Stribling v. Brock et al

Northern District of California, cand-4:2015-cv-03336

ORDER by Judge Yvonne Gonzalez Rogers granting {{16}} Defendants' Motion for Summary Judgment; denying {{26}} Motion to Strike Reply.

Interested in this case?

Current View

Full Text

6 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 AARON LAMONT STRIBLING, 4 Case No. 15-cv-03336-YGR (PR) Plaintiff, 5 ORDER DENYING PLAINTIFF'S v. MOTION TO STRIKE REPLY; AND 6 GRANTING DEFENDANTS' MOTION DR. K. BROCK, et al., FOR SUMMARY JUDGMENT 7 Defendants. 8 9 I. INTRODUCTION 10 Plaintiff Aaron Lamont Stribling, a state prisoner currently incarcerated at California State 11 Prison - Sacramento, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 stemming 12 from constitutional violations that took place at Salinas Valley State Prison ("SVSP"), where he Northern District of California United States District Court 13 was previously incarcerated. Specifically, Plaintiff alleges a claim of deliberate indifference to 14 medical needs against two SVSP psychologists, Drs. K. Brock and R. Mahan, stemming from 15 inadequate mental health treatment in 2013. Dkt. 1 at 3. 16 The parties are presently before the Court on Defendants' Motion for Summary Judgment. 17 Dkt. 16. Plaintiff has filed an opposition to Defendants' motion, and Defendants have filed a 18 reply. Dkts. 24,1 25. Plaintiff has also filed a motion to strike Defendants' reply brief. Dkt. 26. 19 For the reasons stated below, Plaintiff's motion to strike is DENIED, and Defendants' 20 motion for summary judgment is GRANTED. 21 II. PLAINTIFF'S MOTION TO STRIKE 22 Plaintiff has moved to strike Defendants' reply brief as untimely. Dkt. 26. 23 Defendants' reply brief is properly understood as a reply brief in support of their motion 24 for summary judgment. Litigants may file reply briefs in support of their motions wherein they 25 26 1 Page number citations refer to those assigned by the Court's electronic case management 27 filing system and not those assigned by the parties. In addition, Plaintiff's opposition includes one page (a paragraph was crossed out and the remaining words are illegible) that he has seemed to 28 have inserted inadvertently in the middle of the opposition, which will not be considered but will be included in the page count because it was e-filed with the rest of the opposition. Dkt. 24 at 6. 6 1 address arguments raised in oppositions to their motions and they reemphasize arguments set forth 2 in their motions. Such a reply brief is authorized by both Local Rule 7-3(c) and by the Court's 3 January 12, 2016 Order of Partial Dismissal and Service, which set forth a briefing schedule. Dkt. 4 4 at 4-6. The Court's briefing schedule required Defendants to file a reply brief "no later than 5 fourteen (14) days after the date Plaintiff's opposition is filed." Id. at 6 (emphasis in original). 6 Plaintiff claims that his opposition was "filed" on "7-11-16." Dkt. 26 at 1. However, the record 7 shows that he merely signed his opposition on that date. Dkt. 24 at 9. Plaintiff's opposition was 8 stamped as "FILED" by the Clerk of the Court on July 15, 2016. Dkt. 24. Defendants' reply was 9 filed on July 29, 2016—fourteen days after Plaintiff's opposition was filed. Dkt. 25. Therefore, 10 the Court finds that Defendants' reply brief was timely filed. Accordingly, the Court DENIES 11 Plaintiff's motion to strike and will consider the substance of Defendants' reply. 12 III. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Northern District of California United States District Court 13 A. Factual Background2 14 1. The Parties 15 At the time of the events set forth in his complaint, Plaintiff was a state prisoner who was 16 incarcerated at SVSP. Dkt. 1 at 1. Also during the same time frame, Defendants were clinical 17 psychologists at SVSP. Mahan Decl. ¶ 1; Brock Decl. ¶ 1. 18 19 2 This Order contains many acronyms. Here, in one place, they are: 20 ad-seg Administrative Segregation 21 ADHD Attention Deficit Hyperactivity Disorder AH Auditory Hallucinations 22 CO Custody Officer CTC Correctional Treatment Center 23 DSH Department of State Hospitals EOP Enhanced Outpatient Program 24 IDTT Interdisciplinary Treatment Team LOC Level of Care 25 MH Mental Health MHCB Mental Health Crisis Bed 26 MHDS Mental Health Delivery System NOS Not Otherwise Specified 27 OD Overdose SI Suicide Ideation 28 TTA Triage and Treatment Area VH Visual Hallucinations 2 6 2. Plaintiff's Version 1 The following is taken from the Court's January 12, 2016 Order of Partial Dismissal and 2 Service: 3 Plaintiff claims that on August 23, 2013, he attempted suicide and was "sent to the crisis bed" area for eleven days. Dkt. 1 4 at 3. However, Plaintiff alleges Defendants Brock and M[a]han kept trying to discharge him, only to have him return after attempting to 5 commit suicide on two more occasions after being discharged on September 3 and 4, 2013. Plaintiff claims that these Defendants 6 "purposely discharged [him] wrongfully because they needed more room for other inmates that were suicidal." Id. 7 Dkt. 4 at 3. 8 After liberally construing Plaintiff's aforementioned allegations that Defendants failed to 9 provide adequate mental health treatment, the Court found that Plaintiff stated a cognizable 10 deliberate indifference claim. Id. 11 3. Defendants' Version 12 Northern District of California a. The CDCR's Mental Health Care Program United States District Court 13 The California Department of Corrections and Rehabilitation's ("CDCR") program for 14 mental health encompasses four levels of mental health treatment, which include (in order from 15 the lowest to highest level of treatment), the Correctional Clinical Case Management System, the 16 Enhanced Outpatient Program ("EOP"), the Mental Health Crisis Bed ("MHCB"), and the 17 California Department of Mental Health. Williams v. Kernan, 2009 WL 2905760, *1 (E.D. Cal. 18 2009). 19 The appropriate level of care for an inmate is based upon his level of functioning. Id. An 20 inmate's level of functioning is determined by the severity of his symptoms, his ability to conduct 21 self-care, his ability to participate in activities of daily living, and his general adaptation to the 22 prison environment. Id. 23 The EOP is the most intensive level of outpatient care for mentally ill inmates, involving a 24 separate housing unit and structured activities for inmates who have difficulty housing in general 25 population but do not require inpatient hospitalization. Brock Decl. ¶ 2. Inmates at the EOP level 26 of care receive increased clinical and custodial support, including comprehensive mental health 27 services. Id. 28 3 6 1 The MHCB unit provides an elevated level of care to inmates who are experiencing acute 2 psychiatric symptoms leading to marked impairment and dysfunction, dangerousness to others, or 3 dangerousness to self. Id. ¶ 3. At SVSP, the MHCB is located within the prison's inpatient 4 medical facility—the Correctional Treatment Center ("CTC")—and offers 24-hour mental health 5 care to inmates who need it. Id. CDCR employees who become aware of an inmate's "suicidal 6 ideation" (i.e., suicidal thoughts), threats, or an attempt to commit suicide are required to notify 7 mental health staff immediately. Id. ¶ 4. The inmate will then receive a suicide-risk assessment 8 by a qualified mental health clinician on an emergency basis. Id. 9 Inmates expressing "suicidal ideation" are initially placed in a holding cell in the CTC. Id. 10 ¶ 5. A triage nurse conducts a preliminary evaluation of the inmate's mental and physical status 11 and refers the inmate for an MHCB admission evaluation. Id. The triage nurse may also put the 12 inmate on suicide precaution, which means the inmate is at high risk of attempting self-injurious Northern District of California United States District Court 13 behavior, but is not in immediate danger. Id. The inmate is provided with a safety smock, a safety 14 blanket, as well as a safety mattress, and the inmate will receive checks by nursing staff every 15 fifteen minutes until the inmate is either admitted to MHCB or cleared for release back to the 16 housing unit. Id. 17 The MHCB admission evaluation is conducted face-to-face by a clinician who has been 18 trained to conduct suicide-risk assessments. Id. ¶ 6. Such assessments include consideration of 19 certain static, long-term, short-term, and protective risk factors, using the clinician's best clinical 20 judgment, and the results are recorded on a Suicide Risk Evaluation form. Id. Inmates who are at 21 significant suicide risk are admitted to the MHCB for further mental health treatment, 22 stabilization, and suicide prevention. Id. Once an inmate no longer presents a significant suicide 23 risk, he can be discharged from the MHCB. Id. Admission to MHCB is not contingent on 24 available bed space at a particular institution; if the beds are full, the inmate will be kept under 25 observation and transferred to an MHCB at a different institution. Id. 26 b. Plaintiff's Mental Health Treatment 27 For many years, Plaintiff has been a participant in CDCR's Mental Health Services 28 Delivery System, also known as the Mental Health Delivery System ("MHDS"). Mahan Decl. ¶ 2. 