motion for summary judgment (defendant dr. dean winslow, m.d.)

8/3/2019 Motion for Summary Judgment (Defendant Dr. Dean Winslow, M.D.)

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1 MIGUEL MARQUEZ, County Counsel (S.B. #184621)NEYSA A. FLIGOR, Deputy County Counsel (S.B. #215876)2 OFFICE OF THE COUNTY COUNSEL70 West Hedding Street, East Wing, Ninth Floor3 San Jose, California 95110-1770Telephone: (408) 299-59004 Facsimile: (408) 292-7240

MIGUEL MARQUEZC o u n ty C o u n se l

County o f S an te C la raSan Jose, California

8910111213141516171819202122232425262728

5 Attorneys for DefendantsDR. DEAN WINSLOW, EDWARD C.6 FLORES AND D. SEPULVEDA7

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

JAMES ALAN BUSH, ))Plaintiff, ))v. ))DR. DEAN WINSLOW, Santa Clara )County Jail, EDWARD C. FLORES, )Chief of Correction and D. SEPULVEDA)Captain of the Department of Correction, ))Defendants. )--------~--------------)

Notice of Motion and Motion for SummaryJudgment of Defendants' and Memorandumof Points and Authorities in Support Thereof

No. C 09-04231 RSDEFENDANTS' NOTICE OF MOTION ANDMOTION FOR SUMMARY JUDGMENT,AND MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT THEREOFJudge: Honorable Richard SeeborgCourtroom 3, 17thFloorHearing Date: Not Applicable

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MIGUEL MARQUEZCounty Counsel

County o f S an ta C la raSan Jose: California

Notice of Motion and Motion for SummaryJudgment of Defendants' and Memorandumof Points and Authorities in Support Thereof C 09-04231 RS

1 TABLE OF CONTENTS2 NOTICE OF MOTION AND MOTION FOR SUMMARYJUDGMENT OF DEFENDANTS' 13 MEMORANDUM OF POINTS AND AUTHORITIES IN4 SUPPORT OF MOTION FOR SUMMARY JUDGMENT 25678910111213141516171819202122232425262728

I. INTRODUCTION 2II. PROCEDURAL BACKGROUND AND SUMMARY OFALLEGATIONS 3III. STANDARD OF REVIEW 4IV. ARGUMENT 4

A. COUNTY DEFENDANTS ARE ENTITLED TOQUALIFIED IMMUNITY 41. An Inmate's Right to Privacy of His HIV-PositiveStatus is Not a Clearly Established ConstitutionalRight. 52. County Defendants Could Not Have ReasonablyBelieved That Their Particular Conduct was Unlawful. 6

B. THERE IS NO EVIDENCE OF A CONSTITUTIONALVIOLATION 71.2.

There is No Evidence of Supervisory Liability 7There Is No Evidence to Support PlaintiffsSection 1983 Claim 8a. Plaintiff Cannot Satisfy the ObjectiveComponent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9b. Plaintiff Cannot Satisfy the SubjectiveComponent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10

C. PLAINTIFF WAIVED HIS RIGHT TO PRIVACY 11PLAINTIFF FAILED TO EXHAUST HISADMINISTRATIVE REMEDIES 12

V. CONCLUSION 13

D.


