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Aus v. Salt Lake County

United States District Court, D. Utah

July 10, 2019

SALT LAKE COUNTY, JAMES WINDER, ROSIE RIVERA, WELLCON, INC., and John and Jane Does 1-10, Defendants.


          Jill N. Parrish United States District Court Judge

         I. BACKGROUND

         On the evening of November 16, 2013, ten days after being processed into the Salt Lake County Jail (the “Jail”), Jeremy Aus experienced multiple seizures and died in his bed. This action followed, brought by Mr. Aus' estate; his mother, Janis Aus; and his brother, Jason Aus. The operative second amended complaint asserts two causes of action: (1) a civil rights claim under 42 U.S.C. § 1983 against Salt Lake County (the “County”), the County's then-Sheriff, James Winder (in his individual and official[1] capacities), and Wellcon, Inc. (“Wellcon”), a private corporation that contracts with the County to provide healthcare practitioners for purposes of delivering healthcare services to the Jail's inmate population; and (2) a state law medical malpractice claim against Wellcon.[2]

         Before the court are five motions filed by defendants: (1) a motion for summary judgment on plaintiffs' § 1983 claim filed by the County, Mr. Winder, Ms. Rivera, and Wellcon (collectively, the “§ 1983 Defendants”); (2) a motion in limine filed by the § 1983 Defendants; (3) a motion in limine and motion for summary judgment on plaintiffs' medical malpractice claim filed by Wellcon; (4) a motion to strike certain exhibits appended to plaintiffs' opposition to the § 1983 Defendants' motion for summary judgment filed by the § 1983 Defendants; and (5) a motion to strike an affidavit appended to plaintiffs' opposition to Wellcon's motion in limine filed by Wellcon.

         A. Statement of Facts[3]

         1. Jeremy Aus' Arrest and Processing into the Jail

         Jeremy Aus was arrested on November 6, 2013 after a physical altercation between Mr. Aus and his brother-both intoxicated-in which Mr. Aus apparently inflicted knife and/or sword wounds on his brother. Mr. Aus was charged with aggravated assault, and processed into the Jail. As is the Jail's practice at booking, he underwent a comprehensive nurse examination. As part of that procedure, Mr. Aus was asked to list his current prescription medications. He reported that he was prescribed klonopin[4] for anxiety, atenolol and triamterene for hypertension (high blood pressure), and the muscle relaxer tizanidine for back pain. Jail staff subsequently verified these prescriptions with Mr. Aus' pharmacy.

         The Jail's practice is to route an inmate's verified prescriptions to two different prescribers to determine whether they should be ordered while the inmate is detained at the Jail. Those prescriptions deemed medical are presented to a medical doctor for review, and those prescriptions deemed mental health are presented to a mental health practitioner. Pursuant to that policy, Mr. Aus' hypertension medications were presented to and orally ordered by a medical doctor. Mr. Aus' klonopin prescription was emailed to a mental health prescriber, Paula Braun, an Advanced Practice Registered Nurse (“APRN”). It is unclear whether Ms. Braun knew, at that time, that Mr. Aus had been prescribed klonopin for nearly ten years;[5] she never saw or spoke to him. From the email she received, however, she knew that Mr. Aus was prescribed 2-milligrams of klonopin to be taken twice daily for a total of 4-milligrams per day, an uncommonly high dosage. The email also notified Ms. Braun that the nursing staff had instituted blood pressure checks, as well as an order to measure-twice-daily for five days-Mr. Aus' score on the Clinical Institute Withdrawal Assessment for Alcohol (“CIWA”) scale. The CIWA scale, as its name suggests, detects alcohol withdrawal symptoms and provides a tool-in the form of an aggregate score-to guide the medical treatment of a patient detoxifying from an alcohol use disorder. Ms. Braun declined to order the klonopin prescription, and she placed no order to taper (the process of weaning a patient off of a substance on which they are dependent by gradual reductions in dosage) the klonopin or any other benzodiazepine. Instead, Ms. Braun ordered that Mr. Aus be permitted to request mental health consultation on an as-needed basis.[6]

         2. Benzodiazepine Withdrawal Syndrome

         A patient can develop a physiological dependence on benzodiazepines in as little as 3-4 weeks of continuous use of a low dose. After a dependent patient substantially decreases or ceases the use of benzodiazepines entirely, they will experience withdrawal syndrome.

