Naini v. King County Hospital District No 2

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

8 AT SEATTLE

9 ALI J. NAINI, CASE NO. C19-0886-JCC

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Plaintiff, ORDER

11 v.

12 KING COUNTY PUBLIC HOSPITAL

DISTRICT NO. 2 d/b/a EVERGREEN

13 HOSPITAL MEDICAL CENTER et al.,

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Defendants.

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16 This matter comes before the Court on Defendants’ motion for partial summary judgment

17 (Dkt. No. 80). Having considered the parties’ briefing and the relevant record, the Court hereby

18 GRANTS the motion in part and DENIES the motion in part for the reasons explained herein.

19 I. BACKGROUND

20 In 2012, Plaintiff Dr. Ali Naini and Defendant Dr. Melissa Lee spoke with one another in

21 an office on the Intensive Care Unit of Defendant King County Public Hospital District No. 2

22 (“Evergreen”). (Dkt. Nos. 82-7 at 2, 82-8 at 2.) Plaintiff and Dr. Lee disagree about what was

23 said, who started the conversation, and what transpired. (Compare Dkt. Nos. 82-7 at 2–3, with

24 82-8 at 2–3.) Plaintiff accuses Dr. Lee of forcefully grabbing and threatening to “crucify” him

25 because he advised a patient’s family that patients receive a lower level of care in the ICU if they

26 are designated “Do Not Resuscitate.” (See Dkt. No. 82-7 at 2–3.) Dr. Lee denies forcefully

1 grabbing Plaintiff or threatening to crucify him, but she agrees that she told Plaintiff that she

2 found his comments to his patient’s family insulting. (See Dkt. No. 82-8 at 2–3.) Dr. Lee also

3 remembers raising concerns over Plaintiff’s alleged tendency to make critical care decisions

4 about a patient without discussing those changes with ICU staff. (See id. at 2.)

5 Following Plaintiff and Dr. Lee’s contested meeting in 2012, the two doctors engaged in

6 a series of discussions with other Evergreen physicians and staff members about communication

7 issues in the ICU. (See Dkt. Nos. 97-7 at 2, 97-14 at 2–3, 97-15 at 2–4, 97-16 at 2–5). During

8 those discussions, Plaintiff complained that ICU staff were overriding and changing his

9 neurosurgical orders without talking to him first. (See Dkt. Nos. 97-12 at 3, 97-16 at 2.) Dr. Lee,

10 on the other hand, felt that Plaintiff was ignoring the expertise of ICU team members and was

11 making improper unilateral decisions about ICU patients. (See Dkt. No. 82-8 at 2.) She therefore

12 drafted “Neurosurgical Management Guidelines” designed to require Plaintiff to include ICU

13 team members in certain conversations with patients and in specific decisions about patient care.

14 (See Dkt. No. 97-15 at 2–3.) Those guidelines were eventually implemented in 2016. (Dkt. No.

15 97-17 at 2–4.)

16 On June 16, 2016, Dr. Lee contacted Defendant Dr. Robert Geise, then-president of

17 Evergreen’s medical staff, about “two patient interactions with [Plaintiff]” and about Plaintiff

18 “blatantly breaking” the new guidelines. (Dkt. No. 97-18 at 2.) Five days later, Dr. Geise

19 contacted Plaintiff to arrange a meeting about what happened with the patients and any concerns

20 Plaintiff had with patient care. (See Dkt. No. 82-11 at 2–3.) Plaintiff subsequently sent Dr. Geise

21 an email summarizing their conversation. (Dkt. No. 82-12 at 2.) Plaintiff’s email emphasized two

22 points of discussion: (1) Plaintiff’s concern that ICU team members were having DNR

23 discussions without the attending physician present and (2) how to resolve differences of opinion

24 between the attending physician and ICU team members. (See id. at 2–3.)

25 Dr. Geise also summarized the meeting in an email to medical staff officers. (See Dkt.

26 No. 82-14 at 2–3.) In that email, Dr. Geise expressed his concern that “[Plaintiff] is clearly

1 stepping outside his area of expertise and lacks insight in several areas.” (Id. at 2.) Dr. Geise also

2 observed that “[t]here is a highly antagonistic relationship between [Plaintiff] and almost all the

3 critical care and hospitalist doctors which is compromising patient management.” (Id.) Given

4 those concerns, Dr. Geise recommended further discussions about whether “we need to consider

5 a[] [Focused Professional Practitioner Evaluation (“FPPE-C”)] for [Plaintiff] with regards to co-

6 management of critically ill patients with co-morbities.” (Id. at 3) A few days later, Dr. Scott

7 Burks circulated a draft FPPE-C to other medical staff officers. (See Dkt. No. 82-15 at 2–3.)

8 On June 28, 2016, Dr. Geise met with ICU physicians and staff members to discuss

9 issues about Plaintiff “from [a] Hospitalist/Intensivist viewpoint.” (See Dkt. No. 82-16 at 2–3.)

10 During the meeting, ICU staff members alleged that Plaintiff “will paint a rosy picture to the

11 family and try to convince them that DNR status is not the way to go.” (Id. at 3.) Dr. Lee was

12 even more forceful, stating that the hospitalists and intensivists felt disrespected and frustrated,

13 that Plaintiff was a “dangerous provider,” and that “she want[ed] to hear from medical staff

14 leadership . . . that there will be a plan.” (Id. at 2–3.) In response to Dr. Lee’s comments, Dr.

15 Geise “affirmed that he ha[d] a plan for formal review.” (Id. at 2.)

16 Dr. Geise articulated his plan in an email to physicians and the medical staff office. (See

17 Dkt. No. 82-17 at 2.) Dr. Geise’s email called for the “assembl[y] [of] a multidisciplinary group

18 of providers [to] review a series of [Plaintiff’s] cases that have been brought up as being highly

19 concerning.” (Id.) According to Dr. Geise, a review of Plaintiff’s cases was warranted because

20 Plaintiff had demonstrated a “recurring pattern of clinical judgment and behavior that is

21 potentially compromising patient safety and care.” (Id.)

22 On July 13, 2016, an ad hoc committee met to review four of Plaintiff’s cases. (Dkt. No.

23 82-18 at 2–7.) The committee then sent three of the cases to an external reviewer. (See generally

24 Dkt. No. 82-20.) Before the external reviewer issued a report, however, Plaintiff met with Dr.

25 Geise and others to discuss “1.) Documentation in the medical record. 2.) Communication within

26 the patient care team. 3.) Clinical judgment.” (Dkt. No. 97-32 at 2.) At the meeting, Plaintiff was

1 told that Evergreen was working on developing an FPPE-C. (Id.) The FFPE-C, Dr. Geise

2 emphasized, was “meant to be educational to help providers improve, not punitive.” (Id.) Yet Dr.

3 Geise also described the situation as a “wakeup call” and expressed his desire to “help [Plaintiff]

4 get back on track.” (Id. at 3.) Plaintiff responded that “[h]e di[dn’t] feel that the three cases were

5 managed well in the ICU” and that “patients are dying that do not need to die.” (Id.) Plaintiff also

6 agreed to voluntarily refrain from certain clinical activities until Evergreen’s Medical Executive

7 Committee (“MEC”) had received and evaluated the results of the external review. (Id. at 2.)

8 The external reviewer eventually issued a report in August 2016. (See generally Dkt. No.

9 82-20.) That report was subsequently sent to the MEC, which voted to pursue an FPPE-C for

10 Plaintiff. (Dkt. Nos. 82-22 at 2–4, 82-23 at 2.) The FPPE-C was designed to monitor Plaintiff’s

11 “[c]ommunication and interaction style,” “[d]ocumentation of daily evaluation, care and decision

12 making process,” “[c]ompliance with Neurosurgery Management Guidelines in [the] ICU,” and

13 “[m]aintenance of knowledge of current practices.” (Dkt. No. 82-23 at 2.)