4 6 1 In 2013, Plaintiff was receiving mental health treatment at the EOP level of care. Id. In April 2 2013, after receiving a Rules Violation Report for "Battery on an inmate with serious bodily 3 injuries," Plaintiff was placed in administrative segregation ("ad-seg"). Van Loh Decl., Ex. C, 4 Plaintiff's Dep. 44:6-22. On June 19, 2013, a mental health treatment team, called the 5 Interdisciplinary Treatment Team ("IDTT"), consisting of two psychologists, a psychiatrist, a 6 psychiatric technician, and a correctional counsel (none of which are named as Defendants in this 7 action), conducted a comprehensive evaluation of Plaintiff, and on June 24, 2013, they drafted a 3- 8 page "Mental Health Treatment Plan." Mahan Decl. ¶ 2; Van Loh Decl., Ex. B at 1-5. The team 9 noted his diagnoses of "Mood Disorder, NOS [not otherwise specified]," "Antisocial Personality 10 Disorder," and "Narcissistic Personality Disorder." Van Loh Decl., Ex. B at 3. The team also 11 noted as follows: 12. . . [Plaintiff] came to [ad-seg] for battery on an IM [inmate]. Northern District of California United States District Court Recently, there has been no indication of delusional thinking or 13 psychological thought process. Previous clinicians indicated that the psychotic symptoms which he presented were questionable. 14 [Plaintiff] has a history of being evasive when asked about specifics of AHs [auditory hallucinations] or VHs [visual hallucinations]. 15 Additionally, [Plaintiff] has frequently been observed to be laughing and joking with other inmates, often immediately before or after he 16 has reported being severely depressed to his clinicians. It is unlikely that [Plaintiff] will require or benefit from long term EOP 17 placement. According to his last clinician on the EOP yard, [Plaintiff] progressed in his level of functioning and was close to 18 reaching maximum benefits from the EOP MHDS. [Plaintiff] has proven to be a strong advocate from himself when needing services 19 from custody, medical as well as mental health. [Plaintiff] is prescribed Strattera.3 Housing COs [custody officers] report that 20 [Plaintiff] has been "quiet" since coming to [ad-seg]. Current clinical issues include mood instability and anger management. He 21 has had a poor MH [mental health] treatment compliance during the last 6 months. [Plaintiff] has no history of suicide attempts. . . . . 22 Id. at 1 (footnote and brackets added). 23 Based on progress notes, written by his primary clinician Dr. A. Capre, dated from June 24 20, 2013 through the morning of August 23, 2013, Plaintiff reported no acute psychiatric 25 symptoms and denied having suicidal thoughts. Mahan Decl. ¶ 3; Van Loh Decl., Ex. B at 6-16. 26 27 3 28 Plaintiff was prescribed Strattera to treat his attention deficit hyperactivity disorder ("ADHD"). Van Loh Decl., Ex. B at 34. 5 6 1 On July 19, 2013, Plaintiff informed Dr. Capre as follows: "I don't have any problems with my 2 mental health. All of my problems are with the administration and the court." Van Loh Decl., Ex. 3 B at 10. 4 On August 16, 2013, Plaintiff reported that he was having problems with custody officers, 5 and he described the stress from interacting with these officers as "unbearable." Id. at 15. 6 Plaintiff asked Dr. Capre for a transfer to the Department of State Hospitals ("DSH") to address 7 his anger problems, and Plaintiff "became irritated" when informed that his level of care would be 8 decided by the "treatment team including psychiatry and custody." Id. A week later, on August 9 23, 2013 at around 10:30 a.m., Plaintiff again asked Dr. Capre about transferring to DSH. Id. at 10 16. When she refused, responding that Plaintiff was "functioning higher than a person who would 11 be sent to DSH," he "became angry and asked to return to his cell." Id. Dr. Capre noted that, at 12 that time, Plaintiff did not report that he was having suicidal thoughts. Id. Northern District of California United States District Court 13 1) August 23, 2013 – Alleged Suicide Attempt and Admission to MHCB 14 On August 23, 2013 at approximately 9:15 p.m., Plaintiff was brought to CTC after 15 notifying custody staff that he was having suicidal thoughts. Brock Decl. ¶ 9; Van Loh Decl., Ex. 16 B at 17, 20. Plaintiff "walk[ed]" to CTC to be examined by the triage nurse, V. Welzenbach, 17 R.N., and he reported as follows: "I feel like taking myself out before someone else does." Van 18 Loh Decl., Ex. B at 17. The nurse's notes under "TRAUMA" indicates that Plaintiff "DENIE[D]" 19 any injury at that time. Id. The nurse further noted that Plaintiff was "ALERT" and "OBEY[ED] 20 COMMANDS." Id. Plaintiff was referred to the MHCB for an admission evaluation and retained 21 in a separate holding area (as the holding cells at CTC were filled) until he could be evaluated by a 22 clinician trained to conduct suicide evaluations in the morning. Van Loh Decl., Ex. B at 18, 20. 23 He was placed on suicide precaution and given a safety smock, safety blanket, as well as a safety 24 mattress. Id. at 18. During this time, Plaintiff received periodic checks by nursing staff, which 25 indicated that he showed "no distress" while he waited to be evaluated. Id. at 20. According to 26 the Triage and Treatment Services Flow Sheet notes from August 23, 2013 at 12:00 a.m. through 27 August 24, 2013 at 9:15 p.m., Plaintiff displayed "no self-harm" and "no distress" while he was at 28 the holding area. Id. at 20. 6 6 1 At approximately 9:15 a.m. on August 24, 2013, a clinician named Dr. R. Sardy evaluated 2 Plaintiff. Mahan Decl. ¶ 4; Van Loh Decl., Ex. B at 20. According to the Suicide Risk Evaluation 3 conducted by Dr. Sardy, Plaintiff reported with no supporting evidence that he had been "hoarding 4 medication" and "took 'a lot' of pills 'overdosing' last night in front of medical [staff]." Mahan 5 Decl., Ex. A at 1-2, 19. However, Plaintiff was "not sent to outside hospital and there was no 6 medical evidence of OD [overdose]." Id. at 40. Dr. Sardy continued "suicide precaution" Id. Dr. 7 Sardy also completed a Mental Health Evaluation, in which he stated that Plaintiff "reported intent 8 to engage in self-harm" and "that [Plaintiff] had a plan but would not discuss [it]." Id. at 3 9 (brackets added). At 10:35 a.m., Dr. Sardy approved Plaintiff for admission to the MHCB. Van 10 Loh Decl., Ex. B at 19. According to the Triage and Treatment Services Flow Sheet notes and 11 Interdisciplinary Progress Notes from August 23, 2013 at 10:25 a.m. through August 24, 2013 at 12 3:15 p.m., Plaintiff displayed "no self-harm" while was at the holding area prior to his transfer to Northern District of California United States District Court 13 MHCB. Id. at 20; Mahan Decl., Ex. A at 16. 14 According to Plaintiff's Admission Assessment at MHCB dated August 24, 2013 at 3:15 15 p.m., his aforementioned suicidal "plan" was "to take a lot of pills. . . ." Mahan Decl., Ex. A at 6, 16 7. According to the Nursing Care Record dated August 24, 2015, Plaintiff was moved to his cell 17 at MHCB and showed "no distress" and "no sign of self-harm." Id. at 12, 16. According to the 18 Restraint/Seclusion Record, Plaintiff was placed on suicide precaution with checks by nursing 19 staff every fifteen minutes beginning as soon as he was transferred to MHCB on August 24, 2013 20 at 3:15 p.m. through August 26, 2013 at 1:45 p.m., and he showed "no sign of self-harm." Id. at 21 17-18, 20-23, 27, 31-33, 36. 