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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARGARET WARD, et al.,

Plaintiffs,

v.

THE COUNTY OF MENDOCINO, et al.,

Defendants.

Case No. 17-cv-0911-PJH 

ORDER GRANTING MOTION TO 

DISMISS

The motion of defendant Marvin Trotter, M.D., to dismiss the claim of deliberate 

indifference to serious medical needs asserted against him in the second amended 

complaint (“SAC”) came on for hearing before this court on October 25, 2017. Plaintiffs 

appeared by their counsel Nathaniel M. Leeds, and Dr. Trotter appeared by his counsel 

Chad C. Couchot. Having read the parties’ papers and carefully considered their 

arguments and the relevant legal authority, the court hereby GRANTS the motion as 

follows.

BACKGROUND

This case is brought under 42 U.S.C. § 1983 by the survivors of Earl Ward, who 

died while in custody of the County of Mendocino, California. Named as defendants are 

the County of Mendocino; Thomas Allman, the Sheriff of Mendocino County, and two 

Sheriff's Deputies – Michael Grant and Lorrie Knapp; California Forensic Medical Group, 

Inc. ("CFMC" – a company that provides and manages medical services in jails, including 

the Mendocino County Jail); and two physicians – Dr. Michael Medvin and Dr. Trotter. 

Plaintiffs allege that Mr. Ward, a 77-year-old man suffering from dementia, “which 
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made him prone to confusion and uncontrollable rages," was arrested on March 20, 

2016, following a call by his wife to the Sheriff of Mendocino County. SAC ¶ 1. He was 

held in custody at the Mendocino County Jail, where he exhibited signs of confusion and 

disorientation. SAC ¶¶ 1, 24-31. 

Plaintiffs allege that the Mendocino County Jail does not have its own medical 

staff, or any advanced medical diagnostic or treatment facilities. SAC ¶ 13. Instead, the 

County has a contract with defendant CFMG, which provides that CFMG will supply a 

physician to be at the jail 8 hours in every 7-day period, and will identify a "responsible 

physician" who is on call the remainder of the time; that CFMG will supply a "Health 

Service Administrator/RN" to be at the jail 40 hours a week (not including any time on 

weekends); that CFMG will supply a "Psych/RN/LCSW/MFT" to be at the jail 40 hours a 

week (with no provision for weekends); and that CFMG will provide a psychiatrist via 

telepsychiatry "up to 8 hours a week." SAC ¶ 13.

On Saturday, April 2, 2016, Deputy Knapp allegedly observed Mr. Ward standing 

on his bunk, and then falling backwards, "possibly hitting his head." SAC ¶ 32. Early in 

the morning of Sunday, April 3, 2016, Mr. Ward was "observed to have a bruise on his 

head with dried blood,” and was taken to the Ukiah Valley Medical Center ("UVMC") at 

3:40 a.m. SAC ¶ 35. Upon arriving at UVMC at 4:14 a.m., Mr. Ward was seen in the 

emergency department (“ER”) by Dr. Brandon Begley, who "believed that Mr. Ward was 

suffering from acute delirium" and recommended that he be admitted to the hospital. 

SAC ¶ 41. Dr. Begley allegedly consulted with Dr. Devies Leslee, a "hospital-based 

physician affiliated with UVMC," who agreed to admit Mr. Ward at approximately 5:30 

a.m. on April 3, 2016. SAC ¶ 42. 

Plaintiffs assert that by agreeing to admit Mr. Ward as a patient, the "UVMC 

hospitalist group," of which Dr. Trotter and Dr. Leslee were both members, "voluntarily 

and knowingly agreed to provide Mr. Ward with medical services that were not available 

to him at the Mendocino County Jail, with full knowledge that Mr. Ward was an inmate at 

the jail." SAC ¶ 43.
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Plaintiffs assert that Dr. Leslee noted that Mr. Ward was asleep during the 

examination (and that according to the deputies, he had not been sleeping at the jail), 

and that when he did wake up, he was not oriented to person, place or time. SAC ¶ 44. 

Hospital nursing staff allegedly assessed Mr. Ward as a "high fall risk." SAC ¶ 45. Blood 

tests revealed elevated BUN (which plaintiffs allege is a sign of dehydration and kidney 

failure). SAC ¶ 46. 

However, plaintiffs assert, no one at UVMC diagnosed the cause of the elevated 

BUN level, and no psychiatrist evaluated him with a view towards medical management 

of his dementia. SAC ¶ 47. They also claim that no assessment was made of the risk 

that Mr. Ward would continue to decline if sent back to the Mendocino County Jail, or 

what measures should be taken after his discharge to ensure his future safety or to 

determine his future medical needs. SAC ¶ 47. 

Plaintiffs allege that Dr. Trotter and Jennifer L. Graff, a nurse practitioner, “jointly” 

made the decision to discharge Mr. Ward back to the Mendocino County Jail. SAC ¶ 48. 

