Harrelson v. Dupnik (970 F. Supp. 2d 953, 2013)

ORDER

FRANK R. ZAPATA, Senior District Judge.

Pending before the Court is a Report and Recommendation issued by Magistrate Judge Estrada. In his Report and Recommendation, Magistrate Judge Estrada recommends denying in part and granting in part Defendants’ motions for summary judgment. As the Court finds that the Report and Recommendation appropriately resolved the motions for summary judgment, the objections are denied.

Accordingly, IT IS HEREBY ORDERED as follows:

(1) Magistrate Judge Estrada’s Report and Recommendation (Doc. 131) is accepted and adopted.

(2) The motions for summary judgment (Docs. 100, 105) are denied in part and granted in part as reflected in the Report and Recommendation.

(3) The parties shall file a proposed Joint Pretrial Order on or before 9/27/13, which shall include, but not be limited to, that prescribed in the form of Joint Pretrial Order attached. As pretrial motions remain to be resolved as the Court expects that the parties will file motions in limine, this case is referred back to the Magistrate Judge to issue a Report and Recommendation as to any motions in limine (or other pretrial motions). Motions in limine shall be filed no later than the date of filing the proposed Joint Pretrial Order. Responses to motions in limine are due 14 days after the filing of the motion. Unless otherwise ordered by the Magistrate Judge, no replies are permitted and motions in limine and responses thereto shall not exceed five pages. After the Court receives the Report and Recommendation, any objections, and issues an Order as to the Report and Recommendation, the Court will withdraw the reference to the Magistrate Judge and issue a final pretrial Order setting dates for trial, the pretrial conference, and the filing of proposed jury instructions, voir dire and verdict forms.

REPORT AND RECOMMENDATION

HÉCTOR C. ESTRADA, United States Magistrate Judge.

Pending before the Court are: (1) the Defendants Clarence Dupnik and Pima County’s (hereinafter “County Defendants”) Motion for Summary Judgment (Doc. 100) (hereinafter “MSJ”) and (2) Defendants Conmed Healthcare Management Inc., and Conmed Inc.’s (hereinafter “Con-med Defendants”) and Defendants Steven R. Galper, M.D., Roger Bishop, M.D., Karen Yashar, R.N., and K. Richey, RN.’s (hereinafter “Individual Conmed Defendants”) Motion for Partial Summary Judgment . (Doc. 105) (hereinafter “MPSJ”). The motions came on for oral argument on June 19, 2013.

Pursuant to the Rules of Practice of this Court, this matter was referred to undersigned for a Report and Recommendation. (Doc. 10).

For reasons stated herein, the Magistrate Judge recommends that (1) Defendant K. Richey be dismissed from this action; (2) the Pima County Defendants’ MSJ be granted in part and denied in part and (3) the Conmed and Employee Defendants’ MPSJ be granted in part and denied in part.

I.Factual and Procedural Background

This case arises from the death of M.J.H., á 17 year old juvenile remanded to the custody of Defendant Dupnik in the juvenile housing unit at the Pima County Adult Detention Complex (hereinafter “PCADC”). Plaintiff Jacquelyn Harrelson, (hereinafter “Plaintiff’) individually and on behalf of the statutory beneficiaries of M.J.H., and Estate of M.J.H., filed an Amended Complaint in state court which Defendants removed to this Court. (Doc. 1). Plaintiff filed a SAC naming the following Defendants: (1) Clarence W. Dupnik, Sheriff of Pima County; (2) Pima County, a political subdivision of the State of Arizona; (3) Conmed Healthcare Management, Inc.; (4) Conmed, Inc., doing business as Conmed Healthcare Management; (5) Steven R. Galper, M.D.; (6) Roger R. Bishop, M.D.; (7)' Karen Yashar, R.N.; and (8) K. Richey, R.N. (Doc. 39). Plaintiff alleges five counts in her SAC: Count One alleges that the Pima County Defendants committed negligence and/or gross negligence for breach of duty to provide care, custody and control regarding MJ.H.’s incarceration at the Pima County Jail; Count Two alleges that the Conmed Defendants committed negligence and/or gross negligence; Count Three alleges that all Defendants committed wrongful death pursuant to A.R.S. § 12-611 et seq.; Count Four alleges, pursuant to 42 U.S.C. § 1983, that Defendant Dupnik in his role as official policy maker for the PCADC, used isolation in violation of the Eighth Amendment proscription against cruel and unusual punishment and in violation of ■ the Fourteenth Amendment’s guarantee of due process of law; and Count Five alleges, pursuant to 42 U.S.C. § 1983, that Conmed and Employees were deliberately indifferent to M.J.BL’s serious medical needs, in violation of the Eighth Amendment.

Defendant Conmed Healthcare Management has contracted with Pima County to provide medical and mental health care at PCADC. (Plaintiffs Separate Statement of Facts (Doc 116, pp. 40-76) (hereinafter “PSSOF”) ¶ 9; see also id. at ¶¶ 29-30). Defendant Conmed employs the following Defendants: Dr. Bishop, who completed his residency in family practice and was Conmed’s Medical Director in 2010; Dr. Galper, who completed a residency in neurology and psychiatry; and Karen Yashar, who is an R.N. with a bachelor’s degree in nursing. (Conmed and Employee Defendants’ Statement of Facts (Doc. 106) (hereinafter “CESOF”) ¶¶ 1-2, 4, 7, 9-10). At all relevant times, the medical and mental health care of inmates housed at PCADC was provided by Conmed and its employees. (County Defendants’ Statement of Facts (Doc. 102) (hereinafter “CDSOF”), ¶ 3).

On April 1, 2010, M.J.H. was booked into PCADC and housed in the juvenile pod with instructions to keep him separate from another inmate, “C.N.” (PSSOF, ¶ 63). On April 20, 2010, C.N. assaulted M.J.H. after a corrections officer “failed to notice the keep-separate order” and C.N. and M. J.H. were together in the recreation yard at the same time. (CDSOF, Declaration of Lt. Meister, ¶¶ 17, 20). On April 22, 2010, after deciding to press charges against C.N., M.J.H. reported that he feared for his safety and was afraid he would get “jumped” while in the dayroom and as a result, he was placed on protective custody status, also known as Administrative Segregation or ASI (“ASI”), because “PCADC policies and procedures provide that juvenile inmates are to be placed on protective custody ... status ... where a juvenile reports threats of physical harm from other inmates.” (Id. at ¶¶ 10, 22, 23, 24; see also PSSOF, ¶ 70 & PSSOF, Exh. 1, p. IR75). A juvenile on ASI participates in school, the Level Advancement Program, and receives mail, television, dayroom, outdoor recreation, phone calls, visitation, and commissary privileges. (Id. at ¶¶ 12-13).