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1 TABLE OF AUTHORITIES2 CASES3 Anderson v . Liberty Lobby, Inc.477 U.S. 242 (1986) 44 Anderson v . Romero5 72 F.3d 518 (7th Cir. 1995) 66 Booth v . C . 0. Churner532 U.S. 731 (2001) 127 Camarillo v . McCarthy8 998 F.2d 638 (9th Cir. 1993) 59 Celotex Corp. v . Catrett477 U.S. 317 (1986) 410 Deorle v . Rutherford11 272 F.3d 1272 (9th Cir. 2001) 512 Doe v . Delie257 F.3d 309 (3d. Cir. 2001) 613 Doe v . Marsh14 105 F.3d 106 (2d Cir. 1997) 1115 Estate of Cole v . Fromm94 F.3d 254 (7th Cir. 1996) 1016 Farmer v . Brennan17 511D.S.825(1994) 8-1018 Ferrell v . Glen-Gery Brick678 F.Supp. 111 (E.D.Pa. 1987) 1119 Harlow v . Fitzgerald20 457 U.S. 800 (1982) 521 Harris v . Thigpen941 F.2d 1495 (11th Cir. 1991) 622 Moore v . Mabus23 976 F.2d 268 (5th Cir. 1992) 624 Mosher v . Saalfeld589 F.2d 438 (9th Cir. 1978) 825 Redman v . County of San Diego26 942 F.2d 1435 (9th Cir. 1991) 827 Rhodes v . Chapman452 U.S. 337 (1981) 928


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10 Whitley v . Albers475 U.S. 312 (1983) 9Wilson v . Seiter12 501 U.S. 294 (1991) 9

13 STATUTES14 FEDERAL15 Federal Rules of Civil Procedure16 section 25(d) 2

17 United State Constitution Code18 42 U.S.C. section 1983 2-4, 8, 9, 1219 42 U.S.C. section 1997e(a) 12

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1 Romero v . Kitsap County931 F.2d 624 (9th Cir. 1991) 5Saucier v . Katz3 533 U.S. 194 (2001) 5

4 Seaton v . Mayberg610 F.3d 530 (9th Cir. 2001) 55 Terry A. Lambert Plumbing, Inc. v . Western Sec. Bank6 934 F.2d 976 (8th Cir. 1991) 4

7 Tokar v . Armontrout97 F.3d 1078 (8th Cir. 1996) 68 West v . Atkins9 487 U.S. 42 (1999) 9

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NOTICE OF MOTION AND MOTION FORSUMMARY JUDGMENT OF DEFENDANTS'123 TO PLAINTIFF IN PRO PER:4 PLEASE TAKE NOTICE that Defendants Dean Winslow, M.D., Edward C. Flores, and5 Captain D. Sepulveda ("County Defendants") will and hereby do move this Court for summary6 judgment regarding all claims for relief. This Motion is based on the ground that there is no7 genuine issue as to any material fact and Defendants are entitled to judgment as a matter of law.8 This Motion is based on the Notice of Motion and Motion for Summary Judgment,9 Memorandum of Points and Authorities in Support of Motion for Summary Judgment,10 Declarations of Captain Kevin Heilman and Dr. Dean Winslow, Request for Judicial Notice,11 and all papers and pleadings on file in this action. County Defendants respectfully request that12 this Court grant their motion for summary judgment.13141516171819202122232425262728

MIGUEL MARQUEZC o u n ty C o u n se lC o un ty o f S an t e C l a ra

S a n J o se , C a l if o r ni a

Dated: March 16, 2011 Respectfully submitted,MIGUEL MARQUEZCounty Counsel

By: NEYSA A. FLIGORDeputy County CounselAttorneys for DefendantsDR. DEAN WINSLOW, EDWARD C.FLORES AND D. SEPULVEDA



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10 Winslow provided jail staff with a list of inmates with medical appointments, and/or he directed11 medical staff to do so, and that Flores and Sepulveda failed to supervise or implement policies12 regarding the dissemination of medical information, after Plaintiff complained that a nurse and a13 correctional officer at the Main Jail announced dorm-wide about Plaintiffs HIV/AIDS-14 treatment appointment and medication.15 The County Defendants are entitled to summary judgment for several reasons. First, the16 County Defendants are entitled to qualified immunity because the right to privacy of medical

17 records, including an individual's HIVIAIDS status, is not clearly established and there is no18 evidence that the County Defendants could have reasonably believed that their alleged conduct19 was unlawful. Second, there is no evidence to support Plaintiff s Section 1983 claim, including20 his claim of supervisory liability against the County Defendants. Third, Plaintiff waived his21 alleged right to privacy by publicly disclosing his HIV IAIDS status. And fourth, Plaintiff failed22 to exhaust his administrative remedies under the Prison Litigation Reform Act before filing his232425262728


