amended civil complaint against defendant dean winslow, m.d., et al

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FIRST AMENDED COMPLAINT PAGE 1 OF 11 09-cv-04231 (PR) RS

COMES NOW, James Alan Bush, plaintiff in the above-captioned matter, by

and through his counsel of record, in pro per, and upon information and

belief, states and alleges as follows:

INTRODUCTION

1. Plaintiff brings this action pursuant to Title 42 U.S.C.A. § 1983

seeking declaratory and injunctive relief for deprivation under color

of state law of the rights, privileges, and immunities secured to him

by the United States Constitution, and, in particular, the Fourth,

Fifth, Eighth, and Fourteenth Amendments thereof.

James Alan Bush (DWF967-08086698)885 North San Pedro AvenueSan Jose, California 95110

Plaintiff in pro per

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

James Alan Bush,

Plaintiff,

v.

Dr. Dean Winslow, M.D., et al.,

Defendants.

Case No. 09-cv-04231 (PR) RS

FIRST AMENDED COMPLAINT

DEMAND FOR JURY TRIAL

[Title 42 U.S.C.A. § 1983]

Judge Richard Seeborg

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2. Plaintiff specifically seeks relief from unconstitutional conditions

at the Santa Clara County Main Jail which violate plaintiff’s right to

medical privacy and his due process right to security and safety.

JURISDICTION

3. This action is filed pursuant to Title 42 U.S.C.A. § 1983 seeking

redress of injuries suffered by plaintiff for deprivation under color

of state law of rights secured by the Fourth, Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution. Accordingly,

jurisdiction is proper in this Court pursuant to Title 28 U.S.C.A. §§

1331 and 1343(a)(3).

VENUE

4. Venue is proper in the United States District Court, Northern District

of California, San Jose Division, pursuant to Title 28 U.S.C.A. § 1391,

because al of the defendants reside in this district, and the acts

giving rise to this lawsuit occurred in this district.

INTRADISTRICT ASSIGNMENT

5. This lawsuit should be assigned to the San Jose Division because the

events giving rise to this lawsuit occurred in Santa Clara County.

PARTIES

6. Plaintiff, James Alan Bush, currently is, and has been, a pretrial

detainee at the Santa Clara County Main Jail since December

13th, 2008, who is housed in a protective custody unit due to his

classification as a homosexual. Plaintiff is also being treated for

HIV/AIDS at the aforementioned institution.

7. Defendant, Edward C. Flores, Chief of Correction for the County of

Santa Clara Department of Correction, is and was at all times relevant

ultimately responsible for the administrative and policymaking of the

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Santa Clara County Main Jail.

8. Santa Clara County Main Jail is a multiple-level security institution

that segregates homosexual inmates from the general population by

placing them in separate protective custody units.

9. Defendant, Captain D. Sepulveda, is and was at all times relevant

responsible for the day-to-day management of the aforementioned

institution and takes part in establishing and enforcing the policies

and rules of the institution.

10. Defendant, Dr. Dean Winslow, M.D., is a private physician under

contract to provide obligatory medical services to the aforementioned

institution, and is employed by the P.A.C.E. Clinic.

11. P.A.C.E. Clinic provides exclusive treatment to HIV-positive inmates at

the aforementioned institution, and is a subcontractor for Santa Clara

Valley Health & Hospital System Adult Custody Health Services.

12. Santa Clara Valley Health & Hospital System Adult Custody Health

Services provides exclusive medical, dental, and mental health

services to inmates at the aforementioned institution.

13. At all times relevant herein, defendants were “persons” for purposes

of Title 42 U.S.C.A. § 1983, and acted under color of law to deprive

plaintiff of his constitutional rights, as set forth more fully below.

COUNT I (VIOLATION OF MEDICAL PRIVACY)

14. Defendant, Dr. Dean Winslow, M.D., as head of the P.A.C.E. Clinic,

was aware of, and acquiesced in, the unconstitutional conditions

of plaintiff’s confinement at the aforementioned institution as set

forth below. Defendant Winslow was directly responsible for said

unconstitutional conditions. Defendant Winslow therefore subjected or

caused plaintiff to be subjected to unconstitutional conditions, and

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demonstrated deliberate indifference.

15. Private medical information is being improperly disclosed by Defendant

Winslow and medical staff to jail staff, and by jail staff to inmates,

that pertains to inmates being treated by the P.A.C.E. Clinic, which is

known to jail staff and inmates alike for its exclusive treatment of

HIV-positive patients. Disclosure is made in the following manner:

a) Defendant Winslow and medical staff publish a list of inmates

having scheduled appointments with the P.A.C.E. Clinic, who then

distribute the list to correctional officers; and,

b) Correctional officers make a broad announcement for each inmate

on the list whenever an inmate is scheduled to visit the P.A.C.E.

Clinic to the dormitory that houses the inmate, which contains up

to 95 other inmates.

The name of an inmate is always listed or used in conjunction with

the name of the aforementioned clinic, both on the list and in the

announcement; it is by the association of the inmate’s name with that

of the clinic that his HIV-positive status is made known to jail staff

and other inmates.