At intake at PCADC on April 1, 2010, M.J.H. had reported that he: had been diagnosed as bipolar and with depression a year and one-half prior while in a detention facility in California; had taken Depakote in the past for bipolar disorder; and had attempted suicide four years prior. (CESOF, Exh. 9, pp. 53, 231-234). On April 2, 2010, M.J.H. was seen by Jason Zantanos, mental health staff, who found that M.J.H. suffered from situational depression. (CESOF, ¶25). On April 7, 2010, in response to M.J.H.’s request for sleeping medication, PA Barry McMillon saw M.J.H., assessed “poor sleep”, and prescribed Trazadone. (CESOF, Exh. 9, pp. 51, 229). On April 21, 2010, Licensed Associate Counselor (hereinafter “LAC”) Raiehelle Sutton saw M.J.H., although the reason for such appointment is unclear: the Conmed and Employee Defendants state it was for a sick call complaining of lack of sleep; Plaintiff states M.J.H. had complained about anxiety attacks, depression and insomnia. (CESOF, Exh. 9, p. 225 & Exh. 5, pp. 55-56, 58; PSSOF, Exh.

3, p. 4209). LAC Sutton did not perform a Ml psychiatric assessment, diagnosed insomnia and referred M.J.H. to the prescriber who had previously prescribed Trazadone. (CESOF, Exh. 5, pp. 56, 58). During M-J.H.’s incarceration, he received Trazadone for either seven or ten days. (PSSOF, Exh. 13, p. 98).

On April 26, 2010, M.J.H. was seen by LAC Brent Gunderson. (CESOF, Exh. 8, pp. 6, 30, 39). LAC Gunderson testified that M. J.H. told him:

he had been seeing demons, then the demons had gone away. He saw spots on the wall where the demons’ eyes had been before.... [H]e was on PC status ..., he spends roughly 23 hours a day locked away.

He acknowledged the stress that he feels. That’s certainly something that he told me specifically. He was feeling as though he could go insane, he told me that. He said that he feels extremely lucky if he can fall asleep before breakfast, so all of that is what he told-me. And that he was sleeping very little. He was experiencing some hallucinations because of lack of sleep.

Then he described a dream that he had where — the dream itself is where he had been seeing the demons____But then he said that he was still seeing spots on the walls even after the dream, after he woke up, where the demons’ eyes were.

(Id. at pp. 39-40). According to LAC Gunderson, while M.J.H.’s statements could have indicated “some psychotic symptoms”, post-traumatic stress disorder (hereinafter “PTSD”), or acute stress syndrome, he believed that stress was the cause of M.J.H’s distress. (Id. at p. 48). M.J.H. requested a psychiatric evaluation. (CESOF, Exh. 9, p. 217; PSSOF, Exhu 15, pp. 43-44). PCADC psychologist Andrew Stropko, Ph.D., agreed with LCA Gunderson’s assessment, although psychosis, bipolar disorder and substance abuse were in the differential, sleep seemed to be the most important issue. (CESOF, ¶ 40). According to Dr. Stropko, the manner in which M.J.H. reported his dream and symptoms in terms of organization and thought process “mitigate[d] against psychosis at this point.” (CESOF, Exh. 6, p. 42). 'Plaintiffs expert, Laura Don, a psychiatrist certified by the American Board of Psychiatry and Neurology disagrees, opining that by' April 26, 2010, MJ.H.’s anxiety and depression had progressed to psychosis with visual hallucinations and paranoid delusions. (PSSOF, Exh. 3, pp. 4207, 4212).

On May 4, 2010, M.J.H.’s request to be removed from ASI status was denied. (PSSOF, Exh. 1, at p. IR81).' On that same date, PA McMillon saw M.J.H. and arranged for correctional officers to observe MJ.H.’s sleep pattern for three days.. (CESOF, ¶¶43, 44 &.Exh. 9, p. 147). The observation was initiated but not completed. (CESOF, ¶ 45).

On May 6, 2010, Sergeant Ski requested “psych to see inmate as inmate is extremely agitated and has PTSD regarding an incident here [at] the jail....” (CESOF, Exh., 9, p. 215; see also PSSOF, Exh. 7, p. 34). Defense expert Jack Potts, M.D., testified that on May 6, 2010 M.J.H. claimed he had been on Depakote a year ago in California, and requested to have his mood stabilized and to have sleep medication. (PSSOF, Exh. 7, p. 34) The reporting R.N. indicated that M.J.H. stated he was “feeling very agitated [and] increasingly depressed [and] isolated,” (id.), and assessed M.J.H. with PTSD, depression, and anxiety. (Id. at pp. 215-16). A suicide watch was initiated. (See id. at p. 209) A May 7, 2010 record indicates initiation of the five-minute suicide watch, because of “unpredictable, manic-behavior, increasing anxiety.” (PSSOF, Exh. 1, p. IR83). NP Hogan checked on M.J.H. on May 7 and on May 9, 2010, and diagnosed M.J.H. with adjustment disorder with anxiety, but “stabilizing” after a good night’s sleep in the infirmary as of May 9, 2010. (CESOF, Exh. 9, pp. 209, 211). She changed the suicide watch from five to fifteen minutes. (Id. at p. 211). According to NP Hogan, her purpose in seeing M.J.H. during the five-minute suicide watch period was “[t]o evaluate him for a need for meds, as well as the suicide watch itself.” (CESOF, Exh. 4, p. 67). Plaintiff disputes NP Hogan’s testimony because no medication evaluation is documented in the medical record. (Plaintiffs Response to CESOF, ¶ 49). On May 11, 2010, LAC Gunderson found M.J.H. emotionally stable and released him from suicide watch. (CESOF, ¶¶ 53-55). On May 18, 2010, it was reported that M.J.H. was turning in his school work, and LAC Gunderson found M.J.H. did not present as suicidal, but rather appeared mentally and emotionally stable. (CESOF, ¶ 56; PSSOF, ¶ 81).

By May 24, 2010, LCSW Gafner noted that M.J.H. “reads Bible voraciously, fends off verbal barbs from other [inmate] who taunt him about [S]atan”, and appeared “weary” and “pseudo-paranoid”, but stable. (CESOF, Exh. 9, p. 197). By the evening of May 24, Zantanos, noted that M.J.H., who “reads his Bible voraciously ... ”, reported that he had difficulty trusting other inmates and staff, and that another inmate is “being influenced by Satan and is influencing other ...” inmates and correctional staff. (CESOF, Exh. 9, p. 195). Zantanos also noted that M.J.H. informed him that he was not “currently on psych meds and reports his mother does not want him on psych meds.” (Id.). Zantanos “aided [M.J.H.] ... in coping strategies and provided emotional support ...” and planned to follow up the next day. (Id.). At 9:45 p.m., Zantanos saw M.J.H. after correctional staff reported that M.J.H. made statements that he planned to hang himself. (Id. at p. 196). Zantanos determined that M.J.H. was not suicidal, “but rather is desperate to be away from the perceived harassment and ridicule occurring on 1 E.” (Id.). Zantanos spoke to M.J.H. about a rehearing to move to IF, which M.J.H. was eager to seek, but:

it was determined by custody that ... [M.J.H.] should not be attempting to choose his housing.... [Inmate] state[d] ... that if he has to return to IE he will attempt to hang himself.... [Inmate] is quick to decompress [with] support, though initially presents w/ tearfulness and shaking body language reporting “I can’t take it anymore. I can’t stay in there. This is spiritual warfare!”