22 On August 26, 2013 around 2:00 p.m., Plaintiff underwent another IDTT review, and this 23 time the team included Plaintiff's primary clinicians, Defendants Brock (who also served as IDTT 24 leader) and Mahan. Id. at 33, 36, 39. The team drafted another 3-page "Mental Health Treatment 25 Plan." Id. at 40-42. The team again noted his diagnoses of "Mood Disorder, NOS," "Antisocial 26 Personality Disorder." Id. at 42. The team also noted as follows: 27. . . [Plaintiff] was admitted to the MHCB after making statements of self-harm and that he's been hoarding medications and subsequently 28 "I took a lot of pills" in front of medical staff. He was not sent to 7 6 [an] outside hospital and there was no evidence of OD. Upon 1 admission, he stated, "I can't take it anymore and I fell [sic] like taking myself out before someone else does." The [treatment] note 2 after admission indicates improvement in mood and that [Plaintiff] was focused on herring a housing change. When interviewed today, 3 he explained that certain custody officers were "out to get me cause I file a lot of lawsuits and 602's." He also stated he fears they will 4 kill him and make it look like a suicide. He denies thoughts of self- harm today and was more focused on problem[] solving about 5 housing. His mood appeared anxious, no evidence of thought disorder, though he may be paranoid. He has a history of 1 MHCB 6 admission for stated SI [suicidal ideation] secondary to frustration over an extended [ad-seg] placement. He carries a diagnosis of 7 Mood disorder, NOS and has reported psychotic symptoms, which are questionable. He has also been diagnosed with Narcissistic and 8 Antisocial Personality disorder. He was recently discharged from the EOP program (6/2013) after reaching "maximum benefit" and 9 cessation of depressive symptoms. He has no history of suicide attempt. Plan is to assess/treat at MHCB LOC [level of care] to 10 determine risk of self-harm and stabilize mood. He confirmed he didn't attempt suicide [and stated], "I just needed to vacate the 11 premises."4 12 Id. at 40 (footnote and brackets added). According to the IDTT-Level of Care Decision dated Northern District of California United States District Court 13 August 26, 2013, Plaintiff was to remain at his current placement at the MHCB after his IDTT 14 review5 and was "not being referred to a higher LOC because [he] is being treated and evaluated at 15 the MHCB and DSH placement is being considered. . . but not indicated until further clinical 16 assessment is conducted including medication adjustment." Id. at 43. The specific treatment 17 modifications to the treatment plan were as follows: "medication management (as applicable) and 18 individual psychotherapy, continued assessment of risk of self-harm and veracity/severity of slated 19 symptoms." Id. 20 According to the Nursing Care Records, Plaintiff was monitored frequently (a time frame 21 22 4 The Court notes that the last sentence is handwritten at the end of this typed summary. 23 Mahan Decl., Ex. A at 40. In his opposition, Plaintiff refers to this last statement and claims that he "never did make that statement." Dkt. 24 at 3. Plaintiff also points to Dr. Sardy's Suicide Risk 24 Evaluation dated August 24, 2013 in which the box is checked next to "Recent serious suicide attempt." Id. at 3 (citing Mahan Decl., Ex. A at 1). Dr. Sardy did not further elaborate and failed 25 to mention any recent suicide attempt under the section labeled, "Additional Details." Id. at 2. Instead, Dr. Sardy indicated that Plaintiff was being evaluated because he made a statement that he 26 was suicidal. Id. 5 27 In Plaintiff's Mental Health Plan dated August 26, 2013, next to the section labeled, "VII. TRANSFER/DISCHARGE TO:" the box next to "EOP" was incorrectly checked. Mahan Decl., 28 Ex. A at 40. The record shows that Plaintiff remained in the MHCB after his IDTT review. Id. at 43. 8 6 1 that ranged from every one to two hours) beginning after his IDTT review on August 26, 2013 at 2 2:30 p.m. through September 3, 2013 at 3:30 p.m., and he showed neither signs of distress nor 3 self-harm. Id. at 33, 36, 46, 49, 50, 52, 53, 60, 61, 64, 65, 68, 69, 72, 74, 76, 77. He was also 4 interviewed daily by various clinicians, including Defendants as indicated, during the following 5 dates: August 28, 2013 (Defendant Brock); August 29, 2013; August 30, 2013 (Defendant 6 Mahan); August 31, 2013; September 1, 2013 (Defendant Mahan); and September 2, 2013 7 (Defendant Mahan). Id. at 47, 56, 58, 62, 66, 70. Plaintiff largely focused on addressing his 8 housing situation rather than his mental state. Brock Decl. ¶ 10. Plaintiff reported, "I'm suicidal" 9 on a daily basis, but clinicians noted that he was frequently seen smiling, laughing, and engaging 10 with staff. Mahan Decl., Ex. A at 35, 49-50, 58, 64-66, 69-70, 72. Plaintiff also requested a 11 transfer to the DSH, and he threatened legal action against mental health providers when they 12 suggested he raise his housing concerns with custody staff. Brock Decl. ¶ 10. Plaintiff reported Northern District of California United States District Court 13 that he would attempt suicide by taking pills if he were discharged from the MHCB, stating that 14 "he doesn't have pills but plans to collect them." Mahan Decl., Ex. A at 68, 72. Mental health 15 providers ultimately determined that Plaintiff was not demonstrating any indication of genuine 16 depression or psychosis. Id. at 84; Brock Decl. ¶ 10. They concluded instead that Plaintiff was 17 using suicidality to effect changes in his housing and custody situation. Id. 18 2) September 3, 2013 – Discharge from MHCB 19 On September 3, 2013 around 2:30 p.m., Plaintiff underwent his final IDTT review for his 20 "discharge evaluation," and the team included Defendant Brock and another psychologist, Dr. M. 21 Rowe.6 Mahan Decl., Ex. A at 81, 83. The team drafted a one-page "Mental Health Crisis Bed 22 Discharge Summary" and a two-page IDTT-Level of Care Decision, both dated September 3, 23 2013, in which the team determined that Plaintiff should be discharged from the MHCB. Id. at 24 82-84. Regarding Plaintiff's "Response to Treatment" at the MHCB, the team noted as follows: 25 During his admission, there was no significant changes in 26 6 27 The "Committee members" for the IDTT review for Plaintiff's "discharge evaluation" on September 3, 2013 also listed the following: Psychiatrist K. Rastegari; CCI D. Rocha; and 28 Defendant Mahan. Mahan Decl., Ex. A at 81. However, the Court notes that only Defendant Brock and Dr. Rowe signed the IDTT Level of Care Decision dated September 3, 2013. Id. at 83. 9 6 [Plaintiff's] clinical presentation through he did begin to endorse 1 "I'm suicidal" on a daily basis. He continually reported that he fears for his safety if returned to housing. During daily 1:1 contacts he 2 specifically states "I'm still suicidal, nothing has changed. I'm [sic] won't go back to that building." He then asked to go to DSH. 3 When various clinicians explained that housing & safety concerns need to be addressed with custody he began to threaten lawsuits 4 against mental health providers stating "You guys will be held liable if I tell you my life is in danger and you still send me back to my 5 building," then held up court documents [relating to] other people he has sued. Despite his threats of self-harm, there is no indication of 6 genuine depression or psychosis and it's evident that this patient continues to use suicidality or the threat of such to achieve his ends 7 with housing, custody, etc. Due to incongruency between his statements and his clinical presentation, along with a clear desire to 8 affect his housing situation, he has reached maximum benefit at the MHCB and is appropriate for discharge. 9 Id. at 84. After his IDTT review, at 4:30 p.m., Plaintiff refused when he was asked to sign the 10 "Nursing Summary and Discharge Instructions," which included the following summary: ". . . No 11 injurious behaviors throughout in patient stay. Discharged to EOP/Ad-seg. Diagnosed [with] 12 Northern District of California Adjustment D/O [Disorder] [with] Anxiety. [Plaintiff] stable and medically cleared to return to United States District Court 13 housing. Mental health follow up per treatment plan. [Plaintiff] acknowledged." Id. at 86 14 (brackets added). 