16. On July 20th, 2009, Defendant Winslow and medical staff published a

list of inmates who were scheduled to visit the P.A.C.E. Clinic and

then distributed the list to jail staff; the name of the plaintiff and

the name of the clinic appear in conjunction with each other on the

list [see Exhibit “A”].

17. Once the list was routed to the unit in which the plaintiff was

housed, Correctional Officer Kennedy (#2478) made a broad, down-wide

announcement that plaintiff had a P.A.C.E. Clinic appointment, which

was heard, and was intended to be heard, by every inmate in the unit

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(approximately 90 inmates).

18. On that same day, the pill-call nurse on duty, Nurse Lynn, having

exhausted her supply of Truvada, a common HIV-treatment drug,

announced to plaintiff from her station to his cell that his “Truvada

[would] be here this afternoon,” which was overhead by as many as 45

inmates who were occupying the dayroom at the time the announcement

was made.

19. Plaintiff immediately expressed his concern for the disclosure of his

medical condition by submitted a grievance form to C.O. Kennedy, which

read:

C.O. Kennedy made a dorm-wide announcement that I had a P.A.C.E.

Clinic appointment, which is the equivalent of disclosing

someone’s HIV status to 90 people (simply saying “medical” is

better); Nurse Lynn shouted from her station to my cell door that

she would bring my Truvada this afternoon, which may be known

to inmates as Hepatitus/HIV meds (saying this while I’m at her

station is better).

Plaintiff then recommended the following solution:

Announce nothing specific about anyone’s meds or condition.

A copy of the grievance form is attached hereto as Exhibit “B” and is

made a part hereof.

20. In her same day reply to plaintiff, C.O. Kennedy acknowledged the

disclosure and then stated that the aforedescribed list from Defendant

Winslow and medical staff was the source of the information concerning

plaintiff. To-wit:

Inmate medical appointment sheet stated ‘P.A.C.E. Clinic.’ I

simply read the appt. as it was listed. There was no intent to

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intentionally disclose your medical status. Refer to medical (RN

Lynn) for further.

21. Two days later, on or around July 22nd, 2009, plaintiff submitted a

second grievance, reiterating his concern for the violation of privacy

and expressing concern for his safety. To-wit:

On July 20th, 2009, @ 2:05 PM, I submitted a grievance, which read,

in part, as follows:

“C.O. Kennedy made a dorm-wide announcement that I had a P.A.C.E.

Clinic appointment, which is the equivalent of disclosing

someone’s HIV status to over 90 people. Simply saying medical is

better.”

I recommended the following solution:

“Announce nothing specific about anyone’s condition.”

On the same day (@ 2:09 PM), C.O. Kennedy responded accordingly:

“[The] inmate medical appointment sheet stated, ‘P.A.C.E. Clinic.’

I simply read the appt. as it was listed. There was no intent to

intentionally disclose your medical status.” In furtherance of my

grievance, I add the following:

C.O. Kennedy states in her response to my grievance that she

merely read from a document that said, “P.A.C.E. Clinic.” While

I do not dispute this fact, I do have issue with the manner of

delivery, which was a loud, dorm-wide announcement, that employed

my name, to over 90 people.

What I’m suggesting is this: if a broad announcement must be made

in regards to medical appointments—be it even “mental health”—the

word, “medical,” should be used as a catch-all. The specific type

of medical appointment can be later related to an inmate once the

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inmate has reported to the C.O. when they are inclose proximity

to each other. To illustrate: a nurse would never announce the

medical condition a patient is being treated for to a waiting room

full of other patients; rather, the nurse would simply state, “The

doctor will see you now.”

Similarly, a C.O. should not disclose the medical condition that

has a stigma attached to it from which an already stigmatized

inmate may suffer (that is, a homosexual inmate), especially to

an inmate population that it is known for a propensity towards

prejudice and violence against gays.

Gays are placed in protective custody for the very fact that

they are gay; and, that as such, they have been, historically,

maltreated. Therefore, my grievance not only concerns my privacy;

but, my safety, as well.

Finally, in further regards to C.O. Kennedy’s response: I am not

claiming that her act was intentional; but, rather, that it was a

reckless one. I am not seeking a reprimand; rather, to satisfy my

grievance, a blanket policy of discretion when making dorm-wide

announcements in order to ensure privacy & security would suffice.

22. On August 13th, 2009, medical staff further acknowledged the violation

of plaintiff’s medical privacy, and, although they stated their

intention to address the incident, they failed to institute safeguards

against future incidents of disclosure [see Exhibit “B”]. To-wit:

I apologize for the untimely disclosure and I agree with your

recommendation. We will counsel Nurse Lynn on the importance of

maintaining [patient] confidentiality and although we will not be

able to disclose the final outcome, rest assured that this matter

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will be fully addressed.

Although the name of the person who wrote the above is not legible,

the title reads, “RN”, which indicates that the response is from

medical staff.