(Id.). Zantanos determined that M.J.H. was not “psychotic but rather is experiencing a high degree of psychological distress.” (Id.). M.J.H. was again moved to the infirmary and placed on five-minute suicide watch for ongoing support and status indications, and given access to a smock and blanket. (Id.; CESOF, ¶ 59; see also PSSOF, Exh. 1, p.IR 93). Defense expert, Dr. Potts, testified that he did not believe suicide watch was appropriate at this time because the record did not support the belief that M.J.H. was suicidal: “It appears to have been the only alternative available to the mental health folks, but that’s speculative.” (PSSOF, Exh. 7, pp. 43-44). Dr. Potts agreed that the conditions for suicide watch are harsh. (Id. at p. 55).

Plaintiffs expert psychiatrist, Dr. Don, opines that brief periods of mood stabilization were documented (5/10, 5/12, and 5/18/10), however “by 5/24/10 he had deteriorated with clear psychotic and manic symptoms, including suspiciousness, hyperreligiosity (reading the Bible ‘voraciously’), paranoid delusions with a belief that another inmate was influenced by-Satan and that this inmate was trying to control the minds of other inmates and some officers. He was not on psychotropic medications and reported that his mother does not want him to take psychotropic medications .... [Jason Zantanos, MHP, Conmed Healthcare Management]” (PSSOF, Exh. 3, pp. 4211-12 (bracketed text in original)). Dr. Don also noted that “[a]nother therapist, also on 5/24/10, documented the paranoid delusions and noted that he had the suspiciousness of a patient who is paranoid and fearful, yet concluded that he was ‘stable’ and diagnosed him as being ‘pseudo-paranoid.’ [Administrative Segregation Screening George Gafner, LCSW]....” (PSSOF, Exh. 4, pp. 4212 (bracketed text in original)). According to Dr. Don, by May 24, M.J.H. “was floridly psychotic____” (Id. at p. 4212). She states that “pseudo-paranoid” diagnosed by LCSW- Gafner, “is not a conventionally recognized diagnosis, but is clearly an assessment created by the evaluator to suggest malingering. Mr. Harrelson’s reported symptoms, increasingly disorganized thought processes, and his agitated and distressed state, in the context of his past diagnosis with bipolar disorder, provide no basis for a diagnosis of malingering.” (Id.).

The morning of May 25, 2010 at 6:20 а.m., M.J.H. was banging on his cell window and refused to stop. (PSSOF, Exh. 1, p. IR95). At 7:44 a.m., NP Hogan noted M.J.H. was “immersed in a delusion of Satan’s influence on the juvenile pod.” (CESOF, Exh 9, p. 193). • She further noted: “When I met w/ him he refused to speak, but stared with the evil eye look. After ... [I] left ... he began yelling, ‘In the name of Jesus, stop,’ etc.” (Id.). Her assessment was that “[m]uch of his presentation seems behavioral, but it certainly smacks of early Bipolar +/or psychosis .... Appears to sleep adequately, though he was yelling and banging a lot last ... [night about] being put on s[uicide]/w[atch]. Unpredictable and potentially lethal thoughts. Need to keep safe.” (Id.). She continued M.J.H. oh five-minute suicide watch. (Id). At her deposition, NP Hogan testified that on May 25th she diagnosed M.J.H. with adjustment disorder with anxiety because he was new to the adult level jail setting. (CESOF, ¶ 67; CESOF, Exh. 4, pp. 63).’

LAC Sutton wrote on May 25, 2010 at 9:15 a.m. that M.J.H. was “throwing Water out -of his cell and yelling about the devil and hearing things through the wall.” (CESOF, Exh. 9, p. 191). M.J.H. refused to speak to her and instead threw two cups of water at the cell door. (Id). When staff moved M.J.H. to another cell in the infirmary, he “continued with a religious rant and struggled with officials..-.: [M.J.H.] was then put into a restraining chair.” (Id.). LAC Sutton agreed with NP Hogan’s earlier assessment that MJ.H.’s presentation “appears to-be behavioral as evidenced by ... [his] snickering when he believed no one could see his face., I[nmate] has a history of being unpredictable and impulsive.” (Id.). She continued him on five-minute suicide watch. (Id.). At noon, LAC Sutton attempted to speak with M.J.H. again. (CESOF, Exh. 9, p. 192). He was “much calmer ...” but put his arm through the food trap twice. (Id.). He said that “ ‘we have no control’ over him. He then began to talk to the voices telling them to leave him alone.” (Id.). She ended the interview because M.J.H. was becoming more agitated. (Id.). At this point, “it was really hard to tell ...” whether M.J.H’s conduct was behavioral. (CESOF, Exh. 5, p. 72). At her 2012 deposition, LAC Sutton testified that she still believed her May 25, 2010 conclusion was correct:

Because at times it was difficult to make a distinction between what was real and what wasn’t. And what I mean by that is at certain points it was difficult to determine what was being driven just by typical teenage acting out, or were they symptoms of what, he had been diagnosed with, bipolar disorder, rule out psychosis.

(Id. at p. 62). Although some of M.J.H.’s actions on May 25 were consistent with psychosis and would be difficult to sustain over time if a patient was instead malingering, to LAC Sutton’s knowledge, M.J.H. did not continue to decompensate but instead was lucid at times. (Id. at p. 63).

On May 26, 2010, M.J.H. had a video visit with his father and other family members. (PSSOF, Exh. 1, p. H1623). Mr. Harrelson testified that although M.J.H. looked the same physically, “he said a lot of nonsensical things ...” and Mr. Harrelson felt as if M.J.H. were speaking in code and was concerned his son was having mental issues. (PSSOF, Exh. 11, pp. 46-47). Upon seeing the video of the May 26th visit, defense expert Dr. Potts opined that M.J.H. “was psychotic.” (PSSOF, Exh. 7, pp. 10-11). Dr. Potts believed that M.J.H. was exhibiting “some psychotic symptomatology prior to the video ... visitation ...” and that M.J.H.’s “behavior as seen in the latter part of May was significant enough to warrant psychiatric intervention in and of itself without the history.” . (Id. at pp. 31-32). Dr. Potts did not believe that M.J.H. was malingering or feigning; instead, he “believe[s] he was psychotic.” (Id. at p. 95).