Ms. Graff allegedly prepared the discharge summary, which noted that "[p]atient does 

have dementia, recently residing in the jail, likely had an acute episode of delirium, 

probably due to lack of sleep, as it is reported that he had not slept for a week and a half 

prior to presenting to the emergency room." SAC ¶ 48. Plaintiffs assert that Dr. Trotter 

subsequently reviewed and signed off on the discharge summary prepared by Ms. Graff, 

although he did not see, meet with, or personally evaluate Mr. Ward at any point. See

SAC ¶¶ 48-49.

Plaintiffs contend that "through Ms. Graff," Dr. Trotter "was aware that Mr. Ward 

had a heightened risk of future falls, had suffered a marked decline in cognitive function 

since being admitted to the Mendocino County Jail, that the cause of the decline had not 

been assessed by the appropriate health care providers, that the medical management of 

Mr. Ward's dementia and delirium had not been evaluated in light of this decline, and that 

Mr. Ward's position put him at risk of serious bodily injury." SAC ¶ 50. 

Plaintiffs allege that notwithstanding the fact that he had this knowledge, Dr. 
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Trotter failed to independently evaluate Mr. Ward, or question Mendocino County Jail 

staff about what safety precautions were available at the jail, or participate in the 

coordination of Mr. Ward's care with jail staff so that appropriate safety measures could 

be put in place. SAC ¶ 51. 

Plaintiffs allege that Dr. Trotter's "complete delegation" to Ms. Graff of his 

"responsibilities to ensure that the discharge of Mr. Ward to the Mendocino County Jail 

was medically appropriate" constituted deliberate indifference to the risk that Mr. Ward 

would at some point suffer further cognitive decline and physical injury, as well as 

indifference to Mr. Ward's need for further, ongoing, medical care for his dementia. SAC 

¶ 52. Finally, plaintiffs contend Dr. Trotter acted under color of state law. SAC ¶ 64.

On April 16, 2016, 13 days after his discharge from UVMC, Mr. Ward was

discovered lying on the floor of his cell at the Mendocino County Jail and was taken in for 

further medical evaluation, which revealed that he had multiple vertebral fractures and 

broken ribs, internal bleeding, a partially collapsed lung, and acute kidney failure. SAC ¶ 

60. Mr. Ward's orthopedic injuries required surgery, which plaintiffs claim led to 

complications, and ultimately, to his death six weeks later on May 30, 2016. SAC ¶ 61.

Plaintiffs filed this action on February 23, 2017, and filed a first amended complaint 

(“FAC”) on March 23, 2017, alleging four causes of action – a "personal capacity" 

Fourteenth Amendment claim of deprivation of life without due process of law, deliberate 

indifference to serious medical needs, and denial of medical care, which also includes a 

claim of violation of the right to be free from wrongful government interference with 

familial relationships, and right to companionship, society, and support (against Sheriff 

Allman, Deputies Grant and Knapp, CFMG, Dr. Medvin, and Dr. Trotter); a "supervisory 

liability" Fourteenth Amendment claim (against Sheriff Allman); and state law claims for 

elder abuse (against the County, Sheriff Allman, Deputies Grant and Knapp, and CFMG), 

and medical negligence and wrongful death (against CFMG, Dr. Medvin, and Dr. Trotter). 

On July 14, 2017, the court issued an order granting Dr. Trotter’s motion to 

dismiss the Fourteenth Amendment claim of deliberate indifference to serious medical 
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needs. The court found that the FAC did not allege facts sufficient to show that Dr. 

Trotter acted with deliberate indifference in his provision of medical treatment when Mr. 

Ward was brought into the hospital on April 3, 2016; and that there were no facts pled 

showing that any action by Dr. Trotter did was the cause of Mr. Ward's fall thirteen days 

later, which allegedly caused the injuries that resulted in his death following surgery. 

The court also found that the FAC did not allege facts sufficient to create a 

plausible inference that Dr. Trotter acted under color of state law. The court noted the 

absence of any allegation that Dr. Trotter or UVMC had a contract with the County, or 

that Dr. Trotter owed a duty towards Mr. Ward apart from the duty imposed by the federal 

Emergency Medical Treatment & Active Labor Act (EMTALA), 42 U.S.C. § 1395dd. 

Further, the court found no facts pled showing that Dr. Trotter had any input into 

the decision to return Mr. Ward to the jail, or into the decision to place him in one cell as 

opposed to another cell; and no allegations that Dr. Trotter was involved in the 

administration of the jail; that Dr. Trotter’s provision of emergency medical services 

resulted from the state's exercise of coercive power; that the state provided "significant 

encouragement" for the activity; or that Dr. Trotter operated as a willful participant in joint 

activity with the state.

The court granted leave to amend, to allow plaintiffs to add additional facts they 

had identified in their opposition to Dr. Trotter’s motion, and to plead additional facts to 

correct the deficiencies identified by the court in the order. Plaintiffs filed the second 

amended complaint (“SAC”) on August 14, 2017, alleging the same four causes of action 

against the same defendants – the County, Sheriff Allman, Deputies Grant and Knapp, 

CFMG, Dr. Medvin, and Dr. Trotter. Dr. Trotter now seeks an order dismissing the claim 

of deliberate indifference to serious medical needs, asserted in the SAC. 