This withdrawal syndrome is characterized by two or more symptoms . . . that include autonomic hyperactivity (e.g., increases in heart rate, respiratory rate, blood pressure, or body temperature, along with sweating); a tremor of the hands; insomnia; nausea, sometimes accompanied by vomiting; anxiety; and psychomotor agitation. A grand mal seizure may occur in perhaps as many as 20%-30% of individuals undergoing untreated withdrawal from these substances. . . . The withdrawal syndrome produced . . . may be characterized by the development of a delirium that can be life-threatening.

         Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (“DSM-V”) (ECF No. 101-8 at 4, 5). The severity of benzodiazepine withdrawal syndrome depends on the doses consumed and the length of time the substance has been taken. “Doses of approximately 40mg of diazepam (or its equivalent) daily are more likely to produce clinically relevant withdrawal symptoms, and even higher doses (e.g., 100mg of diazepam) are more likely to be followed by withdrawal seizures or delirium.” Id. “The longer the substance has been taken and the higher the dosages used, the more likely it is that there will be severe withdrawal.” DSM-V (ECF No. 101-8 at 5).

         Mr. Aus was prescribed a daily clonazepam dose equivalent to 80 milligrams of diazepam (ECF No. 94-17 at 12), and had been taking clonazepam for nearly a decade.

         The onset and duration of benzodiazepine withdrawal syndrome is determined, in large part, by the half-life of the particular medication prescribed. “For substances with longer half-lives . . . symptoms may not develop for more than 1 week, peak in intensity during the second week, and decrease markedly during the third or fourth week.” DSM-V (ECF No. 101-8 at 5).

         There is no widely accepted, validated detection scale for benzodiazepine withdrawal. But “[b]ecause of the high risk of delirium, seizures, and death, benzodiazepine withdrawal should always be treated.” (ECF No. 101-10 at 15). “A taper is necessary for safe and successful [benzodiazepine] discontinuation. Weaning from benzodiazepines should be done systematically with a full appreciation of the potentially-fatal consequences of abrupt cessation.” (ECF No. 94-17 at 12).

The tapering schedule will depend on several factors, including the setting in which the inmate is treated and the presence of co-morbid medical or psychiatric conditions. If the inmate is hospitalized, the medication can be tapered by 10% per day. Throughout the tapering schedule, inpatients should continue to be evaluated for withdrawal symptoms every 8 hours. Outpatients should not be tapered any more rapidly than by 10% every three to five days, or 25% per week.

(ECF No. 101-10 at 17).

         Treatment of benzodiazepine withdrawal with beta-blockers (like the atenolol Mr. Aus was prescribed for hypertension both before and during his time at the Jail) is “not routinely recommended. . . . [because t]hey mask the very symptoms that signal an inadequate dosage of the [tapered benzodiazepine], and thereby place the inmate at increased risk for developing severe withdrawal. If the inmate is already on one of these medications for other medical conditions, such as hypertension, increased vigilance is necessary to prevent severe withdrawal symptoms from developing.” (ECF No. 101-10 at 17).

         “Detoxification and withdrawal are best managed by a physician or other medical professional with appropriate training and experience. As a precaution, severe withdrawal syndromes must never be managed outside of a hospital.” (ECF No. 101-16 at 3).