On May 26, 2010, M.J.H. remained on suicide watch. ■ (CESOF, Exh. 9, p. 192). LAC Sutton noted that M. J.H. stood at his window, began to constantly knock on the window, took off his smock, and refused food and drink. (Id.). She decided to follow up with a prescriber. (Id.).

On May 27, 2010 LAC Sutton reported that M.J.H., who remained on suicide watch: was rolling his feces in a ball and trying to push it under the cell door; smeared his food on windows spelling “help” backwards so it could be read by staff; urinated out the cell door; wore no clothing; refused food and drink; and did not respond to her. (CESOF, Exh. 9, p. 189). Her assessment was that M.J.H. “continues to behave in a bizarre manner and although it appears to be behavioral most of the time, at times it is difficult to judge.” (Id. at pp. 189-90). She noted that prescribers were attempting to get parental consent for medication. (Id. at p. 190). M.J.H. was noted to be combative, resistant to towards staff, spitting on them, and was placed in restraints. (PSSOF, Exh. 1, p. IR97).

On May 27, 2010, either a nurse or psychiatric provider asked Dr. Bishop to examine M.J.H. due to poor oral intake. (CESOF, ¶ 71). On May 27, 2010 Dr. Bishop diagnosed dehydration, in need of intravenous (hereinafter, “I.V”) and ordered lab tests. (Id. at ¶ 72; see also PSSOF, Exh. 12, pp. 47, 53). Dr. Bishop testified that he considered MJ.H.’s “situation somewhat of a medical emergency....” (PSSOF, Exh. 12, p. 53). Although he considered transporting M.J.H. to a higher level of care, he wanted to see the lab results and how M.J.H. responded to treatment. (Id.). If M.J.H.’s vital signs had been worse, transport would have been arranged, “[b]ut his vital signs were stable.” (Id. at p. 54). Although Dr. Bishop ordered I.V. fluids, he did not consider medication because “I felt that was totally psych’s responsibility.” (Id. at p. 52; see also CESOF, ¶ 8 (“As a family practitioner, Dr. Bishop would not initiate anti-psychotic drugs.”)). Lab reports confirmed that M.J.H. was suffering from significant dehydration. (CESOF, ¶ 76). Later on May 28, 2010 after M.J.H. had received I.V. fluids, Dr. Bishop noted his dehydration had improved. (PSSOF, Exh. 12, pp. 59t60).

Defense expert, Dr. Potts’ “sense is ... from ... [May] 24th probably, certainly the 26th, 27th ... [M.J.H.] was psychotic. So that is a given, It’s well documented.” (PSSOF, Exh. 7, pp. 22-23). According to Plaintiffs expert, Dr. Don, by May 24, 2010, M.J.H. was “floridly psychotic (PSSOF, Exh. 3, p. 4212).

Prior to May 28, 2010, Dr. Galper knew that a juvenile “was being moved back and forth between the infirmary and the administrative segregation area, and that mental health providers needed to provide support so he could manage better being in jail.” (CESOF, ¶ 78). Conmed holds a “mental health meeting” every morning at PCADC and, according to Dr. Galper, M.J.H. “was discussed intermittently at the meetings.” (Id. at ¶¶ 80-81). Dr. Gal-per also placed M.J.H. ón a “hot spot list” that includes patients about whom mental health professional are most concerned. (CESOF, ¶¶ 82, 83).

Upon seeing M.J.H. on May 28, Dr. Galper immediately diagnosed psychotic disorder and determined that M.J.H. “acutely needed to be medicated.” (Id. at pp. 43-45, 49); see also PSSOF, Exh. 10, pp. 68-69)

After seeing M.J.H. on May 28, 2010, Dr. Galper contacted Plaintiff to obtain consent to administer a psychotropic medication, to M.J.H. (PSSOF, Exh 13, p. 44; CESOF, Exh. 9, p. 187; PSSOF, Exh. 10, p. 68). Plaintiff testified that Dr. Galper identified Prolixin as an anti-psychotic and described it as a “seizure drug or something.” (PSSOF, Exh. 10, p. 68) When she asked how her son felt about taking the medication, Dr. Galper responded that M.J.H. did not want to take it. (Id. at pp. 68-69). When Plaintiff asked Dr. Galper why M.J.H. refused to take the drug, Dr. Galper answered that he did not know... (Id. at p. 69). Plaintiff refused consent because she- wanted to wait until she met with M.J.H. to discuss the matter with him, and she also wanted to research the drug. (Id. at pp. 68-69; CESOF, Exh. 9, p. 187). Dr. Galper informed Plaintiff that if M.J.H. presented a danger to himself or others he would be medicated. (CESOF, Exh. 9, p. 187). If Dr. Galper had received Plaintiffs consent to medicate, he was hopeful he could use oral medication rather than Prolixin. (CESOF, ¶ 93). For Dr. Galper, the most important consideration was keeping M.J.H. safe. (Id. at ¶ 92).

On May 29, 2010, Nurse Condon observed M.J.H. naked and hanging on the doorway and would not get down until correctional staff arrived. (CESOF, Exh 7, pp. 10, 33).

When Plaintiff went to PCADC the following Sunday, May 30, 2010, she was informed that M.J.H. refused to see her. (PSSOF, Exh 10, p. 75). .

On May 30, 2010, Nurse Condon noticed MJ.H’s head was in the toilet and thought he was trying to commit suicide. (Id. at p. 35). Upon approaching, Nurse Condon found M.J.H.’s smock had been shoved into the toilet and M.J.H. was resting his head on the smock. (Id. at pp. 35-36). There was no water in the toilet because the smock had soaked it all up. (Id. at p. 36). Nurse Condon believed that M.J.H. was attempting “to make it appear like he was trying to drown himself ... .trying to get us all excited.” (Id.). Later that day, M.J.H. stood on the ledge of a window, refusing to get down. (CESOF, ¶ 97). He also refused to talk. (Id.). Security removed him, and he was placed in a restraint chair due to risk of self-harm. (Id.).

On May 31, 2010, NP Hogan initiated a meeting with Dr. Galper to discuss medicating M.J.H. because she had concerns about what appeared to be symptoms of psychosis. (CESOF, ¶¶ 98-99). NP Hogan and Dr. Galper determined that M.J.H. required an injection of Prolixin because he was not able to take oral medication (Id. at ¶ 100). After the injection. M.J.H. was not as psychotic, he was more sedate. (Id. at ¶ 103).