DISCUSSION

A. Legal Standard

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims 

alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003). A 
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complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a cognizable 

legal theory, or has not alleged sufficient facts to support a cognizable legal theory. 

Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). While the court is to accept as 

true all the factual allegations in the complaint, legally conclusory statements, not 

supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 

U.S. 662, 678-79 (2009); see also In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 

(9th Cir. 2008). 

The complaint must proffer sufficient facts to state a claim for relief that is plausible 

on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007) (citations and 

quotations omitted). A claim has facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). Where dismissal is 

warranted, it is generally without prejudice, unless it is clear the complaint cannot be 

saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).

B. Defendant’s Motion

Dr. Trotter argues that plaintiffs fail to allege facts sufficient to show deliberate 

indifference to serious medical needs, or to show that he acted under color of state law in 

treating Mr. Ward.

Section 1983 "provides a cause of action for the 'deprivation of any rights, 

privileges, or immunities secured by the Constitution and laws' of the United States." 

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 

Section 1983 is not itself a source of substantive rights, but merely provides a method for 

vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 

393-94 (1989).

To state a claim under § 1983, a plaintiff must allege that a right secured by the 

Constitution or laws of the United States was violated and that the alleged violation was 

committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 

(1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). The plaintiff 
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must also allege facts showing that “the defendant's conduct was the actionable cause of 

the claimed injury;” that is, the plaintiff must establish both causation-in-fact and 

proximate causation. Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008) (citing 

Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996)).

Under the Eighth and the Fourteenth Amendments, detainees are entitled to 

adequate medical care. Doty v. Cnty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 

Inadequate medical treatment rises to the level of deliberate indifference to serious 

medical needs only where a plaintiff can establish (1) that he/she had a serious medical 

need; (2) that defendants were subjectively aware of his serious medical need and 

deliberately failed to respond; and (3) that the harm plaintiff suffered was both the legal 

and proximate cause of defendants' indifference. Conn v. City of Reno, 591 F.3d 1081, 

1095 (9th Cir. 2010).

1. Whether the SAC alleges facts sufficient to show deliberate indifference

Dr. Trotter argues that the SAC fails to state sufficient facts to show deliberate 

indifference to serious medical needs. He argues that there are no facts showing that he 

had the requisite culpability; that there are no plausible facts showing that Mr. Ward 

suffered an injury caused by Dr. Trotter's deliberate indifference; and that a supervisor 

cannot be found vicariously liable for a violation of constitutional rights.

First, Dr. Trotter contends that there are no facts showing that he had the requisite 

culpability. Deliberate indifference is established only where the defendant subjectively 

“knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. 

Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal citation omitted). This is a two-step 

process. First, the inmate must show a “serious medical need” by demonstrating that 

failure to treat his/her condition could result in further significant injury of the 

“unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F. 3d 1091, 1096 (9th 

Cir. 2006). Second, the inmate must show that the defendant’s response to the need 

was “deliberately indifferent,” by alleging facts demonstrating both a purposeful act or 

failure to respond to the inmate’s pain or possible medical need, and harm caused by the 
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indifference. “Prison officials are deliberately indifferent to a prisoner's serious medical 

needs when they deny, delay, or intentionally interfere with medical treatment.” Hallett v. 

Morgan, 296 F.3d 732, 744 (9th Cir. 2002).

Dr. Trotter argues that plaintiffs have not plausibly alleged that Mr. Ward had a 

serious medical need when he was brought into UVMC on April 3, 2016. He notes that 

when Mr. Ward was brought in, medical personnel ordered some blood tests, and he was 

treated and discharged the same day. The discharge note written by Ms. Graff stated 

that Mr. Ward had dementia, and that he "likely had an acute episode of delirium, 

possibly due to lack of sleep," and that he had been "on his bunk" when he "dozed off 

and fell." SAC ¶ 48. Dr. Trotter takes issue with plaintiffs’ suggestion that because Mr. 

Ward had fallen on April 2, and because he had dementia, he was at high risk of falling 

again. See SAC ¶ 54. Dr. Trotter argues that having dementia and having previously 

fallen are not evidence of "serious medical need." 

Dr. Trotter contends that even if having dementia and having previously fallen 

could be construed as "serious medical need," the SAC does not plead plausible facts 

showing that he was deliberately indifferent to such medical need. Plaintiffs allege that 

Dr. Trotter did not meet with or evaluate Mr. Ward, and that he did not meet or consult 

with Mendocino County Jail staff. SAC ¶¶ 49, 51. They also assert that in signing the 

discharge summary written by Ms. Graff, Dr. Trotter made a joint decision with Ms. Graff 

to discharge Mr. Ward from the hospital, SAC ¶ 48; and alternatively, that Dr. Trotter 

"delegated" his responsibility regarding the discharge of Mr. Ward to Ms. Graff, SAC ¶ 52.

