Lab Reports"); Exh. T, DPS Urinalysis Report.] Both Defendant Yasunaga and Defendant Zienkiewicz reviewed the results of those tests. [Marks Reply Decl. at ¶ 18.] Although Dr. Hariton opined that it was ludicrous for Defendant Yasunaga to order lab work for one month after the examination, the lab work was ordered, done, and reviewed immediately. Dr. Hariton's assumptions were incorrect and therefore he does not have support for his opinion that the prenatal care provided at OCCC was grossly inadequate. Defendants also note that there is no evidence of
Defendants argue that they are entitled to qualified immunity as to the § 1983 claim because there is no proof that Plaintiff's constitutional rights were violated. They also argue that they are entitled to qualified immunity as to the negligence claim because Plaintiff cannot show that any of the defendants acted with malice. In fact, Defendants argue that they are entitled to qualified immunity on all of Plaintiff's claims because Plaintiff's memorandum in opposition to the Motion only addressed qualified immunity as to the § 1983 claim.
Finally, Defendants reiterate that a prayer for punitive damages is not a separate claim. Plaintiff, however, cites the "`discriminatory sick call practice'" as a basis for punitive damages. [Reply at 16 (quoting Mem. in Opp. at 29).] Defendants argue that the Court must disregard this argument because the Second Amended Complaint does not contain any allegations of discriminatory practices.
Pursuant to Federal Rule of Civil Procedure 56(c)(2), a party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Rodriguez v. Gen. Dynamics Armament & Technical Prods., Inc., 696 F.Supp.2d 1163, 1176 (D.Hawai'i 2010) (some citations omitted).
Section 1983 states, in pertinent part:
In other words, "[t]o state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).
Plaintiff's § 1983 claim alleges that Defendants deprived her of her constitutional right to medical care while she was an inmate at OCCC. The Eighth Amendment prohibition of cruel and unusual punishment guarantees adequate medical care to prison inmates. See Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). During the period at issue, Plaintiff was apparently a pre-trial detainee. The Ninth Circuit has stated that:
Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017-18 (9th Cir.2010) (emphasis in original).
Defendant Melchor has stated that he does not recall any report, complaint, or call from a guard that plaintiff was experiencing vaginal bleeding. Defendant Melchor stated that he did receive calls from time to time about inmates experiencing vaginal bleeding, but he could not "pinpoint" a call about Plaintiff. [Defs.' CSOF, Exh. M, Excerpts of 5/7/09 Depo. of Leroy Melchor ("Melchor Depo."), at 27.] Defendants Bhalang and Bradley have stated that they did not receive any telephone calls about Plaintiff experiencing vaginal bleeding while pregnant at any time during 2007. [Defs.' CSOF, Bhalang Aff. at ¶ 5; Bradley Aff. at ¶ 5.]
Plaintiff, however, has identified testimony from three OCCC guards who reported Plaintiff's complaints of vaginal bleeding and her request for medical care. Ms. Reis testified that she made a number of calls to the medical unit about the matter and that, at one time or another, she spoke to Defendants Melchor, Bhalang, and Bradley. [Pltf.'s CSOF, Exh. 11, Reis Depo., at 18-21.] Ms. Ofilas testified that she spoke to Defendant Melchor about the matter on July 25, 2007 and that she wrote a note about it in the informer log. [Pltf.'s CSOF, Exh. 15, Ofilas Depo., at 19-21.] Ms. Nunes testified that she reported the matter to the medical unit, but she did not remember who she spoke to. [Pltf.'s CSOF, Exh. 16, Nunes Depo., at 14-15, 17.] The Court therefore finds that, viewing the evidence in the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether Defendants Melchor, Bhalang, and Bradley were aware of Plaintiff's complaints of vaginal bleeding.