14 Over the next year, Plaintiff’s medical staff privileges started to come under threat. On

15 April 3, 2017, for example, Dr. Geise sent a letter to Plaintiff informing him that the medical

16 staff officers were recommending to the MEC that he undergo a competency assessment at the

17 University of California, San Diego at his own expense. (See Dkt. No. 97-33 at 2.) “Failure to

18 complete the competency assessment within 6 months,” the letter warned, “will result in

19 automatic termination of your membership and privileges as a member of the EvergreenHealth

20 Medical Staff.” (Id.) Then in June 2017, Dr. Geise sent a letter to Plaintiff alleging that Plaintiff

21 had violated the neurosurgical ICU co-management agreement when he (1) “had discussions

22 about prognosis with [a] patient’s family without consulting the intensivist or neurologist” and

23 (2) “arranged to have a family conference at [his] office with the family in order, apparently, to

24 avoid involvement of the intensivist or neurologist.” (Dkt. No. 97-34 at 2.) The letter told

25 Plaintiff that his privileges could be summarily suspended if he did not “immediately comply

26 with the ICU co-management in every respect.” (Id. at 3.)

1 During this same period, Dr. Lee continued to voice concerns about Plaintiff. In an

2 August 2017 email addressed to the medical staff and Dr. Jeff Tomlin, Dr. Lee wrote regarding

3 one of Plaintiff’s recent cases, “I am formally stating that in my professional opinion as ICU

4 Medical and QI Director, [Plaintiff] is not safe to be managing critically ill patients at Evergreen

5 Healthcare.” (Dkt. No. 97-36 at 4) (emphasis omitted). Dr. Geise forwarded the email to

6 Defendant Dr. James O’Callaghan and Dr. Burks, asking, “Have we reached a tipping point?”

7 (Id. at 2.) Dr. O’Callaghan responded, “Yup.” (Id.)

8 Litigation in this case commenced on October 25, 2017, when Plaintiff filed a complaint

9 in King County Superior Court. (Dkt. No. 11-1.) In that complaint, Plaintiff sought to prevent

10 Defendants from revoking his hospital privileges if he did not complete the competency

11 assessment at the University of California, San Diego. (Id. at 3.) In response to Plaintiff’s

12 complaint, Evergreen agreed to withdraw, “without prejudice,” the FPPE-C requiring Plaintiff to

13 complete the competency assessment. (See Dkt. No. 12-8 at 8.)

14 Although Evergreen withdrew the competency assessment requirement, the MEC soon

15 voted to institute a Corrective Action Plan (“CAP”) for Plaintiff to “address the area of

16 communication and assess clinical competency.” (Dkt. No. 97-38 at 2.) Under the CAP,

17 Plaintiff’s 2018 cases were to be evaluated if they met certain criteria. (See id. at 4–5.)

18 While the CAP was ongoing, Plaintiff submitted his reapplication for two years of

19 medical staff privileges at Evergreen. (Dkt. No. 18-12 at 18–52.) The Credentials Committee

20 (“CC”) and MEC considered Plaintiff’s reapplication, and on October 16, 2018, Dr. O’Callaghan

21 sent Plaintiff a letter notifying Plaintiff that the CC and MEC were not prepared to extend his

22 privileges for two years “[d]ue to an ongoing investigation regarding concerns of professional

23 competence and professional conduct.” (See Dkt. No. 82-36 at 2.) Instead, the CC and MEC

24 “approved [Plaintiff’s] reappointment for three months.” (Id.) According to the letter, that

25 reappointment was “effective from 10/16/2018 12:00:00 AM through 01/15/2019.” (Id.)

26 On January 9, 2019, the CC met and voted unanimously to recommend that the Board not

1 renew Plaintiff’s privileges. (Dkt. No. 82-38 at 3.) Dr. O’Callaghan attended the meeting and

2 voted along with 10 other members of the committee; Dr. Geise recused himself and did not

3 attend. (Id. at 2–3.) One day after the CC’s vote, Dr. Kevin Hansen, chair of the CC, allegedly

4 called Plaintiff and informed him of the CC’s recommendation. (Dkt. No. 97-58 at 2.) According

5 to Plaintiff, Dr. Hanson assured Plaintiff that he could continue practicing at Evergreen until both

6 the MEC and Evergreen’s Board of Commissioners approved the CC’s recommendation. (Id.)

7 The MEC—including Dr. O’Callaghan—unanimously approved the recommendation on January

8 14, 2019. (Dkt. No. 82-40 at 3.)

9 What happened next is vigorously disputed by the parties. Plaintiff claims that the Board

10 voted to not renew his privileges on January 15, 2019. (Dkt. No. 95 at 13.) Defendants claim that

11 no vote occurred and that Plaintiff’s privileges naturally expired. (Dkt. No. 80 at 10–11.) What is

12 undisputed, however, is that on January 17, 2019, Dr. O’Callaghan called Plaintiff and told

13 Plaintiff that he was “no longer on staff” because the Board had approved the MEC’s

14 recommendation to not renew his privileges. (Dkt. Nos. 97-48 at 53–55, 97-54 at 2.) Five days

15 later, Plaintiff filed a motion for a preliminary injunction, asking the Superior Court to

16 “prohibit[] any interference with his exercise of privileges at EvergreenHealth.” (Dkt. No. 14-26

17 at 26.) The Superior Court found that there was “no question on this record that the hospital

18 ha[d] taken adverse action against [Plaintiff] by completely suspending his privileges without

19 any advance hearing.” (See Dkt. No. 32-1 at 60.) That summary “suspension,” the Superior

20 Court concluded, had likely denied Plaintiff due process and violated Evergreen’s bylaws. (Id. at

21 60–61; see also Dkt. No. 16-13 at 4.) The Superior Court therefore vacated Plaintiff’s

22 “suspension” and issued a preliminary injunction preventing Defendants from “[t]aking any

23 action that prevents, prohibits, or interferes with plaintiff’s exercise of privileges and

24 prerogatives as an active staff member of the EvergreenHealth Medical Center.” (Dkt. No. 16-13

25 at 4.)

26 Plaintiff subsequently amended his complaint to add claims for damages against Dr.

1 Geise, Dr. O’Callaghan, Dr. Lee, EvergreenHealthMedical Center Medical Staff, and Evergreen.

2 (Dkt. No. 28 at 41–49.) Because Plaintiff’s amended complaint included federal claims under 42

3 U.S.C. §§ 1983 and 1985(3), Defendants removed the case to this Court. (Dkt. No. 2.)

4 Defendants now move for summary judgment dismissal of Plaintiff’s §§ 1983 and 1985(3)

5 claims.1 (See Dkt. No. 80 at 14–26 & n.9.)

6 II. DISCUSSION

7 A. Legal Standard

8 “The court shall grant summary judgment if the movant shows that there is no genuine

9 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

10 Civ. P. 56(a). Material facts are those that may affect the outcome of the case, and a dispute

11 about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a

12 verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

13 In deciding whether there is a genuine dispute of material fact, the Court must view the facts and

14 justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party.

15 Id. at 255. The Court is therefore prohibited from weighing the evidence or resolving disputed

16 issues in the moving party’s favor. Tolan v. Cotton, 572 U.S. 650, 657 (2014).

17 Once a motion for summary judgment is properly made and supported, the opposing

18 party “must come forward with ‘specific facts showing that there is a genuine issue for trial.’”

19 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.

20 Civ. P. 56(e)). Conclusory, non-specific statements in affidavits are not sufficient, and “missing

21 facts” will not be “presumed.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990).