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5 Plaintiff James Bush, ajail inmate who was booked in December 2008, into the County6 of Santa Clara's Department of Correction Main Jail ("Main Jail") for felonies, including arson,7 fraud, possession of stolen property and resisting arrest, alleges that Dr. Dean Winslow, former8 County Department of Correction Chief Edward Flores,' and Captain David Sepulveda (the9 "County Defendants") violated his constitutional rights. Specifically, plaintiff claims that Dr.

MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF MOTION FOR SUMMARY JUDGMENT123 I.4 INTRODUCTION

1 On approximately October 31, 2010, Flores retired from the County of Santa Clara.(Declaration of Kevin Heilman ("Heilman Dec. "), ~ 3.) The current Chief of Correction is JohnHirokawa. (Jd.) In this action, plaintiff named Flores in both his individual capacity and hisofficial capacity as Chief of Correction. Pursuant to Federal Rules of Civil Procedure 25(d), theclaims against Defendant Flores in his official capacity should now be against Chief Hirokawa.(Fed. R. Civ. P. 25(d).) Accordingly, the arguments in this motion that are made on behalf ofFlores in his official capacity are being made on behalf of Chief Hirokawa in his officialcapacity as the current Chief of Correction.Notice of Motion and Motion for SummaryJudgment of Defendants' and Memorandumof Points and Authorities in Support Thereof 2 C 09-04231 RS


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1 lawsuit. Accordingly, the Court should grant the County Defendants' summary judgment2 motion and dismiss Plaintiff s entire lawsuit, with prejudice.3 rr4 PROCEDURAL BACKGROUND AND SUMMARY OF ALLEGATIONS5 On September 11, 2009, Plaintiff filed his original complaint, which he amended on6 September 24,2009. This Court dismissed that complaint with leave to amend.7 On April 19, 2010, Plaintiff filed a First Amended Complaint. And on September 27,8 2010, this Court issued an Order of Service, finding that certain claims in the amended9 complaint, liberally construed, appear cognizable under 42 U.S.C. Section 1983. Those claims10 are: (1) Dr. Winslow disclosed Plaintiffs private medical information to jail staff and inmates11 in violation of Plaintiff s right to medical privacy, and thereby endangered him in violation of12 the Eighth Amendment; and (2) Chief Flores and Captain Sepulveda failed to respond to13 Plaintiffs requests to prevent disclosure of his private medical information, thereby14 endangering him in violation of the Eighth Amendment.15 Plaintiff has been a pretrial detainee at the County of Santa Clara's Main Jail since16 December 2008. (Amended Complaint p. 3, ~ 6.) He is housed in a protective custody unit due17 to his classification as a homosexual, and is being treated for HIV/AIDS at the Main Jail. (ld.)18 Plaintiff alleges that County Defendants violated his constitutional rights by allowing his HIV-19 positive status to be disclosed to other inmates and unauthorized jail staff, thereby exposing him20 to a risk of harm from other inmates. (ld. at pp. 10 -11, ~~ 25,26.)21 Specifically, Plaintiff claims that on July 20,2009, defendant Winslow and medical staff22 published a list of inmates who were scheduled to visit the P.A.C.E. Clinic, which Plaintiff23 alleges is known for its exclusive treatment of HIV-positive patients. (Amended Complaint at24 pp. 4 - 5, ~~ 15, 16.) Once the list was routed to the unit in which Plaintiff was housed,25 Correctional Officer Kennedy announced that Plaintiff had a PACE Clinic appointment. (ld. at26 ~ 17). On that same day, Plaintiff alleges that Nurse Lynn announced to Plaintiff that his27 "Travada would be here this afternoon." Plaintiff alleges that Travada is known as a common28 HIV -treatment drug. (ld. at p.6, ~ 18).