Dr. Trotter argues that there are no facts sufficient to create a plausible inference 

that his limited role in Mr. Ward's treatment (signing the discharge summary) was done in 

conscious disregard of an excessive risk to Mr. Ward. He contends that absent any facts 

showing a serious medical need, or the requisite culpability for deliberate indifference, 

plaintiffs' claims against him should be properly characterized as claims of medical 

malpractice. He argues that mere negligence cannot create a constitutional right. 

Second, Dr. Trotter argues that there are no plausible facts showing that any 
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deliberate indifference on his part caused Mr. Ward to suffer any injury. Dr. Trotter notes 

that in order to be liable under 42 U.S.C. § 1983, a defendant must cause the deprivation 

of one or more of the plaintiff's constitutional rights. Dr. Trotter asserts that there are no 

facts pled showing that the act of signing off on the discharge summary on April 3, 2016 

was the proximate cause of Mr. Ward's fall on April 16, 2016, or his death on May 30, 

2016. 

Plaintiffs allege that Dr. Trotter's alleged deliberate indifference caused the 

deprivation of medical care for Mr. Ward, and the fall in his jail cell that eventually led to 

his death. See SAC ¶¶ 53-55. However, Dr. Trotter asserts, there are no facts alleged 

showing that he played any role in the decision to place Mr. Ward back in his cell at the 

jail, any role in the decision to place him in an "unsupervised cell," or any role in the 

decisions made with regard to his confinement at the jail or the conditions of that 

confinement. 

Moreover, Dr. Trotter argues, allegations in the SAC show that Mr. Ward had 

access to medical care during the 13-day interval between his discharge from UVMC and 

the April 16, 2016, fall that resulted in the injuries that eventually led to his death on May 

30, 2016. Dr. Trotter refers to the contract between CFMG and the County of 

Mendocino, and asserts that there were numerous opportunities for Mr. Ward to be seen 

and treated by healthcare providers at the jail during the 13 days between his release 

from UVMC and the fall that ultimately led to his death – which he argues breaks the 

chain of causation. 

Third, Dr. Trotter asserts, a supervisor cannot be held vicariously liable for a 

violation of constitutional rights, but may be liable only if he/she was personally involved 

in the constitutional deprivation, or if there is a sufficient causal nexus between the 

supervisor's alleged wrongful conduct and the constitutional deprivation. Here, Dr. 

Trotter asserts, as alleged in the SAC, he did not personally see, evaluate, or treat Mr. 

Ward. He contends that plaintiffs' generalized allegations of UVMC's treatment of 

inmates and his limited role in Mr. Ward's care (signing the discharge summary that had 
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been prepared by Ms. Graff) fail to show that he (Dr. Trotter) was personally involved in 

any violations of Mr. Ward's or plaintiffs' constitutional rights. 

In opposition, plaintiffs contend that the facts alleged in the SAC support the 

conclusion that Dr. Trotter was deliberately indifferent to Mr. Ward's medical needs when 

he discharged him back to "the same jail cell" in which he had previously injured himself. 

As an initial matter, they contend that Mr. Ward's medical needs were "serious" to the 

doctors who admitted him to the hospital, because failure to respond to those needs 

"could have" resulted in further injury. 

Plaintiffs argue that Mr. Ward's condition and conduct were of serious medical 

concern. They contend that he was showing signs of serious cognitive decline in 

response to being held in custody – he had allegedly not slept in a week, and he was not 

oriented to place or time, and he was showing signs he was dehydrated. They also note 

that Mr. Ward had fallen once, and claim that his condition during the ER visit offered no 

reason to conclude he would not be a fall-risk in the future. 

Second, plaintiffs argue that the SAC adequately alleges that Dr. Trotter was 

deliberately indifferent to Mr. Ward's fall risk and declining mental health. They contend 

that deliberate indifference can be established by alleging that the official has acted or 

failed to act despite his/her knowledge of a substantial risk of serious harm. They claim 

that because Mr. Ward had already suffered one fall, and because (as jail personnel 

reported) he was not sleeping, and because the lab reports indicated that he was 

dehydrated, and because the discharge summary that Dr. Trotter signed indicated that 

Mr. Ward was suffering from dementia, there was an obvious risk that Mr. Ward would 

suffer serious future harm, such that Dr. Trotter must have been consciously aware of 

that risk.

 Third, plaintiffs assert that they do not need to plead facts showing that Dr. 

Trotter's deliberate indifference resulted in Mr. Ward's death, only that it "harmed" him. 

They appear to have abandoned their previous effort to argue that there was a causal 

connection between Dr. Trotter signing off on the discharge summary prepared by Ms. 
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Graff, and Mr. Ward’s fall 13 days later, and his death a month and a half after the fall 

(following surgery). In a new theory, loosely based on allegations in the SAC that Mr. 

Ward “continued to suffer the pain . . . of being deprived [of] appropriate medical care for 

his dementia and delirium, causing [him] disorientation, fear, and confusion . . . ,” SAC 

¶ 53(b), plaintiffs now argue that rather than looking at the fact of the 13-day interval 

between the time Mr. Ward was discharged and the time he fell in his cell on April 16, 

2016, the court should focus on the harm Mr. Ward allegedly suffered "in the hours and 

days after Dr. Trotter elected to discharge [him] back to jail." 