22 Ultimately, summary judgment is appropriate against a party who “fails to make a showing

23 sufficient to establish the existence of an element essential to that party’s case, and on which that

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1 Defendants also ask the Court to “enter an order finding that claims or damages preceding June

25 2016 are time barred pursuant to the applicable three-year statute of limitations.” (Dkt. No. 80 at

25.) But Defendants do not point to any of Plaintiff’s claims that would be barred. The Court will

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not prospectively decide a legal issue unless and until that issue becomes relevant.

1 party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

2 B. Plaintiff’s § 1983 Procedural Due Process Claim Against Evergreen

3 42 U.S.C. § 1983 provides a cause of action against persons who (1) under color of state

4 law or custom (2) subject, or cause to be subjected, any person to (3) the deprivation of any

5 rights, privileges, or immunities secured by the Constitution or the laws of the United States.

6 Defendants ask the Court to dismiss Plaintiff’s § 1983 procedural due process claim against

7 Evergreen on two grounds. First, Defendants contend that Evergreen did not “cause” a violation

8 of Plaintiff’s due process rights because its Board of Commissioners—the body with final

9 authority regarding physician privileges—did not take final policy action to deprive Plaintiff of

10 his privileges. (See Dkt. No. 80 at 18.) Second, Defendants argue that regardless of whether

11 Evergreen took final policy action, Evergreen did not deprive Plaintiff of his due process rights

12 because it provided him with adequate procedural protections. (See id. at 19–20.) The Court

13 concludes that genuine issues of material fact preclude summary judgment on the first ground

14 and that the parties’ inadequate briefing precludes summary judgment on the second ground.

15 1. Causation

16 Section 1983 does not render a municipal entity vicariously liable for the acts of its

17 employees; the entity must “cause” the plaintiff’s injury. Monell v. Dep’t. of Soc. Servs., 436

18 U.S. 658, 694 (1978); Tanner v. Heise, 879 F.2d 572, 582 (9th Cir. 1989). A municipal entity can

19 cause a plaintiff’s injury in “one of three ways.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th

20 Cir. 1992). First, the entity’s employee might commit a constitutional violation while acting

21 pursuant to the entity’s policy, practice, or custom. Id. Second, an employee (or decision-making

22 body) endowed with “final policy-making” authority might violate the plaintiff’s rights in such a

23 way that the employee’s action constitutes an act of official governmental policy. Id. Third, “an

24 official with final policy-making authority [might] ratif[y] a subordinate’s unconstitutional

25 decision or action and the basis for it.” Id. at 1346–47.

26 In this case, Plaintiff offers several pieces of evidence to show that the Board took final

1 policy action against his privileges at a Board meeting on January 15, 2019. The day after the

2 Board met, the CC held its own meeting. (Dkt. No. 97-53 at 3–4.) The minutes from that meeting

3 state that Plaintiff was “no longer on staff” because “Credential Committee and MEC did not

4 recommend reappointment” and because “Board of Commissioners did not reverse that

5 decision.” (Id.) One day after the CC meeting, Dr. O’Callaghan told Plaintiff that he was “no

6 longer on staff” because the Board had approved the MEC’s recommendation to not renew

7 Plaintiff’s privileges. (Dkt. Nos. 97-48 at 53–55, 97-54 at 2.) That same day, Evergreen’s

8 medical staff coordinator sent an email containing the subject line “Board Approvals” and stating

9 Plaintiff was “no longer on staff.” (Dkt. No. 97-55 at 2.) And almost one month later, Dr.

10 O’Callaghan reported to the MEC that “[d]ue to the ongoing lawsuit, Court has overturned the

11 CC/MEC/Board approval, not to reappoint [Plaintiff] to staff.”2 (Dkt. No. 103-2 at 3.)

12 Defendants contend that these meeting minutes and other communications are the

13 product of misunderstandings, imprecise phrasings, or both. (See Dkt. No. 80 at 10–11, 16.)

14 According to Frederick Allison DeYoung, chairman of the Board, the Board was informed of but

15 did not vote on the MEC’s recommendation to not renew Plaintiff’s privileges. (Dkt. No. 81 at

16 2–3.) Dr. O’Callaghan supports Mr. DeYoung’s version of events, stating in a deposition that he

17 “misstated”—to multiple people—“what had happened at the board meeting.” (Dkt. No. 97-48 at

18 53.) In this telling of what happened, the Board did not take any action regarding Plaintiff’s

19 privileges; his privileges naturally “expired” on January 15, 2019, when his three-month

20 reappointment ended without the Board having come to a final decision. (See Dkt. No. 80 at 11)

21 (citing Dkt. No. 82-36 at 2).

22 Defendants provide a plausible alternative account of what happened—an alternative

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24 2 Plaintiff did not cite the MEC meeting minutes from February 2019 in his response because

Defendants did not produce the minutes until two days after Plaintiff’s deadline to submit his

25 response. (See Dkt. No. 102 at 1–2.) The Court finds good cause to consider those meeting

minutes in deciding whether to grant summary judgment. Accordingly, the Court GRANTS

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Plaintiff’s motion to supplement the summary judgment record (Dkt. No. 102).

1 account that a jury might ultimately believe. A jury could conclude, for example, that the CC

2 was misinformed about what took place at the January 15 Board meeting; that Evergreen’s

3 medical staff coordinator was erroneously told that the Board had approved a change in

4 Plaintiff’s employment status; that the minutes of the MEC meeting in February incorrectly

5 referred to the “Board approval, not to reappoint [Plaintiff] to staff”; and that Dr. O’Callaghan’s

6 January 17 letter to Plaintiff, which states that the Board had not yet made a final decision, (see

7 Dkt. No. 82-42 at 3–4), is more accurate than what Dr. O’Callaghan told Plaintiff over the phone

8 that very same day, (see Dkt. Nos. 97-48 at 53–55, 97-54 at 2). But to obtain summary judgment,

9 Defendants must do more than provide a plausible alternative account; they must show that no

10 reasonable jury could believe Plaintiff’s version of events. See Anderson, 477 U.S. at 248–49.

11 Defendants have not carried their burden. Instead, Defendants ask the Court to improperly weigh

12 the evidence and resolve disputed issues in their favor. Weighing evidence and resolving

13 disputed issues is a task for the jury, not the Court. See Tolan, 572 U.S. at 657–58.

14 2. Procedural Protections

15 Defendants argue that even if Evergreen took final policy action, it did not violate

16 Plaintiff’s due process rights because it provided him with adequate procedural protections. (See

17 Dkt No. 80 at 19–20.) Unfortunately, the Court cannot determine the procedural protections to

18 which Plaintiff was entitled because the parties have failed to discuss the nature of Plaintiff’s

19 property interest in the renewal of his medical staff privileges.

20 The principles governing a procedural due process claim are simple to state. To succeed

21 on such a claim, a plaintiff must show (1) they possessed a constitutionally protected liberty or

22 property interest and (2) the defendant deprived them of that interest without affording adequate

23 procedural protections. Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998). When the

24 claim involves a property interest, the first element is met if the plaintiff had a “legitimate claim

25 of entitlement” to the property interest. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). The

26 second element is met if the defendant afforded procedural protections that were inadequate

1 given the following three factors:

2 First, the private interest that will be affected by the official action; second, the risk

of an erroneous deprivation of such interest through the procedures used, and the

3 probable value, if any, of additional or substitute procedural safeguards; and finally,

the Government's interest, including the function involved and the fiscal and

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administrative burdens that the additional or substitute procedural requirement

would entail.

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Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

6

Although these principles are easy to state, they can be difficult and fact-intensive to

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apply. To decide if a plaintiff has a property interest in continued employment, for example, a

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court usually must examine the text of the plaintiff’s employment contract. See Jago v. Van

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Curen, 454 U.S. 14, 17–18 (1981) (“Principles of contract law naturally serve as useful guides in

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determining whether or not a constitutionally protected property interest exists.”). But looking at

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a contract’s text is often not enough: in some cases, a property interest is impliedly created even

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though it is not explicitly contained in an employment contract. See id. (citing Perry v.