15 3) September 3, 2013 – First Suicidal Thoughts After Discharge 16 On September 3, 2013 at approximately 6:00 p.m., during the escort back to his housing 17 unit, Plaintiff told custody officers that he was still having suicidal thoughts and did not want to 18 return to ad-seg. Van Loh Decl., Ex. B at 26-27. As a result, the officers took Plaintiff to the 19 CTC, where he reported to nursing staff that he "did not want to go to ad-seg" and stated: "I'm 20 suicidal." Id. at 26. Nursing staff noted that Plaintiff was "smiling while talking to staff," but 21 nevertheless referred him for an MHCB admission evaluation. Id. at 27-28. Plaintiff was again 22 placed on suicide precaution for the night and given a safety smock, safety blanket, as well as a 23 safety mattress. Id. at 28. According to the Interdisciplinary Progress Notes from September 3, 24 2013 at 6:00 p.m. through September 4, 2013 at 8:30 a.m., Plaintiff displayed "no self-harm" 25 during the periodic fifteen-minute checks while he waited to be evaluated. Id. at 28-32. 26 On September 4, 2013 at 8:30 a.m., Defendant Brock and Dr. Rowe, conducted a suicide- 27 risk assessment of Plaintiff, concluding that both his chronic and acute risks of suicide were 28 10 6 1 "low." Id. at 33-34. In the Suicide Risk Evaluation dated September 4, 2013, Defendant Brock 2 and Dr. Rowe noted as follows under the section labeled, "Justification of Risk Level:" 3 CHRONIC RISK: [Plaintiff] has no personal or familial history of suicide attempts or SIB [Self-Injurious Behavior]. He has no major 4 mental illness (prescribed Straterra only for ADHD), and several demographic and protective factors including a parole date in 2020 5 to which he feels positive about. His Chronic risk appears LOW. 6 ACUTE RISK: Currently, there is no indication of genuine ideation/intent to self-harm. He does not appear depressed, no 7 evidence of a psychotic disorder, is not hopeless or despondent and is mainly focused on keeping himself safe. It is clear he is utilizing 8 some MH resources in an attempt to affect his housing situation due to perceived threats from custody staff in his building. His self- 9 reported OD appears dubious as there is no substantiating medical evidence. His Acute risk appears LOW. 10 Id. at 34 (brackets added). Plaintiff's "Treatment Plan" was as follows: "Return to housing with 11 5-day/24-hour follow up. Consult with PC regarding ongoing issues with custody. Refer to PBST 12 Northern District of California [Positive Behavior Support Team] if patient continues to utilize CTC to address custody/safety United States District Court 13 issues." Id. At approximately 9:00 a.m., Plaintiff was cleared for release from the CTC. Id. at 14 35. 15 4) September 4, 2013 – Second Suicidal Thoughts After Discharge 16 On September 4, 2013 at approximately 1:40 p.m., Plaintiff returned to the CTC because 17 he was again having suicidal thoughts. Id. at 36. He said, "I don't feel like living anymore. No 18 one cares about me." Id. Nursing staff noted that Plaintiff showed "no sign of injury" and was 19 smiling and talking with custody staff and other inmates. Id. at 36-37. Plaintiff was referred to 20 the MHCB for an admission evaluation, and he was again placed on suicide precaution pending 21 the evaluation. Id. at 38. According to the Triage & Treatment Services Flow Sheet from 22 September 4, 2013 at 1:40 p.m. through September 5, 2013 at 8:00 a.m., Plaintiff demonstrated no 23 distress and displayed "no self-harm." Id. at 37, 39-43. At approximately 8:00 a.m., Defendants 24 conducted another suicide-risk assessment of Plaintiff, and concluded that both his chronic and 25 acute risks of suicide were "low." Id. at 44. According to the Suicide Risk Evaluation dated 26 September 5, 2013, Defendants Brock's and Mahan's notes under the section labeled, 27 "Justification of Risk Level" are almost identical to the assessments made by Defendant Brock and 28 11 6 1 Dr. Rowe the day before, on September 4, 2013. Compare id. at 45 to id. at 34. In sum, because 2 Plaintiff showed no change in his mental state or evidence of psychosis since his previous 3 discharge from the MHCB, his mood was stable, and he was future-oriented, Defendants again 4 concluded that Plaintiff's threat of suicide was not genuine. Id. at 45. Defendants cleared him to 5 return to his housing unit. Id. at 42, 45-46. According to the Interdisciplinary Progress Notes 6 dated September 5, 2013, Plaintiff did not seem to be cooperative when being moved out of his 7 CTC cell because at 9:05 a.m. "per custody [Plaintiff] [was] to be cell extracted [but] advised [he] 8 is mod[erate] to high risk for asthma," and at 10:25 a.m. "[Plaintiff] spoke to [Defendant] Brock 9 and agreed to come out of CTC 115 [and to be] ambulated back to D2 custody [his housing unit]." 10 Id. at 47 (brackets added). 11 5) September 5, 2013 – Suicidal Thoughts After Return to Housing Unit 12 On September 5, 2013 at 11:00 a.m., after he was discharged from CTC but before custody Northern District of California United States District Court 13 staff could remove Plaintiff from the holding cell, Plaintiff again "reported he was suicidal to a 14 passing RN [registered nurse]." Id. at 48-49. Dr. Capre conducted another suicide-risk 15 assessment of Plaintiff. Id. Plaintiff reported that his suicide "plan" was to "fish for medications 16 and then OD," which meant that he intended to obtain medications from other inmates so that he 17 could OD. Id. at 49. Plaintiff added that he could also "cheek" his own medications, which meant 18 that he would not swallow his medications and instead keep them in order to take them all at once 19 and OD. Id. Dr. Capre notified custody staff that Plaintiff should be placed in a management cell 20 to prevent him from obtaining medications from other inmates, and she notified nursing staff that 21 Plaintiff might try to "cheek" his medication. Id. Dr. Capre noted that Plaintiff had no 22 documented history of suicide attempts, and that his claimed OD on August 23, 2013, was not 23 verified. Id. Dr. Capre further noted that Plaintiff had been stable between June 13 and the date of 24 his alleged OD on August 23, 2013, stating as follows: 25 From 6/13/13 to 8/23/13, while on this clinician's case-load, [Plaintiff] has been stable and had reported, "I don't have a mental 26 illness and do not have any MH symptoms. All of my problems are with the Courts." On 8/16/13, [Plaintiff] asked to be sent to DSH 27 because he has anger problems. The following week, he was informed that he would not be send to DSH. It is likely that 28 [Plaintiff] is reporting SI [suicidal ideation], intent, and plan because 12 6 he wants to be sent to DSH.7 1 Id. (footnote and brackets added). Dr. Capre concluded that both his chronic and acute risks of 2 suicide were "low." Id. According to the Suicide Risk Evaluation dated September 5, 2013, Dr. 3 Capre noted as follows under the section labeled, "Justification of Risk Level:" 4 Chronic: Low: No documented history of suicide attempts. 5 [Plaintiff] is future oriented. [Plaintiff] participates in MH treatment. 6 Acute: Low: After assessing [Plaintiff] and consulting with Dr. 7 Brock (CTC) and Ms. Isaacs, Sgt. Garcia was notified that [Plaintiff] was cleared to return to his cell. Approximately 15 minutes after 8 clearing [Plaintiff] and while he was still in the holding cell, [Plaintiff] reported he was suicidal to a passing RN and another 9 referral was generated. This clinician met with [Plaintiff]. [Plaintiff] reported that his thoughts of suicide were the same as 10 when he was cleared at CTC and the same as 15 minutes earlier. [Plaintiff] was again cleared to return to his cell. 11 Id. (brackets added). Plaintiff was referred to the Positive Behavioral Support Team "in order to 12 Northern District of California develop a specialized behavioral plan to keep [Plaintiff] safe as well as lessen his utilization of United States District Court 13 MHCB." Id. (brackets added). 14 At approximately 1:30 p.m., the same day, Plaintiff again stated that he was having 15 suicidal thoughts to custody staff. Id. at 50-53. Plaintiff was initially placed in a holding cell in 16 his housing unit, where another psychologist, Dr. J. Swearengin, conducted a suicide-risk 17 assessment. Id. at 52. Plaintiff reported that he would hang himself if returned to his cell, stating 18 to the clinician: "I'm suicidal, do your job and send me to CTC. I'll hang myself." Id. Plaintiff 19 added that he "ha[d] the means to hang himself, denies having a cell-mate, and said he overdosed 20 on Strattera approximately one week ago." Id. at 52. After speaking with various custody staff 21 and mental health clinicians, Dr. Swearengin recommended that Plaintiff be taken to the CTC for 22 further evaluation. Id. at 51-53. Upon his arrival at the CTC, Plaintiff stated to nursing staff, "I'm 23 here because I didn't get my lunch." Id. at 54. He was referred for an MHCB admission 24 evaluation, placed on suicide precaution, and given a safety smock, safety blanket, as well as a 25 safety mattress. Id. at 54-61. According to the Triage & Treatment Services Flow Sheet and the 26 27 7 28 During his deposition, Plaintiff testified that he wanted to transfer to the DSH in order to spend more time "out of [his] cell" instead of being "stuck in a cell." Plaintiff's Dep. 50:1-15. 