United States District Court, D. Utah
JASON AUS, JANIS AUS, and the ESTATE of JEREMY AUS, Plaintiffs,
SALT LAKE COUNTY, JAMES WINDER, ROSIE RIVERA, WELLCON, INC., and John and Jane Does 1-10, Defendants.
MEMORANDUM DECISION AND ORDER
N. Parrish United States District Court Judge
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 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.
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.
Statement of Facts
Jeremy Aus' Arrest and Processing into the Jail
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 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.
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; 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
Benzodiazepine Withdrawal Syndrome
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.
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).
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.
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).
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).
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).
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).
Mr. Aus' Incarceration and Death
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).
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
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.
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.
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' MOTION FOR SUMMARY
§ 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.
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).
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).
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.
parties' briefing on qualified immunity contains
erroneous statements of law, factual errors, and overlooks
potentially dispositive issues. First,
defendants-Mr. Winder, Ms. Rivera, Salt Lake County,
and Wellcon-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
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
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. 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. 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.
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.
Monell Liability for violations of the Eighth and
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).
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.
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
Bryson v. City of Okla. City, 627 F.3d 784, 788
(10th Cir. 2010) (alteration in original).
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.
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 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
record is sufficient, however, to support a finding that the
Entity Defendants have imposed several unwritten practices
relevant to Mr. Aus' injury. 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.”
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).
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 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.
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. 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.”).
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.
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.
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
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