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Sindermann, 408 U.S. 593, 601–02 (1972); Bishop v. Wood, 426 U.S. 341, 344 (1976)). And if a

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court decides that a plaintiff has a constitutionally protected property interest, it must look to the

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nature of the property interest to determine if the defendant afforded the plaintiff adequate

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procedural safeguards prior to depriving the plaintiff of that interest. See Brewster, 149 F.3d at

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983. That determination is invariably case-specific because “‘due process,’ unlike some legal

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rules, is not a technical conception with a fixed content unrelated to time, place, and

19

circumstances.’” Mathews, 424 U.S. at 334 (quoting Cafeteria Workers v. McElroy, 367 U.S.

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886, 895 (1961)).

21

In this case, the parties largely ignore whether Plaintiff had a constitutionally protected

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interest in the renewal of his privileges. Defendants, on the one hand, assume “[f]or purposes of

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this motion only . . . that Plaintiff’s medical staff privileges are a constitutionally protected

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interest.” (Dkt. No. 80 at 17.) Plaintiff, on the other hand, briefly argues that he has a

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“constitutionally protected interest in his medical staff privileges,” but he does not discuss

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1 whether he had an interest in the renewal of those privileges. (See Dkt. No. 95 at 16–17 & n.4.)

2 That distinction is important because the “mere fact a person has received a government benefit

3 in the past, even for a considerable length of time, does not, without more, rise to the level of a

4 legitimate claim of entitlement.” Doran v. Houle, 721 F.2d 1182, 1186 (9th Cir. 1983).

5 Accordingly, a person likely lacks a property interest in the renewal of their hospital privileges

6 “if the reviewing body has discretion to deny renewal or impose . . . criteria of its own creation.”

7 See Thornton v. City of St. Helens, 425 F.3d 1158, 1164–65 (9th Cir. 2005) (citing Jacobson v.

8 Hannifin, 627 F.2d 177, 180 (9th Cir. 1980)). Conversely, a person may possess a property

9 interest in the renewal of their privileges if the reviewing body’s decision is substantively

10 constrained by a contract or custom between the parties. See id. at 1164–65 & n.2. Unfortunately,

11 neither Plaintiff nor Defendants address whether there were substantive constraints on the

12 Board’s decision to renew Plaintiff’s privileges.

13 Because the parties fail to address whether Plaintiff had a constitutionally protected

14 interest in the renewal of his privileges, it is difficult for the Court to determine if Evergreen

15 afforded Plaintiff adequate procedural protections. Take the risk-of-erroneous-deprivation factor

16 as an example. In cases where courts have held that pre-deprivation process was needed to avoid

17 an erroneous deprivation of a physician’s privileges, those courts focused on how pre-

18 deprivation process would improve the hospitals’ decision-making. See Osuagwu v. Gila Reg’l

19 Med. Ctr., 938 F. Supp. 2d 1142, 1159–61 (D.N.M. 2012); Dr. Marin v. Citizens Mem’l Hosp.,

20 1985 WL 6001, slip op. at 1 (S.D. Tex. 1985) (“[P]rocedural due process must be afforded an

21 applicant so that he may explain or show to be untrue those matters which might lead the board

22 to reject his application.”). Yet here, the parties have failed to discuss the nature of the decision

23 that the Board had to make before it declined to renew Plaintiff’s privileges. Was the Board

24 required to find “good cause” for not renewing Plaintiff’s privileges? If so, then pre-deprivation

25 process would likely be valuable. See Osuagwu, 938 F. Supp. 2d at 1148, 1159–61. If not, then

26 pre-deprivation process would have less value.

1 Absent briefing that addresses the nature of Plaintiff’s property interest in the renewal of

2 his privileges, it is inappropriate for the Court to decide the level of process that Evergreen had

3 to provide Plaintiff prior to not renewing his privileges. Any future briefing on the issue should

4 focus on the nature of Plaintiff’s property interest in the renewal of his privileges and the nature

5 of the decision the Board had to make when deciding whether to renew his privileges.

6 C. Plaintiff’s § 1983 Procedural Due Process Claims Against the Individual

7 Defendants

8 Defendants move for summary judgment dismissal of Plaintiff’s § 1983 procedural due

9 process claims against the individual Defendants on two grounds. First, Defendants argue that

10 those Defendants did not “cause” Plaintiff to lose his privileges without due process. (See Dkt.

11 No. 80 at 15–17.) Second, Defendants contend that even if the individual Defendants “caused”

12 Plaintiff’s constitutional injury, those Defendants are entitled to qualified immunity. (Id. at 23–

13 25.) The Court concludes that genuine issues of material fact preclude summary judgment on the

14 first ground and that the Court would need additional briefing to decide the second issue.

15 1. Causation

16 Section 1983’s causation requirement is met if an individual “does an affirmative act,

17 participates in another’s affirmative acts, or omits to perform an act which he is legally required

18 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,

19 743 (9th Cir. 1978). “[P]ersonal participation is not the only predicate for § 1983 liability,” id.,

20 however, because § 1983’s causation requirement is “read against the background of tort liability

21 that makes a man responsible for the natural consequences of his actions.” Malley v. Briggs, 475

22 U.S. 335, 344 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)). Those

23 background principles also render a person liable under § 1983 if the person “sets in motion a

24 ‘series of acts by others which the actor knows or reasonably should know would cause others to

25 inflict’ constitutional harms.” Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183

26 (9th Cir. 2007) (quoting Duffy, 588 F.2d at 743).

1 Contrary to Defendants’ assertion, (see Dkt. No. 80 at 16–17), these causation principles

2 do not require that a person be a voting member of a board for the person to be liable for the

3 board’s decision. Such a requirement would contradict the plethora of cases holding that a

4 subordinate government employee is liable under § 1983 for the decision of a superior if the

5 subordinate causes the superior to make the decision. See, e.g., Strahan v. Kirkland, 287 F.3d

6 821, 826 (9th Cir. 2002) (quoting Gilbrook v. City of Westminster, 177 F.3d 839, 854–55 (9th

7 Cir. 1999)) (“Even if the ultimate decision-maker can establish that the adverse action was not in

8 retaliation for protected conduct, a subordinate with a retaliatory motive can be liable ‘if an

9 improper motive sets in motion the events that lead to termination that would not otherwise

10 occur.’”); see also Smith v. Bray, 681 F.3d 888, 898 (7th Cir. 2012) (collecting cases). Those

11 cases draw no distinction between decisions made by a single actor and decisions made by a

12 board comprised of multiple actors. See Prof’l Ass’n of College Educators v. El Paso Cty. Cmty.

13 Coll. Dist., 730 F.2d 258, 266 (5th Cir. 1984) (upholding § 1983 claim against college president

14 where the president recommended that the board of trustees discharge faculty members and the

15 board followed that recommendation). The question is ultimately one of causation, and a person

16 can “cause” a board to act even if the person is not a voting member of the board.3

17 Although it is possible for a person to cause a board to deprive someone of their

18 constitutional rights, Plaintiff’s procedural due process claims against the individual Defendants

19 present unique causation issues. To succeed on those claims, Plaintiff must do more than show

20

21 3 Chudacoff v. University Medical Center of Southern Nevada, 649 F.3d 1143 (9th Cir. 2011), is

not to the contrary. In that case, the Ninth Circuit held that voting members of a county

22

hospital’s medical executive committee could be liable for the plaintiff’s constitutional injuries

while a non-voting member was not liable. See Chudacoff, 649 F.3d at 1151–52. In so holding,

23

the Ninth Circuit did not announce a bright-line rule that a person must be a voting member of a

24 decision-making body to be liable for the body’s decision. See id. The Ninth Circuit instead held

that the individual defendant’s “mere non-voting membership,” absent any additional facts, was

25 “insufficient to show that she was an ‘integral participant’ in the deprivation of [the plaintiff’s]

rights.” See id. at 1151 (emphasis added) (quoting Boyd v. Benton County, 374 F.3d 773, 780

26

(9th Cir. 2004)).