Dr. Bishop saw M.J.H. again on June 1, 2010, on his regular rounds. (Id. at ¶ 104). M.J.H. had an elevated heart rate, and Dr. Bishop was concerned about dehydration, and ordered that fluids be encouraged. (PSSOF, Exh. 12, p. 68). Later, at 12:45 p.m., a correctional officer asked Nurse Condon to attend to M.J.H. who was lying on the floor with his fists clenched while he was shivering. (CESOF, ¶ 105). Nurse Condon notified Drs. Bishop and Galper, who both responded, and Dr. Bishop deferred to Dr. Galper’s determination that M.J.H. had not suffered an epileptic seizure. (Id. at ¶¶ 106-109) A neurologic examination was administered and Dr. Gal-per concluded that M.J.H had “volitional control” and did not need to go to a hospital for mental health reasons. (PSSOF, Exh. 13, p. 75). Dr. Galper noted that M.J.H. had an elevated heart rate, “but there’s [sic] ... several reasons when you look at these vital signs independently and by themselves they’re not as meaningful.” (Id. at p. 83). Dr. Galper discussed his findings with Dr. Bishop. (Id. at p. 87).

For his part, Dr. Bishop ordered immediate lab tests. (CESOF, ¶ 123). The decision whether to transfer M.J.H. to a hospital for medical reasons was Dr. Bishop’s responsibility. (See PSSOF, Exh. 13, pp. 75-76). Inmates who have transitory seizures are routinely observed in the infirmary rather than sent to a hospital. (PSSOF, Exh. 12, p. 28). These patients are only transferred to a higher level of care if seizures re-occur, if there is a high fever, or if the patient recently suffered a head injury. (CESOF, ¶ 120). Á decision to transfer is based on medical judgment and factors related to the patient’s condition. (Id. at ¶ 121). Dr. Bishop deferred to Dr. Galper, as the prescribing physician, to advise if there was a problem related to Prolixin. (Id. at ¶ 122). Dr. Bishop was of the opinion that M. J.H. was stable, his labs would be monitored and he would be observed by the nurses in the infirmary. (PSSOF, Exh. 12, p. 78). Dr. Don stated that “[i]n the context of a dehydrated, semiconscious, and delirious individual, a suspected seizure should be treated as a medical emergency. Transfer to a higher level of care should have been undertaken immediately....” (PSSOF, Exh. 3, p. 4220).

On June 1, 2010, at 2:00 p.m., Nurse Condon noted that M.J.H’s tongue was sticking out and his legs were moving as though on a bicycle. (CESOF, ¶ 126; see also PSSOF, Exh. 4, p. 4232 (M.J.H. was noted to be “posturing” and arching his back)). Lab results came back at 5:00 p.m. and Dr. Bishop directed Nurse Con-don to check vitals every four hours and to notify him if M.J.H.’s heart rate increased above 160. (CESOF, ¶ 128). Dr. Bishop concluded that the 5 o’clock lab results were normal and, thus, dehydration was not an issue. (PSSOF, Exh. 12, pp. 79-80). He directed the nurse to inform Dr. Galper that he believed the issue was psychiatric rather than medical. (Id. at p. 80). Nurse Condon informed Dr. Galper of the lab results. (CESOF, ¶ 131).

The evening of June 1, 2010, Nurse Yashar believed that M.J.H. was making conscious choices when he indicated nonverbally that he wanted the Gatorade she had poured for him and indicated when he had enough. (Id. at ¶ 137). When Nurse Yashar checked MJ.H.’s vitals, he had a strong and steady heartbeat, and he complied with Nurse Yashar’s request to raise his aim so she could take his blood pressure. (Id. at ¶¶ 138-139). Nurse Yashar visually observed M.J.H. throughout the night. (Id. at ¶¶ 141-143). The morning of June 2, 2010, Nurse Yashar discovered M.J.H. “lying on his stomach in a puddle around his chest up to his head[ ]”, he was not breathing, and did not have a pulse. (Id. at ¶¶ 144-145; see also CESOF, Exh. 3, pp. 143-144; see also CESOF, Exh. 3, p. 145). An Automatic External Defibrillator was brought into the room and nursing staff administered CPR and basic life support until EMTs took over. (Id. at ¶¶ 149-150).

M.J.H. was first taken to St. Mary’s Hospital where “cardiac arrest, probable anoxic brain injury” was noted. (PSSOF, ¶ 111). M.J.H. was admitted to UMC, where he never regained consciousness and ultimately died on June 11, 2010 when his family consented to discontinuing life support. (PSSOF, ¶ 111; CDSOF, ¶ 42). The Medical Examiner indicates on MJ.H’s death certificate that cause of death is “undetermined.” (CDSOF, Exh. D; PSSOF, Exh. 4, p. 4237).

- Plaintiffs toxicology expert, Paul Wax, M.D., who is board certified in emergency room medicine, is of. the opinion that M.J.H. died as a result of “some variant of [N]euroleptic [Mjalignant [S]yndrome” (hereinafter “NMS”) in which.M.J.H. had no fever, the proximate cause of which was the administration of Prolixin. (CESOF, Exh. 11, p. 21; see also PSSOF, Exh. 4, p. 4230; see also PSSOF, Exh. 4, p. 4234 (NMS “is a severe adverse drug reaction seen with the use of neuroleptic medications” such as Prolixin)). The onset of NMS can occur anywhere from a few hours to days after initiation of therapy. (PSSOF, Exh. 4, p. 4236). NMS “is characterized by muscle rigidity, hyperthermia, autonomic instability, mental status changes, and evidence of muscle injury (e.g., elevated creatine kinase levels) ... the NMS diagnosis could also be made without hyperthermia.” (Id. at pp. 4234-35 (internal quotation marks and citation omitted); see also PSSOF, Exh. 5, p. 4186 (signs and symptoms associated with NMS consist of fever, autonomic instability, leukocytosis, tremor, altered mental status, elevated enzymes (CPK/liver) and muscle rigidity)). Progression of NMS is typically rapid and the duration of symptoms is variable. (PSSOF, Exh. 5, pp. 4186-67). According to Dr. Wax, NMS is a recognized complication associated with Prolixin that can rapidly lead to death and requires intensive medical management in an intensive care setting, which was not available at the infirmary. (PSSOF, Exh. 4, pp. 4235-39). Thus, managing M.J.H. at the infirmary instead of transferring him to a higher level of care, failed to conform to the standard of care, which contributed to his death. (Id. at pp. 4238-39). Dr. Wax notes that “persistent tachycardia on June 1 with heart rate recorded at 120 and 140 ...” combined with abnormal motor movements, including the transient seizure, described as posturing or body contortions or tongue protrusions, and altered mental states, required that M.J.H. receive a more intensive medical evaluation than could be conducted at PCADC. (Id. at p. 4238).