13 6 1 Interdisciplinary Progress Notes from September 5, 2013 at 3:55 p.m. through September 4, 2013 2 at 8:30 a.m., Plaintiff displayed "no self-harm" during the periodic fifteen-minute checks while he 3 waited to be evaluated. Id. at 55, 57-62. 4 At approximately 9:30 a.m. on September 6, 2013, Defendant Mahan conducted a suicide- 5 risk assessment of Plaintiff. Id. at 63-64. According to the Suicide Risk Evaluation dated 6 September 6, 2013, Dr. Mahan noted as follows: 7 [Plaintiff] was referred to TTA [Triage and Treatment Area] for evaluation after he made suicidal statement: "I'm suicidal, 8 homicidal." Custody reported that [Plaintiff] refused to follow directions following transfer to TTA. [Plaintiff] described his mood 9 as "good" with agitated affect. [Plaintiff] stated, "I'm done with you dude," "I wanna go back, get the police and send me back to my 10 housing" and refused to cooperate. [Plaintiff] [was] informed that i[f] he wanted to go back to his housing he would need to cooperate 11 with this interview. [Plaintiff] stated he would pursue legal action if he was sent back to his housing, where he directly stated he wanted 12 to go. [Plaintiff] informed that he could try to purse legal actions Northern District of California United States District Court and that that was his prerogative. [Plaintiff] then stated he would 13 [be] cooperative, but remained combative. [Plaintiff] stated, when asked, "I'm suicidal," with a big smile on his face (apparently trying 14 now to laugh), and stated, "now you have to admit me, man," "you underestimated how smart I am, bro." Upon further inquiry, though, 15 [Plaintiff] could not articulate his thoughts regarding self-harm. [Plaintiff] indicated having no plan, or true intent. [Plaintiff] has 16 never tried to harm himself, and has stated in the past that he is simply using Mental Health in order to get his housing changed. 17 When asked about getting his housing changed, [Plaintiff] refused to respond to questions on this subject. [Plaintiff] then made 18 statements that he wanted to go back to housing. When asked about his previous statements of being, "suicidal, homicidal," and whether 19 or not he was still homicidal, [Plaintiff] indicated "that's not a problem anymore, man." [Plaintiff] was encouraged to continue to 20 follow custody directions. 21 Id. at 64. Defendant Mahan cleared Plaintiff to "return to housing [unit] with 24 hour custody and 22 five day Mental Health follow ups." Id. 23 6) Follow-up Evaluations 24 During the five-day follow ups from September 7, 2013 through September 11, 2013, 25 Plaintiff did not attempt to commit suicide and reported to mental health staff that he was "good." 26 Id. at 66. 27 During the remainder of 2013, Plaintiff consistently denied having suicidal thoughts. Id. at 28 66-95. 14 6 7) Incidents of Alleged Suicidal Thoughts or Attempts in 2014 and 2015 1 In 2014, Plaintiff twice reported attempting suicide by overdosing on pills, and he was 2 taken to an outside hospital. Id. at 96. His toxicology reports were negative, and the outside 3 hospital reported that Plaintiff's stomach contents did not contain any type of medication or toxic 4 substance. Id. Plaintiff was briefly transferred to the DSH in April 2014. Id. at 102. His medical 5 records indicate that he was returned because of a "lack of symptoms observed." Id. Plaintiff 6 reported that he was having suicidal thoughts on May 23 and 24, 2014, and medical providers 7 noted that his frequent trips to the MHCB were related to his housing situation rather than genuine 8 "suicidal ideation." Id. at 98, 100. On June 23, 2014, Plaintiff threatened to "go suicidal" if the 9 custody staff did not give him soy milk because "I can get soy milk at the crisis bed since they will 10 give it to me there." Id. at 105. 11 In 2015, Plaintiff was again admitted to the MHCB after he reported that he had a plan to 12 Northern District of California commit suicide by hanging himself with a bed sheet on July 25, 2015. Van Loh Decl., Ex. B at United States District Court 13 106. Plaintiff "has reported multiple SAs [suicide attempts] in and out of prison (OD, cut himself, 14 and hanging) with [the] most recent on 5/15 via OD on meds leading to MHCB placement." Id. 15 However, as of September 3, 2015, Plaintiff's medical record shows "no verification of this or any 16 other SA [suicide attempt] while incarcerated." Id. 17 B. Legal Standard 18 Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 19 that there is "no genuine issue as to any material fact and that the moving party is entitled to 20 judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the 21 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a 22 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 23 the nonmoving party. Id. 24 The party moving for summary judgment bears the initial burden of identifying those 25 portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine 26 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 27 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 28 15 6 1 reasonable trier of fact could find other than for the moving party. On an issue for which the 2 opposing party by contrast will have the burden of proof at trial, as is the case here, the moving 3 party need only point out "that there is an absence of evidence to support the nonmoving party's 4 case." Id. at 325. 5 Once the moving party meets its initial burden, the nonmoving party must go beyond the 6 pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a 7 genuine issue for trial." Fed. R. Civ. P. 56(e). The court is only concerned with disputes over 8 material facts and "factual disputes that are irrelevant or unnecessary will not be counted." 9 Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine 10 issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party 11 has the burden of identifying, with reasonable particularity, the evidence that precludes summary 12 judgment. Id. If the nonmoving party fails to make this showing, "the moving party is entitled to Northern District of California United States District Court 13 a judgment as a matter of law." Celotex, 477 U.S. at 323. 14 A district court may only consider admissible evidence in ruling on a motion for summary 15 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 16 In support of the motion for summary judgment, Defendants have presented their own declarations 17 as well as a declaration from their attorney, Sara D. Van Loh, Esq., along with various supporting 18 exhibits. Dkts. 18-20, 23.8 Meanwhile, Plaintiff has filed his verified complaint and opposition. 19 Dkts. 1, 24. The Court construes his complaint as an affidavit under Federal Rule of Civil 20 Procedure 56, insofar as it is based on personal knowledge and sets forth specific facts admissible 21 in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 22 23 8 24 Defendants have filed a "Notice of Errata re: Motion for Summary Judgment," in which they identified two errors in the documents submitted in support of the motion. Dkt. 23. These 25 errors include: (1) a custodian-of-records declaration that contained a typographical error mistakenly identifying the declarant as "J. DeLaCruz," see Van Loh Decl., Ex. A; and (2) their 26 Separate Statement of Undisputed Facts, which contained certain incorrect citations to the record, see Dkt. 17. In ruling on the motion for summary judgment, the Court will consider: (1) the 27 revised custodian-of-records declaration, properly identifying the declarant as "C. Hao," Dkt. 23-1 at 2; and (2) the Amended Separate Statement of Undisputed Facts, which contains correct 28 citations to the record, Dkt. 23-2 at 2-9. 16 6 C. Discussion 1 1. Deliberate Indifference to Medical Needs Claim 2 The Eighth Amendment protects prisoners from inhumane conditions of confinement. 3 Farmer v. Brennan, 511 U.S. 825, 832 (1994). The government has an "obligation to provide 4 medical care for those whom it is punishing by incarceration," and failure to meet that obligation 5 can constitute an Eighth Amendment violation cognizable under section 1983. Estelle v. Gamble, 6 429 U.S. 97, 103-105 (1976). 