1 that the individual Defendants caused the Board to not renew his privileges; he must show that

2 they caused the Board to not renew his privileges without due process. Moreover, given that the

3 individual Defendants did not directly participate in the Board’s decision, (see Dkt. No. 80 at 16–

4 17), Plaintiff must demonstrate that they knew or reasonably should have known that their

5 actions would cause the Board to deny him due process. See Preschooler II, 479 F.3d at 1183

6 (quoting Duffy, 588 F.2d at 743).

7 As far as the Court can tell, the parties do not discuss whether it was foreseeable that the

8 Board would deny Plaintiff due process. Instead, the parties focus their briefing on the distinct

9 issue of whether the individual Defendants caused the Board to not renew Plaintiff’s privileges.

10 (See Dkt. Nos. 80 at 15–17, 95 at 24–25.) The Court will therefore limit its analysis to that issue,

11 and it will analyze each individual Defendant’s role in the Board’s decision separately while

12 keeping in mind that “causation is preeminently a question of fact, to be decided after trial.”

13 Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 34 F.3d 753, 756 (9th Cir.

14 1994).

15 i. Dr. Lee

16 There are several reasons why a reasonable jury could conclude that Dr. Lee caused the

17 Board to not renew Plaintiff’s privileges. First, the evidence shows that Dr. Lee played an

18 essential role in creating co-management guidelines that targeted Plaintiff and contributed to his

19 loss of privileges: she pushed for the guidelines to be adopted as early as 2013, (see Dkt. No. 97–

20 15 at 2); she continued to work on the guidelines until they were adopted, (see Dkt. Nos. 97-14 at

21 2–3, 16 at 2–3); she linked those guidelines to Plaintiff’s fitness as a doctor, (see Dkt. No. 97-22

22 at 3) (“Dr. Lee stated that the fact that a co-management agreement is needed for this physician

23 is very concerning. Should he be allowed to admit patients to the ICU?”); and Dr. Geise cited

24 Plaintiff’s failure to abide by the guidelines as a basis for the CC’s recommendation to not renew

25 Plaintiff’s privileges, (Dkt. No. 97-59 at 2). Second, Dr. Lee had a hand in launching the formal

26 review process that led to the Board’s decision; indeed, Dr. Lee describes herself as having had

1 to “threaten” Evergreen’s president to come up with a “plan” that would lead to “change.” (See

2 Dkt. Nos. 97-22 at 3, 97-23 at 2.) Finally, Dr. Lee continued to involve herself in Plaintiff’s

3 review process once it began. (See Dkt. Nos. 97-25 at 2, 97-36 at 4.) In August 2017, for

4 example, Dr. Lee sent an email to Dr. Geise and others stating, “I want to make sure you know

5 that after a thorough evaluation of [Plaintiff’s] recent case in the ICU: I am formally stating that

6 in my professional opinion as ICU Medical and QI Director, [Plaintiff] is not safe to be

7 managing critically ill patients at Evergreen Healthcare.” (Dkt. No. 97-36 at 4) (emphasis

8 omitted).

9 ii. Dr. Geise

10 A reasonable jury could also conclude that Dr. Geise caused the Board to not renew

11 Plaintiff’s privileges. When read in the light most favorable to Plaintiff, the evidence shows that

12 Dr. Geise set into motion the review process that ultimately led to Plaintiff losing his privileges.

13 (See Dkt. Nos. 97-22 at 3, 97-24 at 2.) In addition, the evidence shows that Dr. Geise may have

14 wanted Plaintiff to lose his privileges, given that Dr. Geise identified the FPPE-C plan, (see Dkt.

15 No. 97-26 at 7), threatened to terminate Plaintiff’s privileges when he was “out of compliance”

16 with the competency-assessment portion of the plan, (see Dkt. No. 97-37 at 2), and replaced the

17 plan with the CAP after Evergreen withdrew the competency assessment in the face of Plaintiff’s

18 lawsuit, (see Dkt. No. 97-38 at 2).

19 iii. Dr. O’Callaghan

20 A reasonable jury could further conclude that Dr. O’Callaghan caused the Board to not

21 renew Plaintiff’s privileges. This is true for several reasons. First, Dr. O’Callaghan sat on the CC

22 and voted to recommend that the Board not renew Plaintiff’s privileges. (See Dkt. No. 97-50 at

23 2.) Second, Dr. O’Callaghan wrote a report summarizing the CC’s recommendation. (Dkt. Nos.

24 97-48 at 17–18, 97–59 at 2.) Apparently, the CC neither created nor approved Dr. O’Callaghan’s

25 report. (See Dkt. No. 97-47 at 7–8.) That report could therefore be viewed as a product of Dr.

26 O’Callaghan’s own making, and a reasonable jury could hold Dr. O’Callaghan responsible for

1 whatever influence the report may have had on the Board’s decision. Third, Dr. O’Callaghan

2 chaired the MEC meeting that adopted the CC’s recommendation. (Dkt. No. 97-51 at 2.)

3 2. Qualified Immunity

4 Defendants also move for summary judgment dismissal of Plaintiff’s § 1983 claims

5 against the individual Defendants on the ground that those Defendants are entitled to qualified

6 immunity. (See Dkt. No. 80 at 23–25.) The Supreme Court has emphasized “the importance of

7 resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502

8 U.S. 224, 227 (1991). Here, however, the Court is unable to resolve the qualified immunity issue

9 because it cannot determine whether the individual Defendants violated a “clearly established”

10 right unless it receives proper briefing about the nature of Plaintiff’s property interest. See

11 Pearson v. Callaghan, 555 U.S. 223, 232 (2009); supra Section II.B.2.

12 D. Plaintiff’s § 1983 First Amendment Retaliation Claims

13 Defendants also move for summary judgment dismissal of Plaintiff’s § 1983 First

14 Amendment retaliation claims. (Dkt. No. 80 at 21–23.) A First Amendment retaliation claim

15 involves five distinct questions:

16 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the

plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's

17 protected speech was a substantial or motivating factor in the adverse employment

action; (4) whether the state had an adequate justification for treating the employee

18

differently from other members of the general public; and (5) whether the state

would have taken the adverse employment action even absent the protected speech.

19

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Ordinarily, these five questions are

20

answered communication-by-communication, with the plaintiff identifying a specific

21

communication—a questionnaire distributed to coworkers, for example—and the court

22

determining if the defendant violated the First Amendment by retaliating against the plaintiff

23

because of that communication. See Connick v. Meyers, 461 U.S. 138, 140–41, 148–54 (1983).

24

Taking a communication-by-communication approach is difficult in this case, however, because

25

Plaintiff claims that Defendants retaliated against him for speech that occurred over a six-year

26

1 period and that varied in content, form, and context. (See Dkt. No. 95 at 21–24.) Given the

2 unique nature of Plaintiff’s claim, the Court will forgo a communication-by-communication

3 approach and will instead analyze what it sees as two different categories of communications:

4 Plaintiff’s communications with Evergreen employees and Plaintiff’s communications with his

5 patients.

6 1. Plaintiff’s Communications with Evergreen Employees

7 The Court will first analyze Plaintiff’s communications with Evergreen employees.

8 Defendants argue that those communications did not address an issue of public concern, and the

9 Court agrees. (See Dkt. No. 80 at 21–22.)

10 “[P]ublic employees do not lose their rights as citizens to participate in public affairs by

11 virtue of their government employment.” Ulrich v. City and County of San Francisco, 308 F.3d

12 968, 977 (9th Cir. 2002). At the same time, government officials “should enjoy wide latitude in

13 managing their offices, without intrusive oversight by the judiciary in the name of the First

14 Amendment.” Connick, 461 U.S. at 146. The competing interests between government officials

15 and public employees are balanced, in part, by the requirement in retaliation cases that an

16 employee’s speech involve a matter of public concern. See Ezekwo v. N.Y. City Health & Hosps.