Defendant Melchor testified that his response to an inmate who is experiencing vaginal bleeding "var[ies] depending on what the problem is." [Defs.' CSOF, Exh. M, Melchor Depo., at 27.] Ms. Reis testified that the third time Plaintiff complained about her vaginal bleeding, she showed Ms. Reis her pad. When Ms. Reis spoke to Defendant Melchor, he asked her if Plaintiff had heavy bleeding, i.e., was Plaintiff bleeding through the pad. Ms. Reis responded that Plaintiff was not bleeding through her pad, but that Ms. Reis believed there was enough bleeding that Plaintiff should be seen in the medical unit. Defendant Melchor responded that he would get back to the module. Ms. Reis did not hear back from him by the end of her shift and, when she returned to work for her next shift, Plaintiff informed her that she had not been seen. [Pltf.'s CSOF, Exh. 11, Reis Depo., at 29-31.] Defendant Bhalang stated that, in 2007, if someone called her and reported that a pregnant inmate was experiencing vaginal bleeding, she "would have immediately had the inmate sent down to sick call regardless of whether the inmate was in `lockdown' or the regular population." [Defs.' CSOF, Bhalang Aff. at ¶ 6.] During her deposition, Defendant Bhalang testified that, if she received a phone call about an inmate experiencing vaginal bleeding, she would call them down to the medical unit to check whether the inmate was bleeding or not and check any symptoms. If the inmate was pregnant, Defendant Bhalang would refer her to see the OCCC physician. [Pltf.'s CSOF, Exh. 17, Bhalang Depo., at 17-18.] Defendant Bradley stated that, in 2007, if someone called her and reported that a pregnant inmate was experiencing
Defendants argue that, assuming arguendo, that Defendants Melchor, Bhalang, and Bradley responded to Plaintiff's complaints as alleged,
Moreover, even if one assumes arguendo that the Vaginal Bleeding Protocol applied in Plaintiff's situation, there is a genuine issue of fact as to whether Defendants Melchor, Bhalang, and Bradley properly applied the protocol. The protocol looks first at the following inquiries:
[Id. at 1.] According to the guards' testimony, Defendants Melchor, Bhalang, and Bradley were primarily concerned with whether Plaintiff had saturated her sanitary pad and whether she was cramping. [Pltf.'s CSOF, Exh. 11, Reis Depo., at 20-21, Exh. 15, Ofilas Depo., at 18-19.] Quantity is the first inquiry, but there is no indication in the existing record that
Viewing the evidence in the light most favorable to Plaintiff, this Court finds that there are genuine issues of material fact as to the adequacy of Defendants Melchor, Bhalang, and Bradley's responses to reports of Plaintiff's vaginal bleeding.
Plaintiff also argues that Defendants Yasunaga, Zienkiewicz, and Bauman violated her constitutional right to adequate medical care by failing to provide her with proper prenatal care. Defendant Yasunaga was primarily responsible for Plaintiff's medical care. Defendant Zienkiewicz was responsible for supervising all of the care that Defendant Yasunaga provided, with the exception of obstetric and gynecologic care. [Pltf.'s CSOF, Exh. 7, Zienkiewicz Depo. II, at 129-30, Exh. 12, Zienkiewicz Depo. I, at 37-38.] Defendant Zienkiewicz was also responsible for screening Defendant Yasunaga's request for outside medical care. [Pltf.'s CSOF, Exh. 7, Zienkiewicz Depo. II, at 130.] Defendant Bauman supervised both Defendant Yasunaga and Defendant Zienkiewicz. [Pltf.'s CSOF, Exh. 12, Zienkiewicz Depo. I, at 12, 37-38.]
Plaintiff argues that Defendants Yasunaga and Zienkiewicz failed to provide her with constitutionally adequate prenatal care because they did nothing to ensure that she received the ultrasound and ob/ gyn consultation that Defendant Yasunaga ordered for her in a timely manner. Further, Defendant Bauman failed to supervise them. Plaintiff's expert, Dr. Hariton opined that Plaintiff received "grossly inadequate prenatal care" at OCCC.
The Court, however, notes that "[a] showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004) (citing Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002) ("Mere medical malpractice does not constitute cruel and unusual punishment.") (citation omitted); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990) (stating that even gross negligence is insufficient to establish a constitutional violation)). In order to avoid summary judgment, Plaintiff must show that the decisions made by Defendants Yasunaga, Zienkiewicz, and Bauman "`den[ied], delay[ed], or intentionally interfere[d] with [Plaintiff's] medical treatment.'" Id. at 1061 (quoting Hallett, 296 F.3d at 744) (some alterations in original).
Defendant Yasunaga ordered an ultrasound and ob/gyn consultation for Plaintiff at Kapiolani, and Defendant Zienkiewicz signed off the requests. According to the Consultation Record, the ob/gyn consultation was rescheduled at least twice. Next to "Appointment Date" are the dates "07/24/07", "08/01/07" and "08/14/07", but the first two dates are crossed out. [Defs.' CSOF, Yasunaga Aff., Exh. A at 7.] Defendant Zienkiewicz testified that, once Defendant Yasunaga orders an outside consultation, "the responsibility moves to the scheduling secretary and the transportation department and Kapiolani to make sure that the orders are implemented." [Pltf.'s CSOF, Exh. 7, Zienkiewicz Depo. II, at 105.] Plaintiff testified that she missed one of her appointments because she was brought there late and Kapiolani asked her to reschedule. [Pltf.'s CSOF, Exh. 2, Castro Depo., at 52.] Even assuming that Defendants Yasunaga and Zienkiewicz, and their supervisor Defendant Bauman, were responsible for ensuring that Plaintiff received the outside services as ordered, that alone is not enough to establish deliberate indifference. Even viewing the record in the light most favorable to Plaintiff, this Court cannot find that Defendants Yasunaga, Zienkiewicz, and Bauman's failure to ensure that Plaintiff received those services went beyond mere negligence, or even gross negligence. This Court cannot find that their actions and omissions constituted denial, delay, or deliberate interference with Plaintiff's medical treatment. Defendants' Motion is therefore GRANTED as to Plaintiff's § 1983 claim against Defendants Yasunaga, Zienkiewicz, and Bauman based on their failure to follow up on the outside care ordered after the July 2, 2007 examination.