         3. Mr. Aus' Incarceration and Death

          On his second full day in the Jail, November 8, 2013, Mr. Aus submitted a sick call request form, complaining that he was “supposed to be on [klonopin] 2mg twice a day.” (ECF No. 101-7). The following day, a triage nurse assigned to handle the request met with Mr. Aus. He informed her that he had been prescribed klonopin for ten years and that he had not received any since arriving at the Jail two days prior. The triage nurse “educated” Mr. Aus that “klonopin is generally not given here, ” and left him with a worksheet entitled “Tips for Coping with Anxiety.” On November 10, 2013, Jail staff concluded the five-day CIWA and blood pressure monitoring orders entered during Mr. Aus' admission process. On November 13, 2013, Mr. Aus submitted yet another sick call request form, complaining that he was experiencing “all the symptoms on the paper I received.” The following day, a triage nurse again met with Mr. Aus, who informed her that he had only slept for three hours the night prior. The nurse again “educated [Mr. Aus] that klonopin is generally not given here.” (ECF No. 101-7 at 3).

         Just before 8:00 pm on November 16, 2013, Officer William Lawrence spoke with Mr. Aus and his cellmate Justin Bane. Mr. Aus indicated that he had not eaten anything that day, and told Officer Lawrence that he did not feel well. Mr. Bane informed Officer Lawrence that Mr. Aus was not receiving the anxiety medication that he had been taking before coming to the Jail. As Officer Lawrence recounted, “[a]s I am talking to him he appears to be having seizures or muscle spasms and has three while I am talking to him.” (ECF No. 101-2 at 15).

         Roughly seven minutes later, Officer Lawrence called medical staff to Mr. Aus' cell after observing Mr. Aus seizing, drooling, and being held by his cellmate. A nurse arrived and attempted to ask Mr. Aus questions, but elicited no verbal response. Another officer present during this interaction later remarked that Mr. Aus' eyes “appeared to be rolled back and glossy.” After the nurse administered smelling salts Mr. Aus reacted and then rolled over onto his side. The nurse concluded that no further action was necessary after finding that Mr. Aus' vitals were normal; the nurse cleared him to remain in his cell.

         Officer Lawrence, apparently still concerned about what he had observed, called a mental health therapist to examine Mr. Aus. A therapist arrived and again attempted, unsuccessfully, to elicit a verbal response from Mr. Aus. “He just had the same blank stare on his face from when the nurse was in the unit, ” Officer Lawrence recalled. The therapist left and took action to have a mental health practitioner follow-up in the morning because “[the patient] was asleep.” Around 10:00 pm, Mr. Bane used the intercom in his cell to inform Jail staff that Mr. Aus was not breathing and that he could not find a pulse. Multiple officers responded and performed CPR on Mr. Aus. Shortly after being loaded into an ambulance, he was declared deceased.

         Dr. Grey, the state medical examiner who conducted Mr. Aus' autopsy, concluded that Mr. Aus died from acute hydrocephalus (blockage of normal circulation of cerebrospinal fluid in the brain) arising from a cavum vergae cyst (a congenital fluid filled cyst in the ventricular system of the brain). An autopsy is not capable of revealing the existence of severe benzodiazepine withdrawal syndrome. Dr. Grey could not recall whether he reviewed the Jail's medical records during the course of the cause of death investigation. It is unclear whether the records, even if Dr. Grey reviewed them, would have revealed that the Jail had abruptly discontinued Mr. Aus' ten-year, 4mg/day klonopin regimen ten days prior to his seizures and death.


         The § 1983 Defendants move for summary judgment, arguing (1) that they are entitled to qualified immunity; and (2) that plaintiffs have failed to establish the elements necessary to obtain municipal liability. After setting forth the summary judgment standard, the court addresses each argument in turn.

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). To do so, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         When the nonmoving party bears the burden of proof at trial on a dispositive issue, that party must “go beyond the pleadings” and designate specific facts so as to “make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Liberty Lobby, Inc., 477 U.S. at 249. On summary judgment, “courts are required to view the facts and draw reasonable inferences” in the light most favorable to the non-movant. Scott v. Harris, 550 U.S. 372, 378 (2007).