Consistent with Dr. Wax, Plaintiffs forensic pathologist and toxicologist, Daniel Spitz, M.D., is of the opinion that M.J.H. suffered from NMS after receiving Prolix-in. (PSSOF, Exh. 5, p. 4186; id. at pp. 4186-87 (M.J.H. died secondary to an adverse reaction to Prolixin which is best classified as NMS)). Dr. Spitz’s opinion is based on factors, characteristic of NMS: (1) M.J.H. developed persistent tachycardia (up to 140 beats per minute); (2) he showed signs of rigidity with posturing and contorted body movements; (3) he had tremor involving his lower extremities; (4) he had altered mental status; (5) lab tests demonstrated elevated white blood count and elevated liver enzymes; (6) additional testing at the hospital showed elevated CPK level, elevated liver enzymes, and elevated white blood count; and (7) he was found unresponsive and in cardiorespiratory arrest. (Id.).

Defense expert and emergency room physician, Theodore Benzer, M.D., believes M.J.H. could have suffered from NMS and the syndrome would be included in his differential; however, he also believes that it is unlikely that M.J.H. suffered from NMS. (PSSOF, Exh. 8 pp. 27-28). Dr. Benzer was unable to determine the source of MJ.H.’s elevated heart rate because there was not a complete medical evaluation in the infirmary notes. (Id. at p. 20). Dr. Benzer believes that M.J.H. would have been better managed at an ER than at the infirmary. (Id. at pp. 7-8).

II. Discussion

County Defendants move for summary judgment pursuant to Federal Rule Civil Procedure 56(c), arguing that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law on the negligence, gross negligence, wrongful death and § 1983 claims because 1) neither Pima County nor Sheriff Dupnik has a non-delegable duty regarding the medical and mental health care of inmates at PCADC; 2) that County Defendants are relieved of liability for any negligence or gross negligence through the intervening actions of the Conmed Defendants; 3) the wrongful death claim as asserted is not a substantive cause of action; and 4) there is no evidence in the record that the jail’s policy or custom of placing inmates in protective custody for their own protection amounts to deliberate indifference to the inmate’s constitutional right.

Conmed and Employee Defendants move for partial summary judgment pursuant to Federal Rule Civil Procedure 56(e), arguing that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law as to Plaintiffs § 1983 claim because the indisputable facts in this case demonstrate that Conmed and Employee Defendants did not know of and thus disregarded an excessive risk to MJ.H.’s life and safety, and Plaintiffs constitutional claim against these Defendants fails as a matter of law. Conmed and Employee Defendants also argue that Plaintiff cannot prove, by clear and convincing evidence, that these defendants acted with the “evil mind” required to recover exemplary damages under Arizona law.

A. Summary Judgment Standard

Pursuant to the Federal Rules of Civil Procedure, a party may seek summary judgment where there is no genuine issue as to any material fact and that party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and that the dispute is genuine, ie., the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 250, 106 S.Ct. 2505; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir.1995). Rule 56(c) provides that “[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record ... or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” An issue of fact must be genuine. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). If the factual context makes the non-movant’s claim implausible, that party must come forward with more persuasive evidence to support its claim than would otherwise be necessary. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The mere existence of a scintilla of evidence supporting the non-movant’s position will be insufficient; there must be evidence from which a fair-minded jury could reasonably find for the non-movant. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits or declarations, if any. See Fed.R.Civ.P. 56(c). However, the “trial court can only consider admissible evidence.... ” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002). The court should view the facts and draw reasonáble inferences “in the light most favorable to the party opposing the [summary judgment] motion.” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). The ultimate question is whether the evidence “presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. A party cannot defeat summary judgment by producing a “mere scintilla of evidence to support its case.” City of Vernon v. Southern Cal. Edison Co., 955 F.2d 1361, 1369 (9th Cir.1992).

B. Non-Delegable Duty

The County Defendants argue that neither Pima County nor Sheriff Dupnik can be vicariously liable for the alleged medical malpractice of the Conmed defendants on any medically related claim under a nondelegable duty of care theory. The County Defendants contend that the statute charging the county sheriff with the care of inmates does not state that the county sheriffs duty to provide medical or mental health care is non-delegable, nor does it make the county sheriff liable for medical malpractice, negligence or gross negligence of health care providers that treat inmates in a county jail. The County Defendants also assert that any duty or obligation they might have to provide medical or mental health care is satisfied through the contract with the Conmed Defendants to provide these services.

Generally, the question of whether a duty is owed is a question of law to be determined by the court. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364 (1985) superseded on other grounds by statute, A.R.S. § 33-1551, as recognized in Wringer v. United States, 790 F.Supp. 210, 213 n. 3 (D.Ariz.1992); Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316 (1983). The Supreme Court recognizes that: “An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do - so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Supreme Court has held that a state has a constitutional obligation, under the Eighth Amendment, to provide adequate medical care to those whom it has incarcerated. Id., at 104, 97 S.Ct. 285. The parties do not dispute that Arizona statute also imposes a duty of care upon the office of Sheriff to: “take charge of and keep the county jail ... and the prisoners in the county jail.” A.R.S. § 11-441(A)(5). The question presented is whether the duty owed to M.J.H. to provide medical and mental health care may be delegated by contract such that the county is thereby relieved of all liability to its detainees for such care. The County Defendants argue that the statute does not state that the county sheriff has a nondelegable duty to provide medical or mental health care, nor does the statute make the county sheriff liable for the negligence of any medical or mental health care provider that treats inmates in a county jail.

When there is a' non-delegable duty, the principal is vicariously liable for the negligence of an independent -contractor and the independent contractor is the principal’s agent as a matter of law. Wiggs v. City of Phoenix, 198 Ariz. 367, 370-71, 10 P.3d 625 (2000). A nondelegable duty arises in special situations when a higher degree of care is prescribed by law and the duty of an employer is important enough that he may not escape liability by delegating the duty to an independent contractor. Simon v. Safeway, Inc., 217 Ariz. 330, 338, 173 P.3d 1031 (App.2007). For vicarious liability to exist under the nondelegable duty doctrine, a statute, regulation, contract, franchise, or charter must impose the duty upon the principal or the duty must be non-delegable under the common law. Id.