Plaintiff further claims that the Supervisor Defendants are liable under § 1983 for their failure to train and supervise and for their establishment of a policy and practice which Plaintiff argues led to the deprivation of her constitutional rights. Generally, respondeat superior or vicarious liability does not exists under § 1983 unless state law imposes such liability. See Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.1991). Hawai'i law recognizes respondeat superior liability, and therefore an employer may be liable for its employees' negligent acts if they occur within the scope of employment. See Wong-Leong v. Hawaiian Indep. Refinery, 76 Haw. 433, 438, 879 P.2d 538, 543 (1994). Plaintiff, however, has not identified any Hawai'i statute or case law imposing such liability on individual supervisors.
Supervisors may also be liable for implementing "a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Redman, 942 F.2d at 1446 (citations and quotation marks omitted).
Defendant Marks supervises the OCCC nursing staff, and she reports to Defendant Wakabayashi. According to Defendant Wakabayashi, Defendant Marks schedules, evaluates, and gives assignments to the nurses on a day-to-day basis, but Defendant Wakabayashi also reviews some of the nurses' work, depending on the situation. [Pltf.'s CSOF, Exh. 10, Wakabayashi Depo., at 10-12; Gavigan Reply Decl., Exh. O, Marks Depo., at 13.] Plaintiff therefore argues that Defendants Wakabayashi and Marks are liable for Defendants Melchor, Bhalang, and Bradley's failure to respond to her reports of vaginal bleeding because Defendants Wakabayashi and Marks were responsible for training and supervising them. Viewing the evidence in the light most favorable to Plaintiff, there were a number of reports of Plaintiff's vaginal bleeding to the OCCC nurses over a number of days. All of the nurses responded in the same manner: Plaintiff did not need to be seen in the medical unit unless she was cramping or saturating a sanitary pad. Based on the consistency of the nurses' response over a number of days and the fact that Defendants Marks and Wakabayashi reviewed the nurses' work on a daily basis, the Court finds that there are genuine issues of material fact as to whether Defendants Marks and Wakabayashi's actions or inactions in the training or supervision of Defendants Melchor, Bhalang, and Bradley, or Defendants Marks and Wakabayashi's acquiescence in Defendants Melchor, Bhalang, and Bradley's responses to the reports of Plaintiff's vaginal bleeding caused the alleged deprivation of Plaintiff's constitutional rights.
Further, Defendant Wakabayashi testified that he and Defendant Marks did not require the nurses under their supervision to go to each of the women's lock-down cells during sick call to speak to each inmate.
[Pltf.'s CSOF, Exh. 6, OCCC Segregation Policy & Procedures, 3.0.]
Thus, inmates in the women's lock-down cells are expected either to call out to the sick call nurse to come and see them or to ask a guard to have the sick call nurse see them. [Defs.' CSOF, Exh. I, Wakabayashi Depo., at 26-27, 56-57.] Plaintiff testified that, while she was in lock-down, she was not allowed to communicate with anyone other than the guards, and thus she could not speak directly to the sick call nurse. [Pltf.'s CSOF, Castro Aff. at ¶ 2; Exh. 2, Castro Depo., at 46.] As discussed supra, Plaintiff repeatedly asked the guards for medical attention for her vaginal bleeding, but she did not receive any. If the sick call nurses had asked Plaintiff about her health status on a daily basis, as directed by OCCC policy and procedures, Plaintiff could have reported her vaginal bleeding at that time. Dr. Hariton testified that, had Plaintiff been evaluated after her bleeding episodes, "even as late as 7/25, the pregnancy [would have been] still salvageable with a live child." [Pltf.'s CSOF, Exh. 14, Hariton Depo., at 24.]
Viewing the record in the light most favorable to Plaintiff, the Court finds that: the OCCC policies and procedures establish that OCCC was aware of the serious health risks of failing to monitor the health of inmates in segregation; by its terms, the policies and procedures appear to apply to the women's lock-down cells; Defendants Wakabayashi and Marks consciously disregarded the serious health risks by failing to apply the policies and procedures to the inmates in the women's lock-down cells; and the lack of direct access to health services during her confinement to a lock-down cell was a cause of Plaintiff's injury. Further, as the Medical Director overseeing OCCC, Defendant Bauman was ultimately responsible for overseeing "the quality of medical care at . . . OCCC." [Defs.' CSOF, Bauman Aff. at ¶ 4.]