COUNT II (DUE PROCESS)

23. Defendants Flores and Sepulveda, as Chief of Correction and Captain

of the Santa Clara County Department of Correction, respectively,

were aware of, and acquiesced in, the unconstitutional conditions

of plaintiff’s confinement at the Santa Clara County Main Jail as set

forth below, and failed to take necessary and appropriate action.

Defendants therefore subjected or caused plaintiff to be subjected to

unconstitutional conditions, and demonstrated deliberate indifference.

24. Defendants Flores and Sepulveda in deliberate disregard of plaintiff’s

constitutional right to privacy discussed plaintiff’s grievances with

jail staff, which was made evident when plaintiff was approached by

two correctional officers in regards to the grievances, who were not

otherwise authorized or privileged to discuss his grievance with him.

25. Defendants Flores’ and Sepulveda’s deliberate indifference to

plaintiff’s request that defendants cease from further disclosure

of his HIV-positive status constituted a violation of plaintiff’s

constitutional right to privacy.

26. By inadvertently disclosing plaintiff’s HIV-positive status to over

90 other inmates, Defendants Flores and Sepulveda knowingly exposed

plaintiff to a pervasive risk of harm from other inmates in reckless

disregard for plaintiff’s due process right to safety as a pretrial

detainee, in that:

a) plaintiff was placed in protective custody because violence

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against homosexuals is known to occur with sufficient frequency as

to warrant segregation from the general population;

b) plaintiff was put in reasonable fear for his safety due to the

stigma and prejudice associated with an HIV-positive diagnosis and

homosexuality; and,

c) plaintiff reasonably apprised defendants of an increased risk of

danger and expressed the need for adequate protective measures

in writing by submitting two grievances, which also expressed his

safety concerns.

27. Defendants Flores’ and Sepulveda’s failure to institute adequate

protective measures against a substantial risk of harm to plaintiff

amounts to a deliberate indifference to plaintiff’s safety,

in violation of the Eighth Amendment, because, after becoming

subjectively aware of an inmate’s risk, the defendants knew, or

should have known, that such measures were needed; and, by refusing

to institute protective measures after becoming aware of their need,

defendants deliberately exposed plaintiff to a strong likelihood of

violence, in violation of plaintiff’s due process rights.

28. Defendants Flores and Sepulveda in deliberate disregard of plaintiff’s

constitutional rights as herein described in this count, failed to

institute safeguards against the unwarranted disclosure of plaintiff’s

HIV-positive status to jail staff and other inmates [see Exhibit “A”

for the additional disclosure of another inmate’s HIV-positive status].

29. Defendants Flores’ and Sepulveda’s callous and deliberate indifference

to plaintiff’s request that defendants cease from disclosing his and

other inmates’ HIV-positive status resulted in a heightened sense of

danger and a palpable increase in vulnerability to attack by other

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inmates and constituted a violation of plaintiff’s constitutional right

to be free from exposure to an increased risk of danger.

NO ADEQUATE REMEDY AT LAW

30. As a proximate result of the defendants’ policies, practices,

customs, procedures, acts, and omissions, plaintiff has suffered

and will continue to suffer irreparable injury and harm, including

psychological and emotional injury due to exposure to an increased

risk of harm by the reckless conduct of the defendants. Plaintiff’s

psychological health and well-being will continue to deteriorate

during his confinement due to the conditions herein described.

Plaintiff has no plain, adequate, or complete remedy at law to redress

the wrongs herein described. Plaintiff will continue to be irreparably

harmed and injured unless the Court grants the injunctive relief that

plaintiff seeks.

PRAYER FOR RELIEF

WHEREFORE, plaintiff prays for relief as follows:

1. That the Court determine and enter judgment declaring that the

acts and omissions of the defendants, as set forth above, violate

plaintiff’s right to privacy and his due process right to security and

safety as a pretrial detainee as secured by the Fourth, Fifth, Eighth,

and Fourteenth Amendments to the United States Constitution;

2. That upon hearing, the Court issue a preliminary and permanent

injunction:

a) enjoining the defendants, their employees, agents, and successors

in office from the improper disclosure of an inmate’s HIV-positive

diagnosis;

b) enjoining the defendants and their successors in office from

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failing to instruct, supervise, and train their employees and

agents in such a manner as to assure the privacy of an inmate’s

HIV-positive status;

c) enjoining the defendants and their successors in office from

failing to inform current and future inmates of their rights, as

established by this Court in its declaration; and,

d) enjoining the defendants and their successors in office from

failing to establish safeguards against the inadvertent disclosure

of an inmate’s HIV-positive status;

3. For costs of suit herein incurred; and,

4. For such other and further relief as the Court may deem proper.

Dated: April 15th, 2010

James Alan BushPlaintiff in pro per

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EXHIBIT A PAGE 1 OF 1 09-cv-04231 (PR) RS

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EXHIBIT B PAGE 1 OF 1 09-cv-04231 (PR) RS

amended civil complaint against defendant dean winslow, m.d., et al

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