7 In order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff 8 must show "deliberate indifference" to his "serious medical needs." Estelle, 429 U.S. at 104. 9 "This includes 'both an objective standard—that the deprivation was serious enough to constitute 10 cruel and unusual punishment—and a subjective standard—deliberate indifference.'" Colwell v. 11 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). 12 Northern District of California To meet the objective element of the standard, a plaintiff must demonstrate the existence of United States District Court 13 a serious medical need. Estelle, 429 U.S. at 104. A "serious medical need[]" exists if the failure 14 to treat a prisoner's condition could result in further significant injury or the "[u]nnecessary and 15 wanton infliction of pain." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citing 16 Estelle, 429 U.S. at 104), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 17 F.3d 1133, 1136 (9th Cir. 1997) (en banc). The existence of an injury that a reasonable doctor or 18 patient would find important and worthy of comment or treatment; the presence of a medical 19 condition that significantly affects an individual's daily activities; or the existence of chronic and 20 substantial pain are examples of indications that a prisoner has a "serious" need for medical 21 treatment. McGuckin, 974 F.2d 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 22 (9th Cir. 1990)). 23 To satisfy the subjective element, the plaintiff must show that "the official knows of and 24 disregards an excessive risk to inmate health or safety; the official must both be aware of facts 25 from which the inference could be drawn that a substantial risk of serious harm exists, and he must 26 also draw the inference." Farmer, 511 U.S. at 837. A Plaintiff must establish that the course of 27 treatment the doctors chose was "medically unacceptable under the circumstances" and that they 28 17 6 1 embarked on this course in "conscious disregard of an excessive risk to [Plaintiff's] health." See 2 Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004) (citing Jackson v. McIntosh, 90 F.3d 3 330, 332 (9th Cir. 1996). A claim of mere negligence related to medical problems, or a difference 4 of opinion between a prisoner patient and a medical doctor, is not enough to make out a violation 5 of the Eighth Amendment. Id. 6 Here, Plaintiff claims that Defendants were deliberately indifferent to his medical needs 7 when they discharged him from the MHCB, "only to have him return after attempting to commit 8 suicide on two more occasions. . . on September 3 and 4, 2013." Dkt. 1 at 3. Specifically, 9 Plaintiff claims he "swallow[ed] pills" on September 3, and he "tr[i]ed d[y]ing by hanging" on 10 September 4. Id.9 Plaintiff claims that Defendants "purposely discharged [him] wrongfully 11 because they needed more room for other inmates that were suicidal."10 Id. 12 Meanwhile, Defendants argue that the "critical question" is whether Plaintiff has "provided Northern District of California United States District Court 13 sufficient evidence to show that he was suffering a mental health crisis requiring 24-hour inpatient 14 hospitalization in September 2013." Dkt. 25 at 1. Defendants contend that even after reviewing 15 Plaintiff's opposition, "the answer must be no." Id. Upon reviewing the papers and the evidence 16 in this case, the Court agrees. As further explained below, this Court finds that because Plaintiff 17 cannot show that he required inpatient hospitalization after he was discharged from the MHCB by 18 Defendants in September 2013, he also cannot show that Defendants were deliberately indifferent 19 to his serious medical needs by declining to keep him hospitalized. 20 21 9 During his deposition, Plaintiff could not remember how he attempted suicide (i.e., he 22 was "not sure" about the manner in which he attempted suicide) during the two incidents that occurred on September 3 and 4, 2013. Plaintiff's Dep. 70:6-83:7. 23 10 In his opposition, Plaintiff also argues that Defendant Brock could not unilaterally 24 discharge him from the MHCB because it he was "braking [sic] the rules & regulations" of the prison. Dkt. 24 at 3 (citing Ex. A, California Code of Regulations, Title 15, § 3365(a)(3) 25 ("Discharge from suicide watch or suicide precaution shall occur when an interdisciplinary team of clinicians determines that the inmate no longer presents a suicide risk.")). However, the record 26 shows that the decision to discharge Plaintiff on September 3, 2013 was made by the IDTT, which was a team that included Defendant Brock and Dr. Rowe. Mahan Decl.; Ex. A at 81-84. In any 27 event, a violation of the prison's regulations, alone, would not support a constitutional claim. See Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) ("To the extent that the violation of a state law 28 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress.") (citations omitted). 18 6 a. Serious Medical Need 1 While the medical records seem to be unclear as to whether or not Plaintiff had attempted 2 suicide on August 23, 2013 (when he was initially admitted to the MHCB), compare Mahan Decl., 3 Ex. A at 1 with id. at 2, 19, 40, it is not necessary for the Court to confirm whether this August 4 2013 incident occurred because it is not relevant as to whether Defendants' actions amounted to 5 deliberate indifference when they discharged Plaintiff from the MHCB and caused him to 6 allegedly attempt suicide in September 2013. 7 Upon careful review of Plaintiff's medical records, the Court finds that—contrary to his 8 allegations in the complaint—Plaintiff did not attempt suicide or otherwise harm himself on the 9 two other dates alleged on his complaint: September 3 and 4, 2013 (both after his discharge from 10 the MHCB). See Van Loh Decl., Ex. B at 26-95. As such, Plaintiff has failed to submit evidence 11 that he suffered any injury as a result of Defendants' conduct of discharging him, or that he faced 12 Northern District of California a substantial risk of a serious injury after his discharge. Plaintiff has also failed to submit United States District Court 13 evidence suggesting that Defendants believed his discharge from the MHCB in September 2013 14 posed a substantial risk of serious harm. In both his complaint and opposition, Plaintiff 15 speculates, without evidentiary support, that a lack of bed space led to his discharge, rather than a 16 reasoned decision by medical staff. See Dkt. 1 at 3; Dkt. 24 at 7-8. By contrast, the evidence 17 shows that Defendants (along with other mental health providers) exercised their professional 18 judgment and concluded that Plaintiff was not experiencing a genuine mental health crisis, that he 19 was not a danger to himself or others, and that he did not require 24-hour inpatient care at the 20 MHCB. Even if the record shows that Plaintiff claimed to have suicidal thoughts (as opposed to 21 attempt suicide) after being discharged, the record shows that Defendants provided adequate care 22 to Plaintiff, as explained below. 23 First, Plaintiff alleges that he attempted suicide by swallowing pills on September 3, 2013 24 after his discharge from the MHCB. Dkt. 1 at 3. To the contrary, Plaintiff's medical records show 25 that there was no suicide attempt on September 3, 2013, and instead, at approximately 6:00 p.m., 26 during the escort back to his housing unit, Plaintiff told custody officers that he was still having 27 suicidal thoughts and did not want to return to ad-seg. Van Loh Decl., Ex. B at 26-27. As a result, 28 19 6 1 the officers took Plaintiff to the CTC, where he reported to nursing staff that he did not want to go 2 to ad-seg and stated: "I'm suicidal." Id. at 26. The triage nurse noted that Plaintiff was "smiling 3 while talking to staff" and had "no sign of injury." Id. at 26-27. He was placed in a holding cell 4 on suicide precaution from September 3, 2013, at approximately 6:00 p.m. until the following 5 morning. Id. at 28-32. At 8:30 a.m. on September 4, 2013, Defendant Brock and Dr. Rowe 6 evaluated Plaintiff and concluded that both his chronic and acute risks of suicide were low. Id. at 7 33-34. At approximately 9:00 a.m., they cleared Plaintiff for release back to his housing unit. Id. 8 at 35. Thus, the record shows that at no point during this time did Plaintiff attempt suicide or 9 harm himself by swallowing pills. See id. at 26-35. 