The Court notes that the heading of the section in Plaintiff's Memorandum in Opposition discussing these claims asserts "SUPERVISOR DEFENDANTS BAUMAN, ZIENKIEWICZ, MARKS AND
Defendants argue that, even assuming arguendo that a constitutional violation occurred, they are entitled to qualified immunity. An official is entitled to qualified immunity under § 1983 if the official "`does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir.2005) (quoting Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir.1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982))).
Courts use a two-part analysis to determine whether a defendant is entitled to qualified immunity.
Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir.2007) (alterations in original). The Supreme Court has held that, while the sequence of the Saucier analysis is often appropriate, it is not mandatory. See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). "The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding
For the reasons stated supra, this Court finds that, viewing the evidence in the light most favorable to Plaintiff, the following alleged conduct constitutes a violation of Plaintiff's constitutional right to adequate health care: Defendants Melchor, Bhalang, and Bradley's response to reports of Plaintiff's vaginal bleeding; Defendants Wakabayashi and Marks' inadequate training and supervision of Defendants Melchor, Bhalang, and Bradley; and Defendants Wakabayashi and Marks' failure to enforce OCCC's policies and procedures for the health evaluation of inmates in segregation. At the time of Defendants' alleged misconduct, "persons in custody had the established right to not have officials remain deliberately indifferent to their serious medical needs." Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir.1996).
Defendants' Motion is therefore DENIED as to Plaintiff's § 1983 claims against: Defendants Melchor, Bhalang, and Bradley based on their responses to the reports of Plaintiff's vaginal bleeding; Defendants Wakabayashi and Marks based on their supervision of Defendants Melchor, Bhalang, and Bradley; Defendants Wakabayashi and Marks based on their failure to enforce OCCC policies and procedures regarding the health evaluation of inmates in segregation; and Defendant Bauman's responsibility for these actions in connection within her duty to oversee the quality of care at OCCC. To the extent that Defendants' Motion seeks a finding of qualified immunity from these claims, the Motion is DENIED WITHOUT PREJUDICE.
Under Hawai'i law, a plaintiff in a medical malpractice case must establish that: the defendant owed a duty to the plaintiff; the defendant breached that duty; and there is a causal relationship between the defendant's breach and the plaintiff's injury. See Bernard v. Char, 79 Haw. 371, 377, 903 P.2d 676, 682 (Ct. App.1995). Hawai'i courts generally require expert medical testimony to establish negligent treatment because "`lay jurors are ill prepared to evaluate complicated technical data for the purpose of determining whether professional conduct conformed to a reasonable standard of care and whether there is a causal relationship between the violation of a duty and an injury to the patient.'" Id. (citations omitted). Further, the expert cannot merely testify that he would have treated the patient in a particular manner; the expert must testify "that the defendant's treatment
Defendants do not contest that they owed Plaintiff a duty of care. Defendants contend that the care that they provided was proper and, therefore, there was no violation of the standard of care. Plaintiff's expert, Dr. Hariton, testified that Plaintiff received "grossly inadequate" prenatal care at OCCC, particularly in light of the fact that Plaintiff's pregnancy was high-risk because of her history of drug use and bleeding episodes. [Pltf.'s CSOF, Exh. 14, Hariton Depo., at 24.] He further testified that, had Plaintiff received the ultrasound and ob/gyn consultation, which Defendants Yasunaga and Zienkiewicz ordered on July 2, 2007, in a timely manner, Plaintiff's bleeding episodes would have been addressed immediately when it happened and "they would have got a live child." [Id. at 32.] Similarly, he opined that, had the medical unit responded to Plaintiff's complaints of vaginal bleeding and had her evaluated "even as late as 7/25, the pregnancy was still salvageable with a live child." [Id. at 24.] Defendants responded with their own expert witness, Greigh Hirata, M.D., who testified regarding other potential causes of the fetal death, such as the fact that the pregnancy was the result of an incestuous conception. [Gavigan Reply Decl., Exh. U, Excerpts of 10/12/09 Depo. of Greigh I. Hirata, at 128, 130.] Further, Defendants emphasize that Dr. Hariton admitted that he cannot prove the cause of the fetus' death and that many times the cause of a still birth cannot be determined. [Defs.' CSOF, Exh. K, Hariton Depo., at 54, 80.]
First, insofar as Plaintiff has not established that Defendant Zienkiewicz had any supervisory liability for the decision not to treat Plaintiff's vaginal bleeding or the decision not to enforce the segregation health evaluation policy and procedure as to the women's lock-down, Defendants' Motion is GRANTED as to the negligence claims based on those allegations. Viewing the evidence in the light most favorable to Plaintiff, this Court finds that there are genuine issues of material fact as to whether all of the remaining conduct at issue in this case breached the standard of care and there are genuine issues of material fact as to causation.