         A. Qualified Immunity

         “Qualified immunity protects government officials from suit [in their individual capacity] for civil damages if their conduct does not violate clearly established statutory or constitutional rights.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (citing Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)). “When a defendant raises a qualified immunity defense, the court must dismiss the action unless the plaintiff shows that (1) the defendant violated a statutory or constitutional right, and (2) the right was clearly established at the time of the violation.” Id. Thus, once a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff to make the requisite showing to defeat it.

         The parties' briefing on qualified immunity contains erroneous statements of law, factual errors, and overlooks potentially dispositive issues. First, defendants[7]-Mr. Winder, Ms. Rivera, Salt Lake County, and Wellcon[8]-assert that they are entitled to qualified immunity. But as a municipality, the County is not entitled to any sort of immunity from § 1983 liability. See Owen v. City of Independence, Mo., 445 U.S. 622, 638 (1980) (“[T]here is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify [extending] qualified immunity [to municipalities].”). Thus, the County's qualified immunity defense fails at the outset.

         Second, despite the fact that plaintiffs' complaint asserts a § 1983 claim against Mr. Winder “in both his official and individual capacity”-the latter of which would entitle him to raise a qualified immunity defense-plaintiffs now unambiguously represent that they “have not sued an individual officer, ” and that, as a result, “[q]ualified immunity . . . need not be addressed.” (ECF No. 101 at 35). This is highly confusing, and it remains unclear whether plaintiffs are unaware that they have in fact sued an individual officer, or whether they merely intend to now withdraw the individual-capacity claim. Regardless, in the face of Mr. Winder's qualified immunity defense, plaintiffs have made no attempt to carry their burden to show that Mr. Winder violated a clearly established statutory or constitutional right. See Mayfield, 826 F.3d at 1255 (“When a defendant raises a qualified immunity defense, the court must dismiss the action unless the plaintiff shows that (1) the defendant violated a statutory or constitutional right, and (2) the right was clearly established at the time of the violation.”). Because plaintiffs have not made the necessary showing to defeat Mr. Winder's qualified immunity defense, he is entitled to summary judgment.[9]

         Finally, Wellcon, as a private corporate entity, bears the threshold burden of establishing that it is entitled to assert qualified immunity in the first place. The weight of authority extends the availability of the qualified immunity defense to private employees who are sued under § 1983.[10] See Filarsky v. Delia, 566 U.S. 377, 389 (2012) (“[I]mmunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.”). But whether a private corporate entity can assert qualified immunity is a much more difficult question that has not been addressed by the Supreme Court. And while the Tenth Circuit has held “that there is no bar against a private corporation claiming qualified immunity[, ]” whether or not a private corporation is extended qualified immunity under that court's precedent turns on the entity's ability to establish that the policies underlying qualified immunity are implicated by § 1983 suits against it.[11] See Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1166 (10th Cir. 2005). Because Wellcon missed this issue entirely, the court is without the facts and arguments necessary to determine whether Wellcon is entitled to assert qualified immunity and force plaintiffs to make their two-part showing to defeat the defense. As a result, Wellcon is not entitled to summary judgment on grounds of qualified immunity.

         In sum, while Mr. Winder is entitled to summary judgment on qualified immunity grounds, the qualified immunity defense is not available to the County, and Wellcon has failed to establish that it may assert qualified immunity in the first instance.

         B. Monell Liability for violations of the Eighth and Fourteenth Amendments

         The Supreme Court holds that municipalities are “persons” who may be sued under § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). But “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be liable under § 1983 on a respondeat superior theory.” Id. at 691. It is the Court's rejection of respondeat superior municipal liability that animates the unique requirements of so-called Monell liability. The Tenth Circuit has distilled the relevant case law into a three-element framework: to recover in a § 1983 action against a municipality, a plaintiff must establish “(1) [an] official policy or custom, (2) causation, and (3) state of mind.” See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013).