County Defendants argue that in other jurisdictions, courts have held that a county or sheriff cannot be vicariously liable for the medical malpractice of contracted healthcare providers working in a jail. In Thomas v. Harris County, 30 S.W.3d 51, 53 (2000), the Texas Court of Appeals held that the county could not be found liable under the Texas Tort Claims Act (TTCA) for the negligence of physicians employed by an independent contractor to provide medical services at the county jail. The court agreed with Plaintiff that the county has a non-delegable duty to provide adequate health care and cannot relieve itself of its responsibility to provide adequate health care to its inmates, but the court found that the county discharged that duty by entering into a contract with a reputable health care provider to provide for the medical needs of those incarcerated. Id. at 54. The court in Thomas sided with plaintiff by holding that the county’s duty was non-delegable. In Thomas, liability was ultimately predicated on the TTCA, which waived immunity only for acts of an employee. Id. The court there found that, regardless of the fact that the county reserved the right to effectuate the removal of any physician, and that physicians were required to observe security procedures within the confines of the jail, the legislature had specifically refused to waive the immunity of counties only for conduct “of an employee”, choosing to define the term “employee” to specifically exclude the “independent contractors.” Id.

County Defendants also cite for support cases in other jurisdictions where the courts reasoned that a governmental entity could satisfy its responsibilities to inmates by exercising reasonable care in the selection and supervision of independent contractors, refusing to adopt a rule that would require the government, actor to become a guarantor of satisfactory performance by the independent contractor’s employees even though the government had no control over that performance in a given case. Herbert v. District of Columbia, 716 A.2d 196 (1998) (governmental entity not liable for the negligent provision of medical services of a physician who was working in- the jail pursuant to a contract absent some proof that the governmental entity was negligent in hiring that contractor); Rivers v. State, 159 A.D.2d 788, 789, 552 N.Y.S.2d 189 (N.Y.A.D.1990) (rejecting the notion that the state should be a guarantor of the adequacy of medical services beyond its control because it would give prisoners greater ' medical malpractice rights than the rights afforded the rest of society).

By contrast, Arizona has recognized that public policy requires that in situations involving involuntary detainment or commitment a county remain “ultimately liable” for any breach of duty of care. De-Montiney v. Desert Manor Convalescent Center, Inc., 144 Ariz. 6, 9, 695 P.2d 255 (1985). In DeMontiney, Yuma County had contracted with the Desert Manor Convalescent Center to provide “security rooms” to temporarily house involuntarily detained or “mental-hold” patients. 144 Ariz. at 7, 695 P.2d 255. A patient held in one of these security rooms committed suicide before he could be transferred to the State Hospital. Id. The patient’s mother filed a wrongful death suit against several entities and providers, including Yuma County. Id. The Arizona Supreme Court found that, pursuant to Arizona statute, Yuma County had a duty to provide screening and evaluation services to involuntarily detained patients. Id. The court noted that while Yuma County was statutorily authorized to contract with other entities to provide such services, “the statute does not authorize the county to delegate its duty to provide proper care and treatment” and “[w]hen a county contracts for services, the contractee assists the county in fulfilling that duty; it does not relieve the county of it.” Id. at 9, 695 P.2d 255. The court reasoned:

Were the statutes to provide otherwise, a mental-hold patient harmed by a' contractee would have no recourse against the county even though it is the county that is expressly responsible for the person’s care and treatment and it is the county that chose the contractee who provided the actual care.... It is in the public interest that the county remain ultimately liable for any breach of that very important duty.

Id. The court in DeMontiney remanded the case for a determination of whether the County was negligent in its own right and whether it was negligent through the acts of its contractees. Id. at 9, 695 P.2d 255.

There is no evidence in this case that the legislature intended to permit the County or the Sheriff to delegate their duties and obligations they owed to M.J.H. As the Arizoná Supreme Court expressed in DeMontiney, “[a]bsent clear indication by the legislature that it intended to permit the county to delegate the duty, we will not infer that it did.” 144 Ariz. at 7, 695 P.2d 255.

County Defendants also argue that Sheriff Dupnik cannot be held liable because he is not licensed to practice medicine. The, Court in DeMontiney, however, did not find a county’s ability to provide services determinative, stating: “we do not believe the Legislature intended a system in which a county’s liability to mental-hold patients is based on the county’s ability, or willingness, to provide services directly.” Id. In DeMontiney the County Board of Supervisors entered contracts to provide medical care because it was having difficulty in procuring medical personnel doctors directly. Id. at 9, n. 2, 695 P.2d 255. Herein, similarly, there is also no evidence that the legislature intended that the County be relieved of liability to provide services for which elected public officials are personally unqualified or unable to provide nor has County Defendant presented any legal theory in support of this argument.

County Defendants state that Arizona courts have engaged in a similar analysis regarding the non-delegable duty of care theory in other types of cases involving licensed professionals, such as the State’s duty to provide counsel to indigent defendants. See e.g. State v. Hicks, 219 Ariz. 328, 198 P.3d 1200 (2009). The State’s duty to provide counsel to indigent defendants, discharged upon the appointment of counsel, is not analogous to the County’s duty to care for inmates held at the county jail. The State has an- obligation to appoint competent counsel, but the State’s duty ends there; further interference with counsel’s representation would encroach' upon both the defendant’s Sixth Amendment rights and the appointed attorney’s ethical obligations. See id. at ¶ 12, (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“[t]he government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence”) and Polk County v. Dodson, 454 U.S. 312, 321; 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (noting that an appointed attorney, even though paid by the State, has an ethical duty to exercise independent judgment on behalf of the client)). The same constitutional implications and ethical conflicts that arise when the State appoints counsel for indigent defendants do not arise when the State undertakes its duty to care for its inmates.

For the reasons stated above, the Magistrate Judge finds that County Defendants duty to provide medical and mental health care to M.J.H. is non-delegable.

C. Negligence and/or Gross Negligence

1. Count One: County Defendants

Plaintiff alleges that County Defendants owed M.J.H a non-delegable duty to provide care, custody, and control, and breached that duty by failing to: (1) place M.J.H in restrictive custody knowing he was predisposed to mental deterioration from restrictive custody; (2) enforce the “keep away” order; (3) provide a less restrictive custody while ensuring MJ.H’s safety and security; (4) provide reasonable alternative activities to protect against the deterioration of M.J.H’s pre-existing mental health condition; (5) adequately monitor the use of psychotropic drugs within the PCADC; (6) reasonably monitor M.J.H.; and (7) timely summon emergency medical care. (SAC, ¶¶ 61 — 62).

In order to prevail on an ordinary negligence claim, a plaintiff must prove: (1) a legal duty of the defendant to conform to a standard of conduct recognized by Arizona law for the protection of others against unreasonable risk; (2) the failure of the defendant to conform to the required standard; (3) a reasonably close causal connection between the defendant’s conduct and the resulting injury to Plaintiff (proximate cause); and (4) actual loss by or damage to the plaintiff. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200 (1983) (quoting W. Prosser, Handbook of the Law of Torts § 30 at 143 (4th ed.1971)); Boyle v. City of Phoenix, 115 Ariz. 106, 107, 563 P.2d 905 (1977).