At the time he was admitted to UVMC, Mr. Ward was described as suffering from 

an "acute episode of delirium." Plaintiffs argue in their opposition that in "lay terms," this 

means "he was going mad." Plaintiffs contend that "[m]adness is emotionally painful for 

the person experiencing it, and the family members who observe it." Plaintiffs assert that 

they cannot affirmatively allege that Mr. Ward's acute delirium could have been controlled 

with proper medication because Dr. Trotter discharged Mr. Ward before the evaluation 

Dr. Begley contemplated was undertaken. But, they argue, it would be "wrong" for the 

court to "fault [p]laintiffs' inability to conjure a cure to Mr. Ward's madness," because so 

holding would allow Dr. Trotter to “benefit from his own indifference." 

The court finds that plaintiffs have not adequately alleged deliberate indifference to 

serious medical needs. As an initial matter, the court assumes for the sake of argument 

that Mr. Ward had a serious medical need on April 3, 2017, based on the allegations that 

he was brought to the ER and was then briefly admitted to the hospital for further 

evaluation, prior to being discharged. 

However, with regard to whether Dr. Trotter was deliberately indifferent to Mr. 

Ward’s serious medical needs, it is undisputed that Dr. Trotter did not see or treat Mr. 

Ward while he was at the hospital, and there are no facts alleged showing that Dr. Trotter 

subjectively knew and disregarded an excessive risk to Mr. Ward's health and safety, or 

that Dr. Trotter purposefully acted or failed to respond to Mr. Ward's pain or possible 

medical need. Moreover, the SAC alleges no facts showing that Mr. Ward was not 
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evaluated or that his alleged episode of delirium and dehydration were not treated before 

he was released from the hospital. 

At most, plaintiffs have alleged that Dr. Trotter was negligent in failing to see 

and/or evaluate Mr. Ward before he signed off on the discharge summary prepared by 

Ms. Graff. An inadvertent or negligent failure to diagnose a medical condition or to 

provide treatment to a prisoner, without more, does not state a constitutional deliberate 

indifference claim. Jett, 439 F.3d at 1096 (citing Estelle v. Gamble, 429 U.S. 97, 105

(1976)); see also Hutchinson v. U.S., 838 F.2d 390, 394 (9th Cir. 1988). Put another 

way, medical malpractice does not become a constitutional violation simply because the 

victim is a prisoner. Estelle, 429 U.S. at 106; see also Jackson v. McIntosh, 90 F.3d 330, 

332 (9th Cir. 1996) (allegations of nothing more than a "difference of medical opinion" as 

to the need to pursue one course of treatment over another is "insufficient . . . to establish 

deliberate indifference”). 

In addition, plaintiffs must allege facts showing that Mr. Ward was harmed 

because of Dr. Trotter’s deliberate indifference. Jett, 439 F.3d at 1096. Liability under 

§ 1983 "arises only upon a showing of personal participation by the defendant." Taylor v. 

List, 880 F.2d 1040, 1045 (9th Cir. 1989). A plaintiff alleging deliberate indifference in 

§ 1983 actions must demonstrate that the defendant's actions were both "an actual and 

proximate cause" of his injuries. See Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 

1062, 1074 (9th Cir. 2013). Here, however, plaintiffs have alleged no facts showing any 

causal connection between any action taken by Dr. Trotter on April 3, 2016, and Mr. 

Ward's fall in his cell on April 16, 2016, or his death six weeks later on May 30, 2016. 

In their opposition, plaintiffs attempt to get around this problem by suggesting that 

Dr. Trotter had some input into the decision as to whether Mr. Ward should be 

incarcerated and/or as to which jail cell he should be placed in. However, Dr. Trotter was 

not in charge of the jail or the Sheriff's Department, and there are no facts pled showing 

that he had any supervisory authority over the County or any ability or responsibility to 

direct the placement of a pretrial detainee in the custody of the County Sheriff. 
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As for the suggestion that the court should simply ignore lack of a causal 

connection between the discharge (or any action taken by Dr. Trotter) on April 3, 2016, 

and the April 16, 2016 fall, and should instead construe the allegations in the SAC as 

asserting that Mr. Ward was suffering from "madness” (as evidenced by his delirium

and/or dementia), and as for plaintiffs’ argument that the act of discharging Mr. Ward 

back into the custody of the Sheriff's Deputies constituted deliberate indifferent to his 

serious medical needs, the court finds that the allegations on which plaintiffs rely are 

conclusory, speculative, and unsupported by facts. 

Specifically, these are the allegations that a result of Dr. Trotter’s asserted 

deliberate indifference was "the pain . . . of being deprived [of] appropriate medical care 

for his dementia and delirium" which caused him "disorientation, fear, and confusion" 

which in turn "constituted emotional pain and suffering[;]" and that the ineffective 

treatment of the “dementia and delirium” was a “non-trivial contributing factor" in the April 

16, 2016 fall and injuries that ultimately resulted in Mr. Ward's death (six weeks later, 

following surgery). SAC ¶ 53(b), (c). 