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1 Plaintiff submitted a grievance form regarding Officer Kennedy's announcement that2 Plaintiff had aPACE Clinic appointment, which according to Plaintiff "is the equivalent of3 disclosing someone's HIV status to 90 people." (Complaint Exhibit "B".) Plaintiffs grievance4 also mentioned Nurse Lynn's announcement regarding Travada, which Plaintiff claims is5 known to inmates as HepatitislHIV medication. (Jd.) Officer Kennedy responded to Plaintiffs6 grievance that same day, stating that she had simply read the appointment as it was listed on the7 appointment sheet and did not intend to disclose Plaintiffs medical status. (Jd.) On August 13,8 2009, medical staff responded to Plaintiffs grievance, stating that Nurse Lynn would be9 counseled on the importance of maintaining patient confidentiality and that this matter would be10 fully addressed. (Jd.)11 Plaintiff also alleges that defendants Flores and Sepulveda failed to institute safeguards12 against further disclosure of his HIV-positive status, thereby deliberately exposing him to a13 strong likelihood of violence from other inmates. (Complaint p. 12, ~ 28.)14 III.15 STANDARD OF REVIEW16 To prevail on a motion for summary judgment, a defendant is not required to put forth17 evidence that affirmatively establishes a plaintiff's inability to maintain his or her action.18 Celotex Corp. v . Catrett, 477 U.S. 317,323 (1986). In fact, a plaintiff must do more than assert19 that a defendant's version of the facts might be disbelieved; the plaintiff must present20 affirmative evidence in order to defeat a motion for summary judgment. Anderson v . Liberty21 Lobby, Inc., 477 U.S. 242,256-257 (1986). Thus, a plaintiff has the burden of establishing22 significant probative evidence to prevent summary judgment. Terry A. Lambert Plumbing, Inc.23 v . Western Sec. Bank, 934 F.2d 976, 979 (8th Cir. 1991).24 IV.25 ARGUMENT26 A. COUNTY DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY27 Public officials acting in their official capacity are entitled to qualified immunity from28 Section 1983 liability for discretionary acts that do not violate clearly established federal

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1 statutory or constitutional rights of which a reasonable person would have known. Harlow v.2 Fitzgerald, 457 U.S. 800, 818 (1982). To defeat a defense of qualified immunity, a plaintiff3 must prove that the right allegedly violated was "clearly established" at the time of the4 violation. Romero v . Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). A right becomes5 clearly established only when it is enunciated by closely analogous pre-existing case law or6 when the conduct "is so patently violative of the constitutional right that reasonable officials7 would not know without guidance from the courts that the action was unconstitutional." Deorle8 v . Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001). "If the law did not put the officer on notice9 that his conduct would be clearly unlawful, summary judgment based on qualified immunity is10 appropriate." Saucier v . Katz, 533 U.S. 194,202 (2001). Romero, 931 F.2d at 627.11 Here, Plaintiffs alleged right to privacy was not clearly established and there is no12 evidence that the County Defendants reasonably believed that their conduct was unlawful.

1. An Inmate's Right to Privacy of His HIV-Positive Status is Not a ClearlyEstablished Constitutional Right.

15 An inmate's Fourteenth Amendment right to privacy in his medical information is not16 absolute and is subject to substantial limitations and restrictions. See Seaton v.Mayberg, 61017 F.3d 530, 535 (9th Cir. 2001). The Fourteenth Amendment gives prisoners a limited right to18 privacy of medical records, subject to legitimate penological interests. ld. In Seaton, the Ninth19 Circuit found that the Supreme Court has never established a constitutional right to privacy in20 medical records and only recognizes it in certain contexts. ld. at 537.21 Moreover, courts have consistently recognized the constitutionality of prison policies22 segregating inmates with HIV and other contagious diseases from the general prison population.23 See Seaton, 610 F.3d at 535 ("If a prisoner has a contagious disease ... the prison may owe a24 duty ... to other prisoners to isolate him or otherwise protect them from him); Camarillo v.25 McCarthy, 998 F.2d 638,640 (9th Cir. 1993) ("It was not clearly established at the relevant26 time - nor is it now - that a prison policy segregating HIV-positive inmates from the general27 prison population is unconstitutional"). Thus, because policies segregating inmates based on28 their HIV-positive status are constitutional-even though those policies isolate and identify an



