                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 19 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RONALD EDWARD OYENIK,                            No.   15-16850

              Plaintiff-Appellant,               D.C. No. 2:13-cv-01597-SPL

 v.
                                                 MEMORANDUM*
CORIZON HEALTH INCORPORATED,
Healthcare Provider at ASPC Florence -
South Unit,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Steven Paul Logan, District Judge, Presiding

                       Argued and Submitted April 19, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, and FERNANDEZ and MURGUIA, Circuit
Judges.

      Ronald Edward Oyenik (“Oyenik”) appeals the district court’s grant of

summary judgment to Corizon Health, Inc. (“Corizon”). We have jurisdiction




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
pursuant to 28 U.S.C. § 1291, and we reverse and remand. Because the parties are

familiar with the facts of this case, we do not repeat them here.

      The Eighth Amendment to the Constitution prohibits the infliction of “cruel

and unusual punishments.” By enacting 42 U.S.C. § 1983, Congress ensured that

“[e]very person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law . . . .”

      In Monell v. Department of Social Services of the City of New York, 436 U.S.

658 (1978), the Supreme Court made clear that “a local government may not be

sued under § 1983 for an injury inflicted solely by its employees or agents.

Instead, it is when execution of a government’s policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an entity is responsible

under § 1983.” Id. at 694. In other words, “a municipality cannot be held liable

under § 1983 on a respondeat superior theory.” Id. at 691. Because respondeat

superior is not an available theory of liability, “[a] government entity may not be

held liable under 42 U.S.C. § 1983[ ] unless a policy, practice, or custom of the


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entity can be shown to be a moving force behind a violation of constitutional

rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011).

       Assuming, without deciding, that Monell applies in this context,1 Oyenik

must show that “(1) [Corizon] acted under color of state law, and (2) if a

constitutional violation occurred, the violation was caused by an official policy or

custom of [Corizon].” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir.

2012).

       Oyenik is suing Corizon, a corporation contracted by the State of Arizona to

provide medical treatment to state prisoners. Such a function is “fairly attributable

to the State” and can therefore give rise to § 1983 liability. West v. Atkins, 487

U.S. 42, 54 (1988) (citing Estelle v. Gamble, 429 U.S. 97, 103–04 (1976)). Thus,

the first requirement is satisfied.




       1
         In Tsao, we were asked to decide “for the first time in this circuit, whether
Monell . . . applies to suits against private entities under § 1983.” 698 F.3d at
1138. We held that it does. Id. at 1139. But because Monell does not apply to
state governments (which are immune from suit under the Eleventh Amendment,
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)), and we did not
specifically state in Tsao that the respondeat superior preclusion extends to private
entities acting on behalf of state governments, we assume without deciding that the
Monell standard applies in this case. If Monell does not apply, then traditional
respondeat superior analysis would apply. Therefore, there is no need for us to
reach the issue because Monell is a more demanding standard (i.e., Oyenik would
satisfy respondeat superior if he satisfies the requirements of Monell).
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      As for the second requirement, the district court concluded that Oyenik had

raised triable issues of fact with respect to his serious medical need, Corizon’s

deliberate indifference to that need, and the harm caused by that indifference—in

other words, a constitutional violation occurred. But the district court granted

summary judgment to Corizon because “Oyenik [did] not present evidence of a

Corizon policy or practice that demonstrates deliberate indifference,” and “[t]here

[was] no evidence of a pattern of similar situations that show or suggest Corizon

regularly rejected consultation requests under a pretext of allegedly insufficient

information.”

      “Proof of random acts or isolated events is insufficient to establish custom,”

Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995), and “[l]iability for improper

custom may not be predicated on isolated or sporadic incidents; it must be founded

upon practices of sufficient duration, frequency and consistency that the conduct

has become a traditional method of carrying out policy,” Trevino v. Gates, 99 F.3d

911, 918 (9th Cir. 1996), holding modified by Navarro v. Block, 250 F.3d 729 (9th

Cir. 2001). While one or two incidents are insufficient to establish a custom or

policy, see Davis v. City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir. 1989);

Meehan v. Cty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988), we have not




                                           4
established what number of similar incidents would be sufficient to constitute a

custom or policy.

      Oyenik has shown at least a dozen instances of Corizon denying or delaying

consultations, biopsies, and radiation treatment for his prostate cancer over the

course of almost a year. There is no case law indicating that a custom cannot be

inferred from a pattern of behavior toward a single individual, and a reasonable

jury may conclude that such delay tactics amount to a Corizon custom or practice

of deliberate indifference to prisoners’ serious medical needs. See Oviatt By &

Through Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992).

      Oyenik tendered sufficient facts to survive summary judgment on the theory

that Corizon had a custom of deliberate indifference to his serious medical needs.

The district court erred in granting summary judgment to Corizon.

      REVERSED and REMANDED.




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