10 Second, Plaintiff next alleges that he attempted suicide by trying to hang himself on 11 September 4, 2013, after returning to his housing unit. Dkt. 1 at 3. However, once again, his 12 medical records refute his claim. They demonstrate that on September 4, 2013 at approximately Northern District of California United States District Court 13 1:40 p.m., Plaintiff returned to the CTC because he was again having suicidal thoughts. Van Loh 14 Decl., Ex. B at 36. Plaintiff made the statement: "I don't feel like living anymore. No one cares 15 about me." Id. Nursing staff noted that Plaintiff showed "no sign of injury," and he was smiling 16 and talking with custody staff and other inmates. Id. at 36-37. Plaintiff was referred to the MHCB 17 for an admission evaluation, and he was again placed on suicide precaution pending the 18 evaluation. Id. at 38. He demonstrated no distress and exhibited "no self-harm." Id. at 39-42. 19 Defendants evaluated Plaintiff the following morning, September 5, 2013, at approximately 8:00 20 a.m. Id. at 44. Because Plaintiff showed no change in his mental state or evidence of psychosis 21 since his previous discharge, his mood was stable, he was eating and sleeping normally, and he 22 was future-oriented, Defendants again concluded that Plaintiff's threats of suicide were not 23 genuine. Id. at 45. Defendants cleared him to return to his housing unit. Id. at 45-46. The record 24 shows that Plaintiff did not attempt suicide by trying to hang himself or otherwise harm himself at 25 any point on September 4, 2013. Id. at 39-40. 26 On September 5, 2013, Plaintiff twice reported that he was having suicidal thoughts, and 27 he was assessed by two different clinicians. Id. at 48-49, 50-53. After consulting with the MHCB 28 staff, the first clinician cleared Plaintiff to return to his cell at approximately 11:00 a.m. Id. at 48- 20 6 1 49. Two hours later, another clinician evaluated Plaintiff after he again reported to custody 2 officers that he was having suicidal thoughts. Id. at 51-53. Specifically, Plaintiff reported that "he 3 is suicidal with a plan to hang himself with a sheet in his cell." Id. at 53. Thus, the record shows 4 that Plaintiff did not attempt to hang himself; he just said that he had a plan to do so. In an 5 abundance of caution, the clinician instructed custody staff to escort Plaintiff to CTC where he 6 was again referred for an MHCB evaluation and placed on suicide precaution. Id. at 53, 56-57. 7 The record shows that Plaintiff did not attempt suicide by trying to hang himself or otherwise 8 harm himself on September 5, 2013. Id. at 57-62. 9 At approximately 9:30 a.m. on September 6, 2013, Defendant Mahan again evaluated 10 Plaintiff for admission to the MHCB. Id. at 63-64. Plaintiff reported, "I'm suicidal," with a big 11 smile on his face, apparently trying not to laugh. Id. at 64. He then stated, "Now you have to 12 admit me, man," and "You underestimated how smart I am, bro." Id. But Plaintiff could not Northern District of California United States District Court 13 articulate his suicidal thoughts and acknowledged no plan or true intent. Id. Plaintiff then stated, 14 "I'm done with you dude" and asked to be returned to his housing unit. Id. Defendant Mahan 15 cleared him for release to his housing unit. Id. Plaintiff did not try to commit suicide after 16 returning to his cell. Mahan Decl. ¶ 10; Van Loh Decl., Ex. B at 66. In the days following his 17 discharge, Plaintiff reported to mental health staff that he was "good." Van Loh Decl. Ex. B at 66. 18 For the remainder of 2013, Plaintiff consistently denied having suicidal thoughts. Id. at 66-95. In 19 2014 and 2015, while Plaintiff had instances of having suicidal thoughts and making (unverified) 20 suicide attempts, the record shows that he continued to receive the requisite evaluations and 21 mental health treatment following each instance, including admission at DSH in April 2014. Id. at 22 96-106. And, as mentioned above, as of September 3, 2015, Plaintiff's medical record shows no 23 verification of any suicide attempt by Plaintiff during his incarceration.11 Id. 24 In his opposition, Plaintiff generally argues that the medical records are "unclear if [he] 25 11 26 As mentioned above, Dr. Sardy's Suicide Risk Evaluation dated August 24, 2013 indicated that Plaintiff had a "recent serious suicide attempt." Mahan Decl., Ex. A at 1. However, 27 Plaintiff's medical record contains no verification of such a suicide attempt prior to August 24, 2013, and, in any event, it does not affect the Court's analysis because Plaintiff has failed to 28 submit evidence relating to the more relevant alleged suicide attempts in September 2013 after he was discharged from the MHCB. 21 6 1 hurt himself every time he was sent back to his cell" without referencing particular portions of the 2 records or identifying a single instance where the records suggest that he suffered some injury 3 after his discharge. Dkt. 24 at 8. Plaintiff also contends that Defendants' decision to discharge 4 him is sufficient to establish a constitutional violation, regardless of whether or not he actually 5 attempted to harm himself, because he potentially "could [have] hurt himself." Id. However, at a 6 minimum, Plaintiff must show that he suffered some injury as a result of Defendants' conduct to 7 state a constitutional claim. See Hudson v. McMillian, 503 U.S. 1 (1992) (finding allegations of 8 de minimis pain are insufficient to demonstrate deliberate indifference). Whether Plaintiff 9 theoretically could have hurt himself after being released from the MHCB does not amount to a 10 constitutional violation. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("[A] 11 plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than 12 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not Northern District of California United States District Court 13 do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.") 14 (citations omitted). 15 In sum, Plaintiff has put forth no evidence to demonstrate that he attempted suicide on 16 September 4 or September 5, or that he was harmed in any way by Defendants' decision to 17 discharge him from the MHCB in September 2013. All Plaintiff has presented is a conclusory 18 statement in his verified complaint that he attempted suicide on those dates. See Dkt. 1 at 3. 19 Under Scott v. Harris, 550 U.S. 372 (2007), "[w]hen opposing parties tell two different stories, 20 one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a 21 court should not adopt that version of the facts for purposes of ruling on a motion for summary 22 judgment." Id. at 380-83 (police officer entitled to summary judgment based on qualified 23 immunity in light of video evidence capturing plaintiff's reckless driving in attempting to evade 24 capture which utterly discredits plaintiff's claim that there was little or no actual threat to innocent 25 bystanders). After reviewing Plaintiff's medical records, the Court finds that no reasonable juror 26 could conclude that Plaintiff repeatedly attempted suicide after he was discharged in September 27 2013. Instead, as further explained below, the record shows that Plaintiff continued to receive 28 adequate mental health treatment from Defendants, who evaluated him each time he expressed that 22 6 1 he was having suicidal thoughts. Therefore, Plaintiff cannot show an objectively "serious" 2 medical need that required his placement in the MHCB. See McGuckin, 974 F.2d 1059-60. 3 b. Deliberate Indifference 4 Even if he could have shown the existence of a serious medical need, Plaintiff has failed to 5 carry his burden of raising a genuine issue of fact to support his claim that Defendants' actions 6 rose to the level of deliberate indifference to his serious medical needs. See Farmer, 511 U.S. at 7 837. Although Plaintiff, in his complaint, alleges that Defendants discharged him "wrongfully" 8 and such actions led to his unverified suicide attempts or suicidal thoughts, see Dkt. 1 at 3, the 9 record reflects otherwise. Plaintiff presents no medical evidence that any such injury was the 10 result of Defendants' actions. Plaintiff's allegations in the complaint that Defendants' decision to 11 discharge him led to such injuries (or even theoretically could have led to suicide attempts) is 12 conclusory in nature and insufficient to create a genuine issue of fact. See Marks v. United States, Northern District of California United States District Court 13 578 F.2d 261, 263 (9th Cir.1978) ("Conclusory allegations unsupported by factual data will not 14 create a triable issue of fact.") (citation omitted); see, e.g., Toguchi, 391 F.3d at 1058 (summary 15 judgment in favor of defendant doctor appropriate as to conclusory claim that doctor failed to 16 adequately respond to respiratory arrest because record showed otherwise and such conclusory 17 assertions insufficient to raise issue of material fact); Arpin v. Santa Clara Valley Transp. Agency, 18 261 F.3d 912, 922 (9th Cir. 2001) (finding the district court did not err in granting summary 19 judgment because plaintiff failed to meet her burden of proof of providing specific facts to show 20 that the force used was unreasonable). 