17 Corp., 940 F.2d 775, 781 (2d Cir. 1991). That requirement “reflects both the historical

18 evolvement of the rights of public employees, and the common sense realization that government

19 offices could not function if every employment decision became a constitutional matter.”

20 Connick, 461 U.S. at 143.

21 “The public concern inquiry is purely a question of law.” Eng, 552 F.3d at 1070. “The

22 plaintiff bears the burden of showing that [their] speech addressed an issue of public concern,”

23 id., based on “the content, form, and context of a given statement.” Connick, 461 U.S. at 147–48.

24 The Court will address each of those factors in turn.

25 i. Content

26 The first factor the Court must consider is the content of Plaintiff’s communications.

1 Content is the “greatest single factor” in the public concern inquiry. Desrochers v. City of San

2 Bernardino, 572 F.3d 703, 710 (9th Cir. 2009). The content of speech addresses a matter of

3 public concern when the speech discusses “‘issues about which information is needed or

4 appropriate to enable the members of society’ to make informed decisions about the operation of

5 their government.” McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (quoting

6 Thornhill v. Alabama, 310 U.S. 88, 102 (1940)). By contrast, speech is usually not of public

7 concern if it touches “upon matters only of personal interest,” Connick, 461 U.S. at 147, “deals

8 with ‘individual personnel disputes and grievances,’” Coszalter v. City of Salem, 320 F.3d 968,

9 973 (9th Cir. 2003) (quoting McKinley, 705 F.2d at 1114), or “relates to internal power struggles

10 within the workplace,” Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996). And

11 even where speech contains passing references to matters of public concern, it is not of public

12 concern if its overall emphasis is on matters of personal interest. See Desrochers, 572 F.3d at

13 713 (acknowledging plaintiffs’ statements made passing references to the “proper functioning of

14 the police department” but concluding “the grievances amount to a laundry list of reasons

15 why . . . employees found working for [plaintiffs’ sergeant] to be an unpleasant experience”).

16 Here, Plaintiff’s communications with Evergreen employees primarily addressed

17 “individual personnel disputes” and “internal power struggles within the work place.” In 2012,

18 Plaintiff had a conversation with the ICU’s medical director about “poor communication over

19 case management in the ICU.” (See Dkt. No. 97-7 at 2.) In 2013, Plaintiff sent an email to Dr.

20 Lee raising similar issues, including that ICU staff had “over-ridden and changed without

21 discussion” his neurosurgical orders on a patient. (See Dkt. No. 97-16 at 2.) “Addressing these

22 circumstances,” Plaintiff complained, had caused him to “grow weary” from “stress and

23 distraction.” (Id.) One year later, Plaintiff requested a small-group discussion over “issues he

24 sees with neurosu[rgery] comanagement.” (Dkt. No. 97-9 at 2.) The matter required “no rush at

25 all,” Plaintiff emphasized. (Id.) Later that year, Plaintiff reported to Dr. Burks and Dr. Geise that

26 he had “encountered the same disturbing barriers as in the past.” (Dkt. No. 97-11 at 2.) Then in

1 2015, Plaintiff discussed clinical protocols with several Evergreen physicians. (Dkt. No. 97-12 at

2 3.) Once again, Plaintiff focused on “individual personnel disputes and grievances,” explaining

3 that he was “uncomfortable” with Evergreen imposing requirements on physicians without

4 accepting some legal liability for patients; that he had “lost control” of a patient the last time he

5 signed on to a protocol; and that a “small, but vocal minority of [Evergreen’s] nursing staff” had

6 a tendency to reflexively apply protocols regardless of the circumstances. (See id.)

7 In addition to focusing on individual personnel disputes, Plaintiff’s communications

8 emphasized how those disputes impacted him personally. In his 2013 email to Dr. Lee, for

9 example, Plaintiff stated,

10 To be honest, I’ve grown weary of the stress and distraction involved in addressing

these circumstances. I’ve accordingly lowered my call burden by two-thirds (hence,

11 fewer ICU admissions) and resigned myself to the fact that any patients I admit to

our ICU for more than 1 or 2 days will no longer be mine, aside from maybe the

12

care of the incision, etc.

13 (Dkt. No. 97-16 at 2.) And if there was any concern that Plaintiff was trying to make waves, he

14 dispelled that notion when he said, “I really don’t mean to oppose what appears to be a

15 prevailing trend in ICU care at our hospital, but at the same time do not want to be insincere and

16 tell you that it makes me happy.” (Id.) Plaintiff’s emphasis on how personnel disputes impacted

17 him suggests that he was speaking about matters of personal—not public—interest. See

18 Desrochers, 572 F.3d at 712–14; Ezekwo, 940 F.2d at 781.

19 Plaintiff disagrees that he raised concerns over ICU care out of personal interest and

20 argues that he raised those issues “out of concern for patient safety.” (Dkt. No. 95 at 21) (citing

21 Ulrich, 308 F.3d at 979). However, references to patient safety are almost entirely absent from

22 Plaintiff’s communications. In fact, of the seven communications Plaintiff highlights, (see Dkt.

23 No. 95 at 21) (citing Dkt. Nos. 97-7, 97-9, 97-11, 97-16, 97-19, 97-20, 97-21), only two arguably

24 contain such references, (see Dkt. Nos. 97-7 at 2, 97-12 at 3). One of those communications

25 appears to be another doctor’s summary of a meeting Plaintiff had about the care of two patients.

26 (See Dkt. No. 97-7 at 2.) In that summary, the doctor stated, “The overriding concern by all, as

1 well as [by Plaintiff], was the coordination and provision of appropriate quality care to these

2 patients.” (Id.) Yet what was actually said at the meeting is unknown. (See id.) In the other

3 communication, Plaintiff briefly stated, “The key to excellent care is customization to individual

4 patient needs (each patient is unique) and this is best done by an experienced, attentive and

5 engaged physician, not an 80/20 Powerplan.” (Dkt. No. 97-12 at 3.) But the rest of the

6 communication focused on how Evergreen’s policies might expose Plaintiff to legal liability and

7 on how he lost control of a patient. (See id.) Thus, “the fact that [Plaintiff’s] speech contains

8 ‘passing references to public safety[,] incidental to the message conveyed’ weighs against a

9 finding of public concern.”4 Desrochers, 572 F.3d at 711 (quoting Robinson v. York, 566 F.3d

10 817, 823 (9th Cir. 2009)).

11 Plaintiff also relies on Ulrich v. City and County of San Francisco, 308 F.3d 968 (9th Cir.

12 2002), to argue that “highlighting ‘inappropriate standards affecting patient care at a public

13 hospital . . . goes to the core of what constitutes speech on matters of public concern.’” (Dkt. No.

14 95 at 21) (quoting Ulrich, 308 F.3d at 979). Yet Plaintiff’s communications are far different from

15 those at issue in Ulrich. In that case, a physician objected to a hospital laying off other

16 physicians. Ulrich, 308 F.3d at 973. The physician said that those layoffs were “an injustice to

17 the patients,” and he felt compelled to speak out even though the layoffs did not impact him. See

18 id. at 972. Here, by contrast, Plaintiff complained of his personal disputes with ICU staff and

19 emphasized how those disputes impacted him. (See, e.g., Dkt. No. 97-16 at 2.) While those

20

21 4 There are two communications in the record that contain more forceful statements about patient

safety. (See Dkt. Nos. 97-8 at 2) (“[Plaintiff] is in denial of communic[ation] problems &

22

outlined his obligation to ‘get the p[atient] out of hosp[ital] alive.”); (Dkt. No. 97-27 at 6) (“I still

do not know why my two patients . . . had to die.”). However, both statements were prompted by

23

investigations into Plaintiff’s competency. (See Dkt. No. 97-8 at 2) (statement made during a

24 peer review of Plaintiff); (Dkt. No. 97-27 at 2–6) (information provided in defense of Plaintiff’s

“professional reputation”). That context strongly suggests that Plaintiff spoke to “protect [his]

25 own reputation” rather than to address matters of public concern. See Ezekwo, 940 F.2d at 781.