Moreover, these arguments ignore the fact that Mr. Ward did not fall again after his 

discharge until April 16, 2016, and also ignore the fact that during that 13-day interval, 

there were medical personnel available at the County Jail, pursuant to the contract 

between the County and CFMG. Thus, if Mr. Ward's alleged "madness" worsened, he 

had access to medical care at the jail during that 13-day period, and if said medical care 

for an alleged serious medical condition was denied him, with the result that he fell in his 

cell and seriously injured himself (and ultimately died following surgery for his injuries), it 

was not Dr. Trotter's doing.1 

 

1

 Plaintiffs' argument that Mr. Ward's pre-death pain and suffering is compensable is 

without merit, at least under the facts as alleged. The case plaintiffs cite, Chaudhry v. 

City of L.A., 751 F.3d 1096 (9th Cir. 2014), held that California’s prohibition against 

recovering pain-and-suffering damages, see Cal. Civ. P. Code § 377.34, does not apply 

in connection with a § 1983 claim, where the decedent's death was caused by violation of 

federal law. Id., 751 F.3d at 1105. Here, plaintiffs have not alleged facts sufficient to 

show that Dr. Trotter caused Mr. Ward's death by some violation of federal law.
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Finally, while plaintiffs concede that Dr. Trotter did not meet with or evaluate Mr. 

Ward at any point, see SAC ¶ 49, they have not addressed Dr. Trotter’s argument that he 

did not prepare the discharge summary but was acting as the supervisor of the nurse 

practitioner who prepared it. A person deprives another of a constitutional right within the 

meaning of § 1983 if he does an affirmative act, participates in another’s affirmative act, 

or omits to perform an act which he is legally required to do, which causes the deprivation 

of which the plaintiff complains. Leer v. Murphy, 844 F.3d 628, 633 (9th Cir. 1988).

Supervisory officials “may not be held liable for the unconstitutional conduct of 

their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676; see 

also Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014). “Each Government official, 

his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 

U.S. at 675; see also Lemire, 726 F.3d at 1074-75 (“Vicarious liability may not be 

imposed on a supervisor for the acts of lower officials in a section 1983 action.”). That is, 

supervisory officials “cannot be held liable unless they themselves” violated a 

constitutional right. Iqbal, 556 U.S. at 683. 

A supervisor may be liable only if he/she was personally involved in the 

constitutional deprivation, or if there is a sufficient causal nexus between the supervisor's 

alleged wrongful conduct and the constitutional deprivation. See Crowley v. Bannister, 

734 F.3d 967, 977 (9th Cir. 2013). Under the latter theory, supervisory liability may exist 

without overt personal participation if the supervisory officials implement a policy so 

deficient that the policy itself is a repudiation of constitutional rights and is the moving 

force of a constitutional violation. Id. 

Absent some causal connection between the alleged constitutional violation and 

the supervisor’s own conduct – such as the supervisor’s action or inaction in the training, 

supervision, or control of subordinates; or his/her acquiescence in the alleged 

constitutional deprivation; or conduct showing a reckless or callous indifference to the 

rights of others – supervisors cannot be liable for the constitutional violations of others. 

See Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000), cited in Lemire, 726 
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F.3d at 1075. Here, plaintiffs allege no facts sufficient to show that Dr. Trotter can be 

held liable for the actions of other hospital employees in connection with the discharge of 

Mr. Ward from the hospital.

2. Whether the SAC adequately alleges that Dr. Trotter acted under color of 

state law

In his second main argument, Dr. Trotter asserts that the SAC does not allege 

facts sufficient to show that he acted under color of state law. A person acts under color 

of state law if he "exercise[s] power possessed by virtue of state law and made possible 

only because the wrongdoer is clothed with the authority of state law." West, 487 U.S. at 

49 (citation and quotation marks omitted). Generally, a public employee acts under color 

of state law while acting in his official capacity or while exercising his responsibilities 

pursuant to state law. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997). 

By contrast, a private individual generally does not act under color of state law. 

See Gomez v. Toledo, 446 U.S. 635, 640 (1980). Purely private conduct, no matter how 

wrongful, is not covered under § 1983. Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 

550 (9th Cir. 1974). There is no right to be free from the infliction of constitutional 

deprivations by private individuals. Van Ort, 92 F.3d at 835.

Private conduct is not generally considered governmental action unless 

"something more" is present. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 

826, 835 (9th Cir. 1999). Courts have applied certain tests to identify whether there is 

“something more,” including the public function test, the joint action test, the 

governmental compulsion test, and the governmental nexus test. See Lugar v. 

Edmondson Oil Co., 457 U.S. 922, 939 (1982); see also Kirtley v. Rainey, 326 F.3d 1088, 

1092 (9th Cir. 2003). 

