Ronald Edward OYENIK, Plaintiff-Appellant, v. CORIZON HEALTH INCORPORATED, Healthcare Provider at ASPC Florence-South Unit, Defendant-Appellee.
No. 15-16850
United States Court of Appeals, Ninth Circuit
June 19, 2017
2017 WL 2628284
e. SUPPRB contends that the district court erroneously ruled that a permit to construct a ski resort cannot be approved unless the Forest Plans have expressly set aside lands for such a development. Even assuming a requirement of that nature would be contrary to law, SUPPRB has mischaracterized the district court‘s ruling. The district court assessed each inconsistency identified by the Forest Service; it did not rely on a conclusion that a Forest Plan must allocate lands for new development before the Forest Service may approve a development permit. In any case, we look to the agency‘s decision, not the district court‘s decision, and consider only those rationales that the agency itself gave to support its denial. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947).
f. Finally, SUPPRB contends that the Forest Service acted arbitrarily and capriciously in denying its application when the agency had previously endorsed the construction of a ski resort at Lolo Peak. This argument fails for at least three reasons. First, it mischaracterizes the agency‘s views, which the record shows were mixed. While the agency initially noted that Lolo Peak could potentially make for a national-class ski resort, it also identified the drawbacks of siting a resort there, called for additional study of the area, and eventually took a neutral position on the subject. Second, the Forest Service‘s denial of SUPPRB‘s application did not foreclose the possibility of any ski resort, but instead rejected SUPPRB‘s proposal because the agency found that the proposal was inconsistent with the Forest Plans. Third, an agency‘s change in position alone is not a reason to reverse the agency. As a result, even if the Forest Service had consistently endorsed the concept of building a resort at Lolo Peak, it would have been free to change its view, as long as its “new policy is permissible under the statute, . . . there are good reasons for it, and . . . the agency believes it to be better.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009).
AFFIRMED.
Rawlinson, Circuit Judge, concurring:
I concur in the result.
Joseph Scott Conlon, Richard Harris Goldberg, Renaud Cook Drury Mesaros, PA, Phoenix, AZ, for Defendant-Appellee
Before: THOMAS, Chief Judge, and FERNANDEZ and MURGUIA, Circuit Judges.
MEMORANDUM**
Ronald Edward Oyenik (“Oyenik“) appeals the district court‘s grant of summary judgment to Corizon Health, Inc. (“Corizon“). We have jurisdiction pursuant to
The Eighth Amendment to the Constitution prohibits the infliction of “cruel and unusual punishments.” By enacting
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court made clear that “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government‘s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. 2018. In other words, “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691, 98 S.Ct. 2018. Because respondeat superior is
Assuming, without deciding, that Monell applies in this context,1 Oyenik must show that “(1) [Corizon] acted under color of state law, and (2) if a constitutional violation occurred, the violation was caused by an official policy or custom of [Corizon].” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012).
Oyenik is suing Corizon, a corporation contracted by the State of Arizona to provide medical treatment to state prisoners. Such a function is “fairly attributable to the State” and can therefore give rise to
As for the second requirement, the district court concluded that Oyenik had raised triable issues of fact with respect to his serious medical need, Corizon‘s deliberate indifference to that need, and the harm caused by that indifference—in other words, a constitutional violation occurred. But the district court granted summary judgment to Corizon because “Oyenik [did] not present evidence of a Corizon policy or practice that demonstrates deliberate indifference,” and “[t]here [was] no evidence of a pattern of similar situations that show or suggest Corizon regularly rejected consultation requests under a pretext of allegedly insufficient information.”
“Proof of random acts or isolated events is insufficient to establish custom,” Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995), and “[l]iability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy,” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). While one or two incidents are insufficient to establish a custom or policy, see Davis v. City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir. 1989); Meehan v. Cty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988), we have not established what number of similar incidents would be sufficient to constitute a custom or policy.
Oyenik has shown at least a dozen instances of Corizon denying or delaying consultations, biopsies, and radiation treatment for his prostate cancer over the course of almost a year. There is no case law indicating that a custom cannot be inferred from a pattern of behavior toward a single individual, and a reasonable jury may conclude that such delay tactics
Oyenik tendered sufficient facts to survive summary judgment on the theory that Corizon had a custom of deliberate indifference to his serious medical needs. The district court erred in granting summary judgment to Corizon.
REVERSED and REMANDED.