Moreover, “the mere fact that one or two of [Plaintiff’s] statements could be construed broadly to

26

implicate matters of public concern does not alter the general nature of [his] statements.” Id.

1 disputes might have implicated patient safety, “the reality that poor interpersonal relationships

2 amongst coworkers might hamper the work of a government office does not automatically

3 transform speech on such issues into speech on a matter of public concern.” Desrochers, 572

4 F.3d at 711. Plaintiff’s citation to Ulrich is therefore unavailing, and the content of Plaintiff’s

5 communications weighs against a finding that he spoke on a matter of public concern.

6 ii. Form

7 The second factor the Court must consider is the form of Plaintiff’s communications with

8 Evergreen employees. Although form is not as important of a factor as context, form still

9 “help[s] [a court] identify [whether] speech . . . is of public concern.” Weeks, 246 F.3d at 1235;

10 see also Desrochers, 572 F.3d at 715 n.17 (rejecting dissent’s attempt to “minimize” form as a

11 relevant factor). This is “particularly [true] in close cases,” Weeks 246 F.3d at 1235, because

12 form, like context, helps shed light on “the point of the speech.” Ulrich, 308 F.3d at 979 (quoting

13 Chateaubriand v. Gaspard, 97 F.3d 1218, 1233 (9th Cir. 1996)). Where the speech’s form is

14 directed at a private audience, the speech is less likely to be protected. See Desrochers, 572 F.3d

15 at 714–15. “Public speech,” the Ninth Circuit has explained, “is more likely to serve the public

16 values of the First Amendment. Private speech motivated by an office grievance is less likely to

17 convey the information that is a prerequisite for an informed electorate.” Weeks, 246 F.3d at

18 1235 (citations omitted).

19 In this case, Plaintiff bases his First Amendment claim on private emails and one event

20 report that were sent to a limited number of doctors at Evergreen. (See Dkt. No. 95 at 21) (citing

21 Dkt. Nos. 97-7, 97-9, 97-11, 97-16, 97-19, 97-20, 97-21). That “limited audience weigh[s]

22 against [Plaintiff’s] claim of protected speech.” Roe v. City and County of San Francisco, 109

23 F.3d 578, 585 (9th Cir. 1997). It also stands in stark contrast to the speech in Ulrich, which was

24 made at staff meetings, in a letter to the Department of Health, and in a publicly posted

25 resignation letter. 308 F.3d at 979.

26 //

1 iii. Context

2 The third factor the Court must consider is the context of Plaintiff’s communications.

3 Context plays a similar role to form, helping a court determine if the speech was meant to “bring

4 to light actual or potential wrongdoing or breach of the public trust,” one the one hand, or if the

5 speech was “animated instead by ‘dissatisfaction’ with one’s employment situation,” on the other

6 hand. See Desrochers, 572 F.3d at 715 (quoting Connick, 461 U.S. at 148).

7 The parties do not discuss in detail the context of Plaintiff’s communications, and it is

8 difficult to define the context of disjointed emails sent years apart from one another. (See Dkt.

9 Nos. 80 at 20–21, 95 at 21, 100 at 8–9.) However, the limited context the Court can discern

10 indicates that Plaintiff was in a years-long dispute over the allocation of authority within the

11 ICU. (See Dkt. No. 97-16 at 2) (“A number of my . . . orders on a patient in the ICU were over-

12 ridden and changed without discussion. And the issue of my patients being made DNR without

13 my input still comes up from time to time.”); (Dkt. No. 97-20 at 2) (“[Plaintiff] also expressed

14 concern[] that code status was addressed with one of his patients without his knowledge.”). That

15 dispute was, at its core, an issue about Plaintiff’s “bureaucratic niche.” Tucker, 97 F.3d at 1210

16 (quoting Nat’l Treasury Emps. Union v. United States, 990 F.2d 1271, 1273 (D.C. Cir. 1993)).

17 The public’s interest in bureaucratic niches is minimal—even when the bureaucratic niche relates

18 to a hospital. Id. Accordingly, the context of Plaintiff’s communications weighs against a finding

19 that he spoke on matters of public concern.

20 iv. Conclusion

21 Plaintiff claims that he raised “broad concerns about . . . systemic abuse” at Evergreen.

22 (Dkt. No. 95 at 22) (quoting Dahlia v. Rodriguez, 735 F.3d 1060, 1075 (9th Cir. 2013)). But the

23 Court must “look to what [Plaintiff] actually said, not what [he] say[s] [he] said after the fact.”

24 Desrochers, 572 F.3d at 714. And what Plaintiff actually said to Evergreen employees was that

25 ICU staff members were undermining his authority in a way that impacted him personally. That

26 sentiment is not afforded First Amendment protection, particularly given that it was

1 communicated to such a small group of people in the context of an “individual personnel

2 dispute[.]” See Coszalter, 320 F.3d at 973.

3 2. Plaintiff’s Communications with His Patients

4 The Court will next analyze Plaintiff’s communications with his patients. Defendants

5 argue that those communications are unprotected by the First Amendment because Plaintiff made

6 them pursuant to his official duties at Evergreen. (See Dkt. No. 80 at 22.) Once again, the Court

7 agrees.

8 As an initial matter, the Court must identify “what [Plaintiff] actually said” to his

9 patients. See Desrochers, 572 F.3d at 711. Although Plaintiff does not clearly identify what he

10 said, he cites statements and summaries of statements that he made to various patients. (See Dkt.

11 No. 95 at 21–24). Those citations indicate that Plaintiff counseled patients—often without

12 consulting ICU staff members—to reject DNR designations or transfers to hospice care. (See

13 Dkt. Nos. 14-25 at 3, 14-27 at 2–3, 14-28 at 2–3, 15-6 at 3, 97-5 at 2, 97-22 at 4, 97-34 at 2.)

14 During his consultations with patients, Plaintiff does not appear to have told those patients of his

15 “broad concerns about . . . systemic abuse” at Evergreen. (See Dkt. No. 95 at 22) (quoting

16 Dahlia, 735 F.3d at 1075). Instead, Plaintiff advised his patients based on their particular

17 circumstances and what he thought was the best course of treatment for them. (See Dkt. Nos. 14-

18 25 at 3, 14-27 at 2–3, 14-28 at 2–3.)

19 Having identified what Plaintiff said to his patients, the Court must determine if he spoke

20 to his patients as a citizen or as an employee. “[W]hen public employees make statements

21 pursuant to their official duties, the employees are not speaking as citizens for First Amendment

22 purposes, and the Constitution does not insulate their communications from employer

23 discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). “[T]he determination whether the

24 speech in question was spoken as a public employee or a private citizen presents a mixed

25 question of fact and law.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129

26 (9th Cir. 2008). That question is answered in two stages. “First, a factual determination must be

1 made as to the ‘scope and content of a plaintiff’s job responsibilities.’” Johnson v. Poway

2 Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011) (quoting Eng, 552 F.3d at 1073). This

3 initial determination is left to the jury unless the scope and content of the plaintiff’s job

4 responsibilities are “beyond the possibility for fairminded dispute.” Id. at 967. “Second, the

5 ‘ultimate constitutional significance’ of those facts must be determined as a matter of law.” Id. at

6 966 (quoting Eng, 552 F.3d at 1071). This latter determination is made “by asking ‘whether [the

7 plaintiff’s] speech owe[d] its existence to his [or her] position.” Kennedy v. Bremerton Sch. Dist.,

8 869 F.3d 813, 824 (9th Cir. 2017) (quoting Johnson, 658 F.3d at 967).