For example, in West, the Supreme Court found that a physician under contract to 

provide healthcare services to inmates in a prison was acting under color of state law, 

although the Court also found that the existence of a contract was not the determinative 

factor; rather, the Court held, it is a physician's function within the state system, not the 
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precise terms of employment, which determine whether the physician's actions can be 

fairly attributed to the state. See id., 487 U.S. at 55-56. The defendant physician was 

found to be a state actor because "[i]n the state's employ, [he] worked as a physician at 

the prison hospital fully vested with state authority to fulfill essential aspects of the duty, 

placed on the State by the Eighth Amendment and state law, to provide essential medical 

care to those the State had incarcerated." Id. at 56-57.

Dr. Trotter contends that there are no facts pled in the SAC supporting the 

conclusion that he acted under color of state law, and asserts that none of the above 

tests supports a finding that he was a state actor. For example, he asserts, there is no 

allegation that he or UVMC had a contract with the County, and no plausible allegation 

that he owed a duty to Mr. Ward apart from his duty to any patient at UVMC. In addition, 

he argues, there are no facts pled showing that he had any input into the decision to 

return Mr. Ward to the jail, or the decision to place him in one cell as opposed to another 

cell. 

In their opposition, plaintiffs contend that the facts pled in the SAC show that Dr. 

Trotter assumed a public function in the providing of medical services to Mr. Ward, and 

was thus a state actor. For example, plaintiffs allege that UVMC is 1.2 miles from the 

Mendocino County Jail, and is the only trauma center near the jail, and that the next 

closest is Lakeside Hospital, which is a private hospital approximately 30 miles from the 

jail. SAC ¶ 37. Plaintiffs assert that because of the limited medical services available at 

the jail, the jail staff were not qualified at 3:40 a.m. on April 3, 2016, to determine what 

Mr. Ward's medical needs were or whether he could be safely returned to the jail facility. 

SAC ¶ 38. Plaintiffs claim that because jail staff were unable to make an assessment 

about whether Mr. Ward could be safely housed in the jail, the County defendants and 

CFMC "delegated their Constitutional obligation to render appropriate medical care, and 

determine whether such care could be rendered within the Mendocino County Jail, to 

UVMC-affiliated medical staff, including Dr. Marvin Trotter." SAC ¶ 39. 

Plaintiffs allege further that "[b]ased on the limited medical services available to 
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the Mendocino County Jail," and the absence of other emergency medical facilities in the 

area, the above-described delegation of constitutional obligations was "common, known, 

and done . . . with the express understanding of the UVMC-affiliated medical staff,”

including Dr. Trotter, or with an “implicit understanding based on a long-standing custom 

and practice” that existed between UVMC, UVMC-affiliated medical staff, and the 

Mendocino County Jail. SAC ¶ 40. Plaintiffs claim that UVMC-affiliated medical staff 

"were aware of this practice," and "were aware that some portion of the monies earned 

by UVMC-affiliated medical staff were earned voluntarily treating and evaluating inmates 

from Mendocino County Jail." SAC ¶ 40. 

Plaintiffs argue that the fact that Mr. Ward was admitted to the hospital is 

significant because it shows that the UVMC hospitalist group "voluntarily agreed" to 

provide Mr. Ward with medical services, "fully aware that he was a criminal detainee.” 

They argue that the allegation that Mr. Ward was admitted to the hospital completely 

obviates any obligation Dr. Trotter might have had under EMTALA. Rather, they assert, 

the treatment rendered by Dr. Trotter was pursuant to the “voluntary assumption of the 

duty to render care” attendant to Dr. Leslee's decision, on behalf of the UVMC hospitalist 

group, to admit Mr. Ward.

Similarly, plaintiffs contend, Dr. Trotter "voluntarily assumed a state function" in 

discharging Dr. Trotter. They claim that because they have now alleged that Mr. Ward 

was not discharged from the ER, but rather from the hospital, where he was admitted for 

an evaluation, and that the discharge by Dr. Trotter occurred before the evaluation could 

be completed, they have pled facts sufficient to show that Dr. Trotter was a state actor 

under the “public function” test. 

Plaintiffs also contend that the facts alleged show that it was Dr. Trotter's 

"exclusive decision" to return Mr. Ward to the jail cell. Plaintiffs appear to equate the 

decision to discharge Mr. Ward from the hospital with the decision to place him in a jail 

cell. They claim that Dr. Trotter had the "ability and obligation" to keep Mr. Ward in the 

hospital until he could be "safely discharged." They contend that "[d]ischarge requires 
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both an assessment of the patient's needs, and whether those needs can be served in 

the environment in which they are discharged to." In Mr. Ward's case, plaintiffs argue, 

"Dr. Trotter's role in assessing Mr. Ward's fitness to return to jail was coextensive with the 

state function of determining whether, and how, Mr. Ward could be safely held in 

custody." 

The court finds that the SAC does not adequately allege facts showing that Dr. 

Trotter was a state actor. Dr. Trotter is a private individual – not an employee of 

Mendocino County or an agent of the County. Private conduct is not covered under 

§ 1983. Van Ort, 92 F.3d at 835. “Action by a private party . . . without something more, 

[is] insufficient to justify a characterization of that party as a ‘state actor.’” Lugar, 457 

U.S. at 938. Of the tests used to determine whether a private entity has acted under 

color of state law, see id.; see Johnson, 113 F.3d at 1118, plaintiffs argue only that Dr. 