         In the Tenth Circuit, the municipal liability principles announced by Monell and its progeny apply equally to a private entity sued under § 1983. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003). Thus, whether the actionable conduct is that of the County or Wellcon (collectively, the “Entity Defendants”), plaintiffs must adduce (1) a policy or custom fairly attributable to the Entity Defendants; that (2) was the moving force behind Mr. Aus' death; and (3) was instituted or maintained with deliberate indifference as to its known or obvious consequences. See Schneider, 717 F.3d at 770-71. The court addresses each element in turn.

         1. Policy or Custom

          “[M]unicipal liability under § 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Thus, “[t]he ‘official policy' requirement [is] intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Id. at 479.

A municipal policy or custom may take the form of (1) “a formal regulation or policy statement”; (2) an informal custom “amoun[ting] to ‘a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law'”; (3) “the decisions of employees with final policymaking authority”; (4) “the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval”; or (5) the “failure to adequately train or supervise employees, so long as that failure results from ‘deliberate indifference' to the injuries that may be caused.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir.2010) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) and City of Canton v. Harris, 489 U.S. 378, 388-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)) (internal quotation marks omitted).

Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (alteration in original).

         Plaintiffs' municipal liability arguments are confusing, often combining statements of law from several of these paths to establishing municipal liability. In their clearest articulation of their theory, however, plaintiffs argue that (1) “Defendants have a formal regulation (or at least a widespread practice) of depriving inmates of their verified benzodiazepine prescriptions”; and that (2) “Defendants have failed to implement a benzodiazepine withdrawal protocol that monitors inmates during peak withdrawal.” Thus, plaintiffs allege the existence of both an express formal policy as well as informal customs of action or inaction so widespread as to have the force of law.

         Plaintiffs' formal policy theory fails because they have adduced no “policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the Entity Defendants. See Monell, 436 U.S. at 690. The County's written policy[12] that most closely bears on plaintiffs' theory of municipal liability is actually contrary to what plaintiffs purport the County's policy to be, declaring that: “Patients entering the facility on verified prescription medications continue to receive the medications in a timely fashion as prescribed; an acceptable alternative medication may be substituted as clinically indicated. The medications will be verified and communicated to the provider for disposition.” (ECF No. 101-2 at 23). Thus, plaintiffs cannot establish an express policy of withholding verified benzodiazepine prescriptions from inmates.

         The record is sufficient, however, to support a finding that the Entity Defendants have imposed several unwritten practices relevant to Mr. Aus' injury.[13] Some of these customs are borne out by their appearance throughout the record while the existence of others is confirmed by the testimony of Dr. Wilcox, Wellcon's founder and sole owner who “oversees the entirety of the prescriptive practice within the jail.”[14]

         First, every Wellcon or County employee deposed displayed awareness of a custom that, very generally, designates benzodiazepines as disfavored medications. Dr. Wilcox testified that benzodiazepines “are just not medically necessary to treat patients in a jail setting.” (ECF No. 101-4 at 57). Ms. Braun testified that “[i]n general, controlled substances are not given or are tapered, and benzodiazepines are a controlled substance.” (ECF No. 101-5 at 45). Indeed, Mr. Aus himself was even informed of this custom during his time at the Jail. After twice complaining of anxiety and informing a triage nurse that he had been on a klonopin regimen for ten years, Mr. Aus was twice informed that “klonopin is generally not given here.” (ECF No. 101-7 at 2, 3).

         The Entity Defendants repeatedly attempt to portray the decision whether to continue, taper, or terminate a benzodiazepine prescription as being driven only by medical necessity; that each clinician exercises her clinical judgment on the basis of an individual patient's presentation. But no nurse or prescriber could provide any purely clinical rationale for the disfavored status of benzodiazepines, whether tapered or otherwise. When pressed about the reasons for the Jail's clinical aversion to benzodiazepines, Dr. Wilcox explained that “benzodiazepines are problematic medications in a custodial environment. . . . [because t]hey are frequently traded inmate to inmate, which can be very problematic.” (ECF No. 101-4 at 71). Whether or not the policy is justified by the practical constraints of the custodial environment, it is clear that there exists an unwritten policy or custom at the Jail[15] that, at minimum, discourages the prescribing of benzodiazepines. In short, a formal policy vesting absolute clinical discretion in prescribers cannot vitiate a finding that the Entity Defendants have imposed clear customs discouraging the prescribing of benzodiazepines.