Defendants, however, argue that they are entitled to qualified immunity as to Plaintiff's negligence claims. "Hawaii law provides that a nonjudicial government official has a qualified or conditional privilege with respect to his or her tortious actions taken in the performance of his or her public duty." Ogden ex rel. Estate of Ogden v. County of Maui, 554 F.Supp.2d 1141, 1153 (D.Hawai'i 2008) (citing Towse v. State of Hawaii, 64 Haw. 624, 631, 647 P.2d 696, 702 (1982)) (quotation marks and some citations omitted). In order to maintain her negligence claim, Plaintiff "`must allege and demonstrate by clear and convincing proof that [Defendants were] stirred by malice and not by an otherwise proper purpose.'" See id. (quoting Towse, 64 Haw. at 631-33, 647 P.2d at 702-03).
Viewing evidence in the light most favorable to Plaintiff, Defendants Melchor, Bhalang, and Bradley's repeated disregard of
As to Defendants Yasunaga, Zienkiewicz, and Bauman, even if they violated the standard of care in failing to ensure that Plaintiff received the testing and consultation as ordered, there is no evidence that would support a finding that they acted with malice. Defendants' Motion is therefore GRANTED as to Plaintiff's negligence claims against Defendants Yasunaga, Zienkiewicz, and Bauman relating to failure to follow up on the prenatal care ordered on July 2, 2007.
Under Hawai'i law, a plaintiff can prevail on a claim of intentional infliction of emotional distress if four elements are established. First, the plaintiff must prove that the conduct was either intentional or reckless. Second, the conduct in question must have been "outrageous." Next, the plaintiff must establish causation, and finally, there must be evidence that the plaintiff suffered extreme emotional distress. See Young v. Allstate Ins. Co., 119 Haw. 403, 425, 198 P.3d 666, 688 (2008).
First, insofar as Plaintiff has not established that Defendant Zienkiewicz had any supervisory liability for the decision not to treat Plaintiff's vaginal bleeding or the decision not to enforce the segregation health evaluation policy and procedure as to the women's lock-down, Defendants' Motion is GRANTED as to the IIED claims based on those allegations. Viewing the evidence in the light most favorable to Plaintiff, there is sufficient evidence for purposes of this Motion that the remaining actions and omissions at issue in this case were either intentional or reckless and there is sufficient evidence of causation for purposes of this Motion. Defendants primarily argue that the alleged conduct at issue in this case does not rise to the level of "outrageous" conduct and that Plaintiff has not suffered extreme emotional distress.
A determination of "outrageous" conduct is fact specific. Hawai'i courts have defined outrageous conduct as conduct "`without just cause or excuse and beyond all bounds of decency.'" Chin v. Carpenter-Asui, No. 28654, 123 Haw. 299, 2010 WL 2543613, at *4 (Hawai'i.Ct.App. June 24, 2010) (quoting Lee v. Aiu, 85 Haw. 19, 34 n. 12, 936 P.2d 655, 670 n. 12 (1997) (some citations omitted)). If a plaintiff fails to prove that the alleged conduct rose to the level of "outrageous," summary judgment is proper. See Farmer ex rel. Keomalu v. Hickam Fed. Credit Union, No. 27868, 122 Haw. 201, 2010 WL 466007, at *14 (Hawai'i.Ct.App. Feb. 2, 2010) (citing Shoppe v. Gucci America Inc., 94 Haw. 368, 387, 14 P.3d 1049, 1068 (2000)). For the reasons stated supra, this Court finds that there are genuine issues of material fact whether the
Defendants argue that Plaintiff has not established that she suffered extreme emotional distress because she does not have a disabling physical or mental condition and she did not seek medical care for her emotional distress. Defendants, however, have not identified any case law establishing that this is required to sustain an IIED claim. The Hawai'i Supreme Court has stated that:
Hac v. Univ. of Hawaii, 102 Haw. 92, 106, 73 P.3d 46, 60 (2003) (some alterations in original) (citations and quotation marks omitted).
Plaintiff suffered the "[d]eath of [her] daughter" and her mental injuries include sadness and depression. [Defs.' CSOF, Exh. H, Pltf.'s Answers to Interrogs., No. 6.] The Court finds that this is clearly sufficient to establish extreme emotional distress to survive summary judgment. Defendants' Motion is therefore DENIED as to Plaintiff's IIED claims against Defendants Melchor, Bhalang, Bradley, Wakabayashi, and Marks, and as to Defendant Bauman based on her alleged responsibility for the decision not to treat Plaintiff's vaginal bleeding and the decision not to enforce the segregation health evaluation policy and procedure as to the women's lock-down cells.