Trotter was a state actor because he assumed a “public function.” 

“Under the public function test, when private individuals or groups are endowed by 

the State with powers or functions governmental in nature, they become agencies or 

instrumentalities of the State and subject to its constitutional limitations.” Kirtley, 326 

F.3d at 1093 (citation and quotation omitted); see also Lee v. Katz, 276 F.3d 550, 554-55 

(9th Cir. 2002). The scope of the public function test is relatively narrow, and the test is 

satisfied only on a showing that the function at issue is “both traditionally and exclusively 

governmental.” Kirtley, 326 F.3d at 1093; Lee, 276 F.3d at 555. 

It is undisputed that providing medical care to prison inmates and pretrial 

detainees is a governmental function. Blum v. Yaretsky, 457 U.S. 991, 1011 (1982); see 

also West, 487 U.S. at 56. A private physician or hospital that contracts with a public 

prison system to provide treatment for inmates performs a public function and acts under 

color of law for purposes of § 1983. West, 487 U.S. at 57 n.15; see also Lopez v. Dep't 

of Health Servs., 939 F.2d 881, 883 (9th Cir.1991). Here, however, unlike in West and 

Lopez, there are no allegations that Dr. Trotter performed any medical duties at the 

Mendocino County Jail, and no allegations that either UVMC or Dr. Trotter entered into 
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any contractual agreement with Mendocino County to provide medical care to its inmates. 

Rather, as alleged in the SAC, Mendocino County entered into a contract with CFMC to 

provide medical treatment at the jail.

Plaintiffs’ "public function" argument fails because there are no facts alleged 

showing that Dr. Trotter was delegated a public function by the County of Mendocino. 

The mere act of taking Mr. Ward to UVMC for an evaluation after he was observed at the 

Mendocino County Jail with blood and a bruise on his forehead was insufficient to 

constitute a delegation of the governmental duty to provide medical care to inmates.2 

The allegation that on April 3, 2016, "jail staff were not able to able to make an 

assessment about whether Mr. Ward could be safely housed in the jail," SAC 

¶ 39, is pure speculation, and is not supported by facts alleged elsewhere in the SAC –

that the Deputies took Mr. Ward to UVMC because he had a bruise and blood on his 

head, SAC ¶ 35. Further, the allegation that in being unable to make this "assessment," 

the County defendants "delegated their Constitutional obligation to render appropriate 

medical care, and determine whether such care could be rendered within the Mendocino 

County Jail, to UVMC-affiliated medical staff," SAC ¶ 39, is also pure speculation. There 

are no facts alleged showing such a delegation on the part of the County defendants. 

With regard to plaintiffs' contention that Dr. Trotter assumed an essential state 

function by determining whether Mr. Ward could continue to be safely housed in the jail, 

 

2

 Nor is plaintiffs’ position supported by Rodriguez v. Plymouth Ambulance Serv., 577 

F.3d 816 (7th Cir. 2009), a case on which they heavily rely. In that case, the Seventh 

Circuit found that a hospital that declined to treat the prisoner-patient did not operate 

under color of state law, but that a hospital that did treat him was a state actor. Id. at 

831. However, the plaintiff alleged that he was placed in a “prison ward” of the second 

hospital – which indicated that the hospital “had an ongoing relationship with prison 

authorities for care of prisoner-patients in need of hospitalization” – and that he remained 

in that ward for a period of several days. The court found that these allegations were 

sufficient to show that the plaintiff’s treatment was “tied to the state’s responsibility for his 

overall medical care,” even though it also found that no claim was stated against the 

hospital because the plaintiff alleged no facts showing that the hospital had any policy or 

procedure of deliberate indifference. Id. Here, plaintiffs allege that Mr. Ward was 

examined in the ER, and was briefly admitted to the hospital for evaluation, and was 

discharged the same day. There are no facts showing any connection between UVMC

and/or Dr. Trotter and the County.
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there are no facts pled in the SAC showing that Dr. Trotter had any duty, authority, or 

ability to make a decision to return Mr. Ward to his jail cell, or to determine whether Mr. 

Ward should be held in custody at all. 

If anything, it was Dr. Trotter’s duty as the supervisor of Ms. Graff, the nurse 

practitioner, to assure that her recommendation for Mr. Ward's discharge from the 

hospital was appropriate. Plaintiffs allege no facts showing that the discharge was not 

appropriate, and indeed, the fact that the fall that resulted in the injuries that ultimately led 

to Mr. Ward's death did not occur for nearly two weeks after he was returned to the jail

counters any claim that he was not stable at the time of discharge from UVMC. 

CONCLUSION

In accordance with the foregoing, the court GRANTS the motion. Because the 

court finds that further amendment would be futile, and because plaintiffs have already 

been provided an opportunity to amend this claim, the Fourteenth Amendment deliberate 

indifference claim against Dr. Trotter is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

Dated: November 1, 2017

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PHYLLIS J. HAMILTON

United States District Judge