         But the custom that bears most directly on the alleged Eighth Amendment violation in this case is the inaction that resulted from the Entity Defendants' refusal to acknowledge the well-known dangers attendant to benzodiazepine withdrawal syndrome. Dr. Wilcox must be deemed Wellcon's final policymaker, and his clear expressions of unwritten policy are fairly attributable to Wellcon.[16] City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[O]nly those municipal officials who have ‘final policymaking authority' may by their actions subject the [entity] to § 1983 liability.”).

         There is more than sufficient evidence to establish that the Jail had determined that benzodiazepine withdrawal syndrome is non-lethal and non-medical. Strikingly, Dr. Wilcox confirmed the existence of this policy, declaring that “[w]e don't really consider benzodiazepines to be a lethal withdrawal syndrome.” (ECF No. 101-4 at 58). He further testified that absent extraordinary circumstances in which the treatment of a physical malady requires benzodiazepines, all inmate issues involving that class of drugs-including benzodiazepine withdrawal syndrome-are handled by mental health practitioners to the exclusion of medical doctors. Moreover, it is uncontroverted that the Jail's sole course of treatment for benzodiazepine-dependent inmates is referral to mental health practitioners for a mental health assessment. There is no established protocol-written or unwritten-regarding the monitoring or medical treatment of benzodiazepine withdrawal syndrome.

         Further, as evidence that the Entity Defendants have selected “a course of action . . . from among various alternatives[, ]” the Entity Defendants have a policy of instituting a withdrawal-monitoring regimen for opioid-dependent patients-a condition not generally considered to be life-threatening-while imposing no standard practice for benzodiazepine-dependent patients. See Pembaur, 475 U.S. at 483. Instead, Wellcon's policy is to refer patients who are dependent only on benzodiazepines-to the exclusion of alcohol and opioids-to the Jail's mental health practitioners, ostensibly because of Wellcon's position that benzodiazepine withdrawal is not a medical concern. (ECF No. 101-4 at 59 (“The benzodiazepine withdrawal patients are referred to . . . mental health clinicians for assessment.”)). Thus, while opioid withdrawal and alcohol withdrawal are deemed medical issues by Wellcon that are suitable for treatment and/or monitoring by medical doctors, benzodiazepine withdrawal is considered to be a mental health issue. In short, the evidence establishes that (1) the Entity Defendants have withdrawal monitoring/treatment protocols for other substances-including substances that do not, on their own, produce life-threatening withdrawal symptoms-but have elected not to create the same for benzodiazepines; and (2) the Entity Defendants have a policy of treating benzodiazepine withdrawal syndrome as a mental health matter. Thus, the summary judgment record is sufficient to support the conclusion that the Entity Defendants have unwritten customs and practices with respect to benzodiazepine withdrawal that are fairly attributable to the Entity Defendants by virtue of (1) testimony establishing the existence of unwritten customs by Wellcon's final policymaker; and (2) evidence of the widespread nature of the customs.

         2. Causation

         Having identified customs attributable to the Entity Defendants, plaintiffs must establish that those customs were the “moving force” behind the deprivation of Mr. Aus' Eighth Amendment rights. Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997) (“[A] plaintiff . . . must demonstrate a direct causal link between the [entities'] action and the deprivation of federal rights.”).

         In cases where a policy or custom is itself unconstitutional-for example, when a city council, without due process, terminates a citizen's employment in which she had a protected property interest-the causation inquiry is simple. But when a plaintiff argues that a municipal policy or custom led to a constitutional injury, a plaintiff must present evidence from ...

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