Punitive damages are not an independent cause of action but instead a remedy which is "incidental to a separate cause of action[.]" United States ex rel. Lockyer v. Hawaii Pac. Health, 490 F.Supp.2d 1062, 1089 (D.Hawai'i 2007) (citing Ross v. Stouffer Hotel Co., 76 Haw. 454, 466, 879 P.2d 1037, 1049 (Haw.1994)). Plaintiff does not contest this fact. [Mem. in Opp. at 28.] Punitive damages, however, may be available to Plaintiff on her § 1983 claims and her state law claims. See Dang v. Cross, 422 F.3d 800, 807 (9th Cir.2005) ("[i]t is well-established that a jury may award punitive damages under section 1983 either when a defendant's conduct was driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others" (citations and quotation marks omitted) (alteration in original)); Ass'n of Apartment Owners of Newtown Meadows v. Venture 15, Inc., 115 Haw. 232, 297, 167 P.3d 225, 290 (2007) ("In order to recover punitive damages, [t]he plaintiff must prove by clear and convincing evidence that the defendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, or where there has been some wilful misconduct
In light of this Court's rulings on Plaintiff's claims, Defendants' Motion is GRANTED as to Plaintiff's request for punitive damages in connection with the claims against Defendants Yasunaga, Zienkiewicz, and Bauman based on their failure to follow up on the outside care ordered after the July 2, 2007 examination, and the claims against Defendant Zienkiewicz alleging supervisory liability for the decision not to treat Plaintiff's vaginal bleeding and the decision not to enforce the segregation health evaluation policy and procedure as to the women's lock-down cells. Defendants' Motion is DENIED as to Plaintiff's request for punitive damages in connection with the remaining claims.
On the basis of the foregoing, Defendants' Motion for Summary Judgment, filed August 5, 2010, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to: 1) Plaintiff's § 1983 claim against Defendants Yasunaga, Zienkiewicz, and Bauman based on their failure to follow up on the outside care ordered after the July 2, 2007 examination; 2) Plaintiff's negligence claim against Defendants Yasunaga, Zienkiewicz, and Bauman based on the same conduct because they have qualified immunity; 3) Plaintiff's IIED claim against Defendants Yasunaga, Zienkiewicz, and Bauman based on the same conduct; 4) Plaintiff's request for punitive damages against Defendants Yasunaga, Zienkiewicz, and Bauman based on the same conduct; and 5) all claims, and the request for punitive damages, against Defendant Zienkiewicz alleging supervisory liability for the decision not to treat Plaintiff's vaginal bleeding and the decision not to enforce the segregation health evaluation policy and procedure as to the women's lock-down. The Motion is DENIED in all other respects.
IT IS SO ORDERED.
Before the Court is Defendants Leroy Melchor, Wanna Bhalang, Tomi Bradley, Roberta Marks, Kay Bauman, M.D., and Keith Wakabayashi's (collectively "Defendants") Motion for Stay of Action Pending Appeal ("Motion"), filed on December 16, 2010. Plaintiff Leah Castro, individually and as Personal Representative of the Estate of Briandalynne Castro, deceased minor ("Plaintiff"), filed her memorandum in opposition on December 22, 2010. This matter came on for hearing on December 29, 2010. Appearing on behalf of Defendants were Marie Gavigan, Esq., and Richard Lewallen, Esq., and appearing on behalf of Plaintiff was Suanna Vo Hansen, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants' Motion is HEREBY GRANTED for the reasons set forth below.
The parties and the Court are familiar with the factual and procedural background of this case. The Court will therefore only discuss the background that is relevant to the instant Motion.
On November 15, 2010, this Court issued its Order Granting in Part and Denying
On December 14, 2010, Defendant Bauman filed a Notice of Appeal from the Summary Judgment Order. Defendant Bauman seeks review of this Court's denial of qualified immunity.
In the instant Motion, Defendants argue that Defendant Bauman's appeal has divested this Court of jurisdiction over the claims against her. Defendants argue that the Court should also stay the trial as to Defendants Melchor, Bhalang, Bradley, Marks, and Wakabayashi ("the Remaining Defendants") to prevent irreparable harm to them. Defendants contend that Defendants Marks and Wakabayashi and Defendant Bauman "share common material issues" and that, although Defendant Bauman's appeal is not directly related to the claims against Defendants Melchor, Bhalang, and Bradley, those three also "share common material issues" with Defendants Marks and Wakabayashi. [Motion at 3.] Thus, Defendants argue that the issues in this case are so intertwined that forcing the Remaining Defendants to go to trial during the pendency of Defendant Bauman's appeal would prejudice them. Defendants also argue that allowing the case to proceed would waste judicial resources because, if Defendant Bauman loses her appeal, she will be forced to stand trial, which would require re-litigating many of the issues that would be addressed during the first trial.