9 i. Plaintiff’s Responsibilities

10 Plaintiff’s job responsibilities, at least as they relate to his patients, are not reasonably

11 disputable. Plaintiff is a neurosurgeon. As a neurosurgeon, Plaintiff must converse with his

12 patients and their families about a variety of topics, including courses of treatment and end-of-

13 life decision-making. (See Dkt. Nos. 14-25 at 3, 14-27 at 2–3, 14-28 at 2–3.) “Communication

14 between a doctor and a patient” is, after all, “[a]n integral component of the practice of

15 medicine.” Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002).

16 ii. The Constitutional Significance of Plaintiff’s Responsibilities

17 Given that Plaintiff’s job responsibilities included conversing with patients about courses

18 of treatment and end-of-life decision-making, Plaintiff’s communications with his patients were

19 made “pursuant to [his] official duties” Garcetti, 547 U.S. at 421.

20 The Ninth Circuit has warned that “easy heuristics are insufficient for determining

21 whether an employee spoke pursuant to his professional duties.” Dahlia, 735 F.3d at 1069. Still,

22 Ninth Circuit cases have established certain “guideposts” for making that determination. See

23 Kennedy, 869 F.3d at 827. One particularly instructive case is Kennedy v. Bremerton School

24 District, 869 F.3d 813 (9th Cir. 2017). In that case, the Ninth Circuit surveyed decisions about

25 teacher speech and identified several factors that are relevant to identifying when a teacher

26 speaks as a teacher or a citizen. See Kennedy, 869 F.3d at 827–28. First, the Ninth Circuit

1 observed that “teachers necessarily act as teachers . . . when (1) at school or a school function,

2 (2) in the general presence of students, (3) in a capacity one might reasonably view as official.”

3 Id. at 827 (quoting Johnson, 658 F.3d at 968). Second, the Ninth Circuit said that teachers speak

4 as teachers when their speech “‘owes its existence’ to [the teacher’s] position as a teacher”—i.e.,

5 when an ordinary citizen could not have engaged in the same speech. Id. (quoting Johnson, 658

6 F.3d at 966). Third, the Ninth Circuit held that the mere fact that a teacher spoke in contravention

7 to their supervisor’s orders does not transform the teacher’s speech into citizen speech. Id. at

8 828. “If it [did],” the Ninth Circuit reasoned, “there would be no need for the Garcettii analysis

9 because every First Amendment case in the employment context involves some degree of

10 employer disagreement with the expressive conduct.” Id.

11 When applied to this case, these principles compel the conclusion that Plaintiff spoke to

12 his patients as a neurosurgeon, not a citizen. To begin with, Plaintiff spoke to his patients at his

13 place of work, to those ordinarily considered to be his clients, and in a capacity that one would

14 reasonably view as official. See Kennedy, 869 F.3d at 827–28 (holding football coach spoke as a

15 teacher when he knelt and prayed on the fifty-yard line immediately after games while in view of

16 students and parents); Johnson, 658 F.3d at 968 (concluding math teacher spoke as a teacher

17 when he posted banners in his classroom with religious messages); (Dkt. Nos. 14-25 at 3, 14-27

18 at 2–3, 14-28 at 2–3). In addition, Plaintiff’s speech “‘owed its existence’ to his position as a

19 [neurosurgeon]” because his position gave him “special access” to his patients that an ordinary

20 citizen would not have. See Kennedy, 869 F.3d at 827 (quoting Johnson, 658 F.3d at 966).

21 Finally, Plaintiff’s speech is not transformed into citizen speech merely because it violated

22 Evergreen’s co-management guidelines. See id. at 828. Plaintiff was still doing his job. He was

23 just doing it in a way that violated Evergreen’s policies.

24 Plaintiff appears to argue that even if he spoke as a physician, he has a “right as a

25 physician to freely counsel his own patients.” (Dkt No. 95 at 23.) But the case Plaintiff cites for

26 that proposition—Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)—is wholly inapplicable. In

1 Conant, the Ninth Circuit held that the federal government violated the First Amendment when it

2 investigated doctors and initiated proceedings against them because they recommended the use

3 of marijuana. See 309 F.3d at 637–38. Conant therefore involved the federal government

4 regulating physicians in its capacity as a sovereign. Here, however, Evergreen took action

5 against Plaintiff as his employer. “[W]here the government acts as both sovereign and

6 employer . . . [,] the [Supreme] Court applies a distinct Pickering-based analysis that

7 ‘reconcile[s] the employee’s right to engage in speech and the government employer’s right to

8 protect its own legitimate interests in performing its mission.” Johnson, 658 F.3d at 961 (quoting

9 City of San Diego v. Roe, 543 U.S. 77, 80 (2004)) (citing Garcetti, 547 U.S. at 417–19;

10 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)). That analysis

11 gives government employers the ability to restrict employee speech without judicial interference.

12 See Garcetti, 547 U.S. at 418–19 (“Government employers, like private employers, need a

13 significant degree of control over their employees’ words and actions; without it, there would be

14 little chance for the efficient provision of public services.”).

15 iii. Conclusion

16 When Plaintiff counseled patients to reject DNR designations or transfers to hospice care,

17 he may well have saved their lives. (See Dkt. No. 14-25 at 3.) However, the question here is not

18 whether Plaintiff gave his patients good advice. The question is whether he gave that advice in

19 his capacity as a doctor or a citizen. The answer to that question is inescapable: Plaintiff spoke to

20 his patients as a doctor. Consequently, Plaintiff’s speech was unprotected by the First

21 Amendment, and Evergreen had the right to restrict his speech as it saw fit. Garcetti, 547 U.S. at

22 421–22.

23 E. Plaintiff’s § 1985(3) First Amendment Retaliation Claims

24 In a footnote, Defendant argues that “[b]ecause Plaintiff’s § 1985 claims are derivative of

25 his § 1983 claims, if Plaintiff’s § 1983 claims are dismissed, his § 1985 claims fail.” (Dkt. No.

26 80 at 16 n.9) (citing Pennick v. Chestermani, Case No. C18-5331-RJB-DWC, Dkt. No. 40 at 14

1 (W.D. Wash. 2019)). The use of footnotes to advance substantive arguments is highly

2 discouraged. See Glassybaby, LLC v. Provide Gifts, Inc., Case No. C11-0380-MJP, Dkt. No. 58

3 at 7 (W.D. Wash. 2011). That said, Defendants are correct that if Plaintiff’s speech is

4 unprotected under § 1983, then Defendants are not liable under § 1985(3) for conspiring to

5 retaliate against Plaintiff for making that speech. See Caldeira v. County of Kauai, 866 F.2d

6 1175, 1182 (9th Cir. 1989) (“[T]he absence of a section 1983 deprivation of rights precludes a

7 section 1985 conspiracy claim predicated on the same allegations.”).

8 III. CONCLUSION

9 For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’

10 motion for summary judgment (Dkt. No. 80). The Court GRANTS Defendants’ motion as to

11 Plaintiff’s §§ 1983 and 1985(3) First Amendment retaliation claims. The Court DENIES

12 Defendants’ motion as to Plaintiff’s §§ 1983 and 1985(3) procedural due process claims. The

13 Court also GRANTS Plaintiff’s motion to supplement the summary judgment record (Dkt. No.

14 102).

15 DATED this 21st day of January 2020.

A

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John C. Coughenour

19 UNITED STATES DISTRICT JUDGE

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