21 Even if Plaintiff's repeated claims of having suicidal thoughts could constitute a 22 substantial risk of serious harm, it was the professional opinion of Defendants that Plaintiff was 23 not actually suicidal or a danger to himself when they discharged him in September 2013. Brock 24 Decl. ¶ 15; Mahan Decl. ¶ 4. The MHCB is "intended for inmates who, as a result of serious 25 mental illness, either pose a danger to themselves or others, or they cannot function without 24- 26 hour care." Mahan Decl. ¶ 4. As his medical records show above, Plaintiff was discharged from 27 the MHCB because his clinicians did not believe that he was a danger to himself or others, and he 28 did not require the 24-hour mental health care that the MHCB provides. While he was admitted in 23 6 1 the MHCB, Plaintiff "did not appear to be psychotic or decompensating," and "his affect was 2 distinctly incongruent with his claims of depressed mood and suicidal ideation" as he "consistently 3 stated that he was suicidal during this time—while smiling and laughing. . . ." Mahan Decl. ¶¶ 4, 4 11. Plaintiff was "focused not on his mental health, but on problems he was having with custody 5 staff in [ad-seg]." Id. ¶ 4. His clinicians, including Defendants, concluded that Plaintiff was using 6 suicidality to effect changes in his housing and custody situation, and did not reflect genuine 7 "suicidal ideation." Brock Decl. ¶ 10; Mahan Decl. ¶¶ 4, 11; Van Loh Decl., Ex. B at 25, 34. 8 Prior to their decision to discharge him from the MHCB, Defendants carefully considered whether 9 Plaintiff was a danger to himself, and they concluded that he was not.12 Plaintiff has made no 10 showing that their course of action "was medically unacceptable under the circumstances," and 11 was chosen "in conscious disregard of an excessive risk to [his] health." Toguchi, 391 F.3d at 12 1058. Plaintiff may not agree with Defendants' decision to discharge him from the MHCB, but an Northern District of California United States District Court 13 inmate's disagreement with his medical treatment does not constitute deliberate indifference. See 14 id. at 1058-60 (showing of nothing more than a difference of medical opinion as to need to pursue 15 one course of treatment over another is insufficient, as a matter of law, to establish deliberate 16 indifference); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (difference of opinion as to 17 which medically acceptable course of treatment should be followed does not establish deliberate 18 indifference). 19 Accordingly, Plaintiff cannot prevail on his claim of deliberate indifference against 20 Defendants, and they are entitled to summary judgment on this claim as a matter of law. See 21 Celotex, 477 U.S. at 323. Therefore, their motion for summary judgment is GRANTED. 22 2. Qualified Immunity Defense 23 As an alternative basis for summary judgment, Defendants contend that they are entitled to 24 qualified immunity. Dkt. 16 at 19-20. "Qualified immunity shields an officer from suit when she 25 12 26 As explained above, the decision to discharge Plaintiff was based entirely on his clinical presentation, not on the availability of beds in the MHCB because had the beds been full, Plaintiff 27 would have been kept under observation and transferred to an MHCB at a different institution. See Brock Decl. ¶ 6. Plaintiff admits that he was transferred to an MHCB at a different institution 28 (California Health Care Facility) when the beds at SVSP's MHCB were full in March 2014. Plaintiff's Dep. 95:17-96:7. 24 6 1 makes a decision that, even if constitutionally deficient, reasonably misapprehends the law 2 governing the circumstances she confronted." Brosseau v. Haugen, 543 U.S. 194, 198 (2004). 3 The issue of qualified immunity generally entails a two-step process, which requires the court to 4 determine first whether the defendant violated a constitutional right, and then to determine 5 whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). 6 In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court modified the Saucier test 7 and "gave courts discretion to grant qualified immunity on the basis of the 'clearly established' 8 prong alone, without deciding in the first instance whether any right had been violated." James v. 9 Rowlands, 606 F.3d 646, 650-51 (9th Cir. 2010) (discussing Saucier standard after Pearson). The 10 relevant, dispositive inquiry in determining whether a right is clearly established is whether it 11 would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. 12 Saucier, 533 U.S. at 202; see, e.g., Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 Northern District of California United States District Court 13 (9th Cir. 2002) (court may grant qualified immunity by viewing all of the facts most favorably to 14 plaintiff and then finding that under those facts the defendants could reasonably believe they were 15 not violating the law). In the instant case, the Court has concluded that Plaintiff's constitutional 16 rights were not violated. Thus, viewing the record in the light most favorable to Plaintiff, 17 Defendants prevail as a matter of law on their qualified immunity defense because the record 18 establishes no Eighth Amendment violation. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 19 However, even if a constitutional violation occurred, these Defendants also remain entitled to 20 qualified immunity as to Plaintiff's deliberate indifference to medical needs claim. 21 While Plaintiff's right to be free from deliberate indifference to his serious medical needs 22 was clearly established in 2013, Defendants could have reasonably believed that their actions were 23 lawful. Plaintiff has failed to put forth evidence to demonstrate that he attempted suicide on 24 September 4 or September 5, or that he was harmed in any way by Defendants' decision to 25 discharge him from the MHCB in September 2013. Even if Plaintiff had suicidal thoughts after 26 his discharge, the record shows that he was immediately evaluated for admission in the MHCB 27 after each time he expressed such feelings, and that Defendants and his other mental health 28 providers exercised their professional judgment and concluded that Plaintiff was not experiencing 25 6 1 a genuine mental health crisis, that he was not a danger to himself or others, and that he did not 2 require 24-hour inpatient care at the MHCB. Plaintiff's claim that Defendants were deliberately 3 indifferent for discharging him from the MHCB amounts to nothing more than a difference of 4 opinion between medical staff and an inmate. Toguchi, 391 F.3d at 1058-60; Sanchez, 891 F.2d at 5 242. Thus, a reasonable medical staff member in the place of Defendants could have believed that 6 such a decision did not violate Plaintiff's clearly established constitutional rights. Accordingly, 7 Defendants are entitled, as an alternative matter, to qualified immunity with respect to Plaintiff's 8 deliberate indifference to medical needs claim. 9 IV. CONCLUSION 10 For the reasons outlined above, the Court rules as follows: 11 1. Plaintiff's motion to strike Defendants' reply brief as untimely is DENIED. Dkt. 12 26. Northern District of California United States District Court 13 2. Defendants are entitled to judgment as a matter of law on the merits of Plaintiff's 14 Eighth Amendment deliberate indifference to medical needs claim as well as on these Defendants' 15 qualified immunity defense. Defendants' motion for summary judgment is GRANTED, and 16 judgment will be entered in their favor. Dkt. 16. 17 3. The Clerk shall terminate all pending motions and close the file. 18 4. This Order terminates Docket Nos. 16 and 26. 19 IT IS SO ORDERED. 20 Dated: March 10, 2017 21 ______________________________________ YVONNE GONZALEZ ROGERS 22 United States District Judge 23 24 25 26 27 28 26