In order to state a claim for gross negligence, Plaintiff must allege that Pima County acted or failed to act when it knew or had reason to know facts which would lead a reasonable person to realize that its conduct not only created an unreasonable risk of bodily harm to others but also involve a high probability that substantial harm would result. Nichols v. Baker, 101 Ariz. 151, 153, 416 P.2d 584 (1966); Walls v. Arizona Dept. of Public Safety, 170 Ariz. 591, 595, 826 P.2d 1217 (App.1991). Gross negligence is different from ordinary negligence “in quality and not degree.” See Kemp v. Pinal County, 13 Ariz.App. 121, 124, 474 P.2d 840 (1970) (“A person can be very negligent and still not be guilty of gross negligence.”)

County Defendants argue that if they were negligent in placing M.J.H. in protective-custody status, the actions of the Conmed Defendants, i.e. the alleged failure to diagnose and treat MJ.H.’s medical and mental health needs before and after the Prolixin injection, relieves the County Defendants of liability as an intervening cause and that Plaintiff has failed to produce any evidence to support their theory that the trigger- for MJ.H.’s mental health issues might have been due, at least in part, to the decision to place M.J.H. on protective-custody status after he was assaulted by another inmate.

There is no -dispute that M.J.H. was assaulted by another inmate after a corrections officer missed the existence of a keep-separate order between M.J.H. and his assailant, and that because of his fear that he would be assaulted again, corrections staff placed M.J.H. on protective custody status.

Plaintiff asserts that County Defendant’s own expert ties this event to M.J.H.’s ultimate mental and physical decline that resulted in his death. When asked whether M.J.H. deteriorated from a mental health standpoint following the assault, defense expert Dr. Potts opined:

I think he had a period of — clearly had some increased problems. He clearly deteriorated after the assault, but I think it was more a month later.

I mean, there was a period where he appears to be doing relatively well, at least as reflected by a lack of notes and the notes saying that he was tolerating the situation, et cetera.

Absolutely an assault in a jail .setting can — will increase your stress problems, thoughts, et cetera. So doesn’t mean he didn’t have an acute stressful period, a period of remission of stability, and then have what precipitated his death, the psychotic — clear psychotic phenomena later.

(PSSOF, Exh. 7, p. 30).

Plaintiff argues that there is no need for an expert witness to establish the claim that an officer should follow a keep-separate directive and that he is at fault if he does not because it is well within the ability of a lay juror to understand, and a triable claim of negligent failure to protect exists. The records Dr. Potts reviewed indicate that M. J.H. “was getting out of his cell one hour a day, time out of his cell, et cetra, et cetra, would — could have some bearing on the ... stressors that contributed, I believe to psychotic break.” (PSSOF, Exh. 7, pp. 146-47; see also id. at pp. 39-42) Dr. Potts testified that he believed that “lockdown was more a stressor” than M-J.H.’s insomnia and that solitary confinement contributed to M.J.H. becoming psychotic. (PSSOF, Exh. 7, pp. 40-42).

Whether proximate cause exists is a question for the jury, unless reasonable people could not differ. Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 1040 (1990) (“The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred.”) (citation omitted). An original actor may be relieved from liability for “the final result when, and only when, an intervening act of another was unforeseeable by a reasonable person in the position of the original actor and when, looking backward, after the event, the intervening act appears extraordinary.” Ontiveros, 136 Ariz. at 506, 667 P.2d 200. The determination of whether an event was extraordinary requires consideration of all the facts, including those about which the defendant knew nothing at the time of the event. Restatement (Second) Torts § 435, comment d.

The Court cannot say that the intervening actions of the Conmed Defendants in allegedly failing to properly diagnose and treat MJ.H.’s medical and mental health needs, both before and after the Prolixin injection, was an event so extraordinary that the County Defendants should be absolved of liability for their failure to protect and their decision to place and continue M.J.H. on protective custody status.

2. Conmed Defendants

Conmed Defendants do not move for summary judgment on Count Two of the SAC, negligence and/or gross negligence as to Conmed Defendants. Accordingly, this Count remains.

D. Wrongful Death'

County Defendants advise that Count Three, alleged as a wrongful death cause of action against all Defendants, is a general allegation of jurisdiction under the wrongful death statutes under Arizona law, A.R.S. § 12-611 et seq., and is not a separate cause of action. Rather, it is a vehicle for bringing the negligenee/gross negligence claims.

There is no common law right of action for wrongful death. A wrongful death action is an original and distinct claim for damages sustained by statutory beneficiaries and is not a derivative or continuation of claims existing in a decedent. Halenar v. Maricopa County, 109 Ariz. 27, 29, 504 P.2d 928 (1972). Accordingly, as stated in the SAC, A.R.S. § 12-611 et seq., entitles Plaintiff as a surviving parent, to maintain the actions alleged in the SAC, Counts One, Two, Four and Five, that the death of M.J.H. was caused by “wrongful act, neglect or default,” but does not state a claim as to Count Three because it does not allege an affirmative link between the death of M.J.H. and the conduct of any particular defendant. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

E. Jp2 U.S.C. § 1983

1. Defendant Dupnik

Count Four is alleged pursuant to 42 U.S.C. § 1983 against Defendant Dupnik in his role as official policy maker for the PCADC for use of isolation in violation of the Eighth Amendment proscription against cruel and unusual punishment and in violation of the Fourteenth Amendment’s guarantee of due process of law. Plaintiff argues in her response to Defendants’ motion that the conditions under which M.J.H. was held in the PCADC constitute cruel and unusual punishment and are directly attributable to the policies and procedures in place at the PCADC. Specifically, Plaintiff asserts that Pima County does not maintain a mental health unit for remanded juveniles, and instead has three available housing choices: (1) general population; (2) administrative segregation; and (3) suicide watch in the infirmary. As a result, when MJ.H.’s mental health deteriorated, they had no available placement other than a suicide cell where harsh conditions only' exacerbated the problems M.J.H. was experiencing.

A suit against a municipal officer in his official capacity is equivalent to a suit against the municipality. Monell v. Dep’t of Social Sens, of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff can establish by one of two paths that a municipality has inflicted a constitutional injury. First, a plaintiff can show that a municipality itself violated someone’s rights or that it directed its employee to do so, Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1185 (9th Cir.2002) (citing Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)); or second, a plaintiff can allege that through omissions, the municipality is responsible for a constitutional violation committed by one of its employees, even though the municipality’s • policies were facially constitutional, and the municipality did not direct the employee to take the unconstitutional action, nor did the municipality have the state of mind required to prove the underlying action. Id. (citing City of Canton v. Harris, 489 U.S. 378, 387-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).

To succeed under the first path, Plaintiff must show that.“action pursuant to official municipal policy” cau