In her memorandum in opposition, Plaintiff first argues that the Ninth Circuit lacks jurisdiction over Defendant Bauman's appeal because the denial of qualified immunity was based on disputed issues of fact, not questions of law. Plaintiff, however, acknowledges that the Ninth Circuit can determine if the denial of qualified immunity was proper by assuming that, as the party opposing summary judgment, her version of events is correct. Thus, she apparently argues that this Court should certify Defendant Bauman's appeal as frivolous and deny a stay as to all Defendants.
Even if the Ninth Circuit does have jurisdiction over Defendant Bauman's appeal, Plaintiff argues that the trial should continue as to the Remaining Defendants because staying the entire case would further
The Ninth Circuit has stated that:
Wilkinson v. Torres, 610 F.3d 546, 549-50 (9th Cir.2010) (some citations omitted).
Unless this Court certifies in writing that Defendant Bauman's claim of qualified immunity is frivolous or has been waived, the filing of her appeal divests the Court of jurisdiction to proceed with the trial against her until the resolution of the appeal. See Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.1992).
Dagdagan v. City of Vallejo, 682 F.Supp.2d 1100, 1116 (E.D.Cal.2010).
The Court stands by its ruling in the Summary Judgment Order that Defendant Bauman is not entitled to qualified immunity for the four claims identified supra. This Court also believes that the determination of whether Defendant Bauman is entitled to qualified immunity depends on disputed questions of fact. This Court, however, cannot find that Defendant Bauman's claim of qualified immunity is frivolous. Nor can the Court find that Defendant Bauman waived her claim of qualified immunity. Defendant Bauman's pending appeal therefore deprives this Court of jurisdiction "`over the particular issues involved in [the] appeal.'" See id. at 1115 (quoting City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir.2001)) (alteration in original) (emphasis omitted). Defendants' Motion is GRANTED as to the trial against Defendant Bauman.
Plaintiff contends that the case should proceed as to the Remaining Defendants. Defendants seek a stay as to all Defendants because the issues in the claims against the Remaining Defendants are so intertwined with the issues in the claims against Defendant Bauman that forcing them to go to trial during the pendency of Defendant Bauman's appeal would be prejudicial and a waste of judicial resources.
In spite of Defendant Bauman's appeal, this Court still has "jurisdiction over `aspects of the case that are not the subject of the appeal.'" See id. (quoting United States v. Pitner, 307 F.3d 1178, 1183 n. 5 (9th Cir.2002) (some citations omitted)). Defendant Bauman is the only Defendant who has filed a Notice of Appeal to the Ninth Circuit. Thus, none of the other Defendants have claims that are the subject of a pending appeal. This Court therefore has jurisdiction over the claims against the other Defendants and may proceed with the trial on the remaining claims.
Proceeding with the trial on the remaining claims would essentially require this Court to bifurcate Plaintiff's claims against Defendant Bauman from Plaintiff's claims against the Remaining Defendants. Federal Rule of Civil Procedure 42(b) states, in pertinent part, that: "For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims." The decision whether to bifurcate proceedings is within a court's sound discretion. See Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021 (9th Cir.2004).
In determining whether to bifurcate Plaintiff's claims against Defendant Bauman from Plaintiff's claims against the Remaining Defendants, this Court is persuaded by the district court's analysis in Daviscourt v. Anderson. See Civil Action No. 05-cv-00687-WYD-KLM, 2008 WL 4080006 (D.Colo. Sept. 3, 2008). In denying a stay to the defendants who were not parties to a pending appeal of the denial of qualified immunity, the district court relied upon the following factors: "(1) whether the appeal is likely to be successful; (2) the threat of irreparable harm to the moving parties if the stay is denied; (3) the harm, if any, to the plaintiffs or other opposing parties; and (4) the harm, if any, to the public interest." Id. at *1 (citing Archuleta v. Wagner, No. 06-cv-02061-LTB-MJW, 2007 WL 1247085, at *1 (D.Colo. Apr. 30, 2007) (unpublished decision) (citing FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003))). The District of Hawai'i has considered these factors in other contexts, such motions to stay a final order pending appeal of the judgment. See, e.g., United States v. Bright, CV 07-00311 ACK-KSC, 2008 WL 351215, at *1 (D.Hawai'i Feb. 7, 2008) (citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987); Natural Resources Defense Council, Inc. v. Winter, 502 F.3d 859, 863 (9th Cir.2007) (some citations omitted)). This Court finds these factors to be relevant and applicable to the instant Motion.
The first factor, whether the appeal is likely to be successful, is neutral. As noted supra, this Court stands by its ruling that Defendant Bauman is not entitled to qualified immunity for the four claims listed above, but this Court cannot find that her appeal is frivolous.
The second factor, the threat of irreparable harm to Defendants if the stay is
The greater concern, however, is the impact that the stay of Defendant Bauman's trial will have on the testimony if a trial against the Remaining Defendants goes forward. "Because qualified immunity is an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (citations and quotation marks omitted). While Defendant Bauman may be required to give testimony regarding the claims against the Remaining Defendants, this Court cannot allow her testimony, or the testimony of other witnesses, to become the effective equivalent of a trial of the claims against Defendant Bauman. In Cabral v. County of Glenn, the district court stayed the claims against Officer Jason Dahl in light of his appeal of the denial of qualified immunity, but allowed the case to proceed as to the other defendants who were not a part of the appeal. See No. 2:08-cv-00029-MCE-DAD, 2009 WL 1911692, at *2 (E.D.Cal. July 1, 2009). The district court ordered that Officer Dahl could be deposed during the pendency of the appeal, but neither he nor any other witnesses could testify regarding issues that related solely to the claims against Officer Dahl or his defense of qualified immunity. See id.
In this Court's view, the trial testimony in this case cannot be readily divided between testimony relating solely to the claims against Defendant Bauman and testimony relating solely to the claims against the Remaining Defendants. For example, in attempting to establish the reasonableness of the Segregation Policy Decision and their supervision of Defendants Melchor, Bhalang, and Bradley, Defendants Marks and Wakabayashi may offer testimony regarding Defendant Bauman's participation in the Segregation Policy Decision and the supervision of the nurses. If Defendants Marks and Wakabayashi are prevented from presenting such evidence, it could irreparably harm their defense. If they are allowed to present such evidence, Defendant Bauman may be forced to address or otherwise respond to the evidence. This would violate the stay of the claims against Defendant Bauman and, if the Ninth Circuit rules in her favor in her appeal, it would invade upon her immunity from the burden of standing trial.
This Court therefore finds that there will be irreparable harm to Defendants if the Court denies the Motion and that this factor weighs in favor of a stay.
The third factor, prejudice to Plaintiff if the Court grants Defendants' Motion, weighs against a stay. Plaintiff filed this action in November 2007, and the underlying events occurred in the summer of 2007. Plaintiff argues that she will suffer prejudice if the entire case is stayed because a complete stay would further delay the resolution of her claims and would delay any recovery that she may be entitled to. Plaintiff also notes that, as more time passes before trial, key witnesses may become unavailable. For example, OCCC guard Hattie Reis, who Plaintiff argues is a critical witness, has relocated to the mainland, and intended witnesses who are
The Court also recognizes that Plaintiff has spent a substantial amount of time and resources preparing for the January 11, 2011 trial date. Defendants filed the instant Motion on December 16, 2010, less than a month before trial and, even on an expedited basis, the Court could not hear the Motion until less than two weeks before trial. The hearing occurred after many near-trial deadlines had passed and the parties had to continue to prepare for the January 11 trial date until the Court issued its ruling on the Motion.
The Court therefore finds that Plaintiff will suffer prejudice if the Court grants a stay and that this factor weighs against a stay.
The final factor, harm to the public interest, is neutral. The public has an interest in seeing litigation resolved in a timely fashion, which weighs against a stay. The public, however, also has an interest in efficient and economical trials. Denying the stay and allowing Plaintiff to proceed to trial against the Remaining Defendants may result in two separate trials, which would be more expensive and less efficient. This weighs in favor of a stay. In light of the public's competing interests, the harm to the public interest is a neutral factor.
Having considered all of the relevant factors, the Court recognizes that this is a close issue because Defendants will be prejudiced if the Court denies the stay and Plaintiff will be prejudiced if the Court grants the stay. On balance, however, the Court finds that a stay is necessary to ensure a full and fair trial of all claims. This Court finds that it cannot fully and fairly try the claims against the Remaining Defendants without intruding upon the claims against Defendant Bauman, which have been stayed pending appeal. Further, testimony during the trial of the claims against the Remaining Defendants may relate to the stayed claims against Defendant Bauman, and this would be prejudicial to here. The Court therefore GRANTS the Motion, and stays the trial against Defendants Melchor, Bhalang, Bradley, Marks, and Wakabayashi.
On the basis of the foregoing, Motion for Stay of Action Pending Appeal, filed December 16, 2010, is HEREBY GRANTED.
IT IS SO ORDERED.
The Court takes judicial notice of Exhibits 4, 5, and 6 because the policies are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." See Fed.R.Evid. 201(b)(2). Further, they are arguably admissible under the exception to the hearsay rule for public records and reports. See Fed.R.Evid. 803(8)(A). The Court rules that Exhibits 1 and 3 are inadmissible for purposes of this Motion. See Fed.R.Evid. 802.