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1 inmate by his HIV-positive status-it follows that an inmate's right to keep his HIV-positive2 status from being disclosed in a prison setting is not a "clearly established" constitutional right.3 See Anderson v. Romero, 72 F.3d 518, 526 (7th Cir. 1995).4 Further, several circuits have specifically held that a prisoner's right to privacy5 regarding medical records that involve AIDS and HIV is not a "clearly established"6 constitutional right. See Doe v. Delie, 257 F.3d 309,321 (3d. Cir. 2001) (an inmate who was7 HIV positive did not have a clearly established constitutional right to privacy in his medical8 information); Tokar v. Armontrout, 97 F.3d 1078,1084 (8th Cir. 1996) (an inmate "had no9 clearly established constitutional right to non-disclosure of HIV status"); Anderson, 72 F.3d at10 524 (same); Moore v . Mabus, 976 F.2d 268,271 (5th Cir. 1992) ("[T]he identification and11 segregation of HIV-positive prisoners obviously serves a legitimate penological interest.");12 Harris v. Thigpen, 941 F.2d 1495,1513 (l1th Cir. 1991) (disclosure of an inmate's HIV status13 is reasonable in light of the difficult decisions that the doctor must make in determining how14 best to treat and control the spread of a communicable, incurable, always fatal disease).15 Given the absence of binding precedent in the Ninth Circuit regarding the disclosure ofa16 prisoner's HIV status, and several circuits holding that such a right is not clearly established,17 this Court should find that Plaintiffs right to privacy regarding his HIV-positive status is not a18 clearly established constitutional right. See Delie, 257 F.3d at321 ("the absence of binding19 precedent in this circuit, the doubts expressed by the most analogous appellate holding, together2.0 with the conflict among a handful of district court opinions, undermines any claim that the right21 [of prisoners to keep their HIV-positive status private] was clearly established").2223

2. County Defendants Could Not Have Reasonably Believed That Their ParticularConduct was Unlawful.

24 Likewise, there is no evidence that any of the County Defendants could have reasonably25 believed that his conduct was unlawful. Plaintiff alleges that his right to privacy was violated26 when Dr. Winslow provided, or had medical staff provide, a list of inmates with their PACE27 Clinic appointments to jail staff, and that defendants Sepulveda and Flores allegedly failed to28 respond to Plaintiffs requests to prevent disclosure of his medical information after Nurse

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1 Lynn purportedly made a donn-wide announcement that Plaintiffs medication would be2 available in the afternoon and Officer Kennedy read aloud the names of the inmates with PACE3 Clinic appointments.4 First, Dr. Winslow was not involved in compiling the list of inmates or directing medical5 or jail staff to disseminate this information. (Declaration of Dr. Dean Winslow in support of6 Motion for Summary Judgment, ~ 4.) But even assuming Dr. Winslow was aware or involved7 in the compilation of the list, there is no evidence that he or any of the medical staff could have8 reasonably believed that providing the list of names to jail staff was unlawful. In fact, for jail9 staff to coordinate and inform inmates about their medical appointments, ja il staff must have10 access to the information at issue. (Heilman Dec., ~ 5.)11 Similarly, there is no evidence that defendants Sepulveda and Flores failed to supervise12 or implement a policy after Plaintiff submitted his grievance form, or that they could have13 reasonably believed that their conduct amounted to a constitutional violation. In fact, it is not14 clear when Plaintiff expected these defendants to take steps to prevent disclosures because the15 disclosures by Officer Kennedy and Nurse Lynn occurred before Plaintiff submitted his16 grievance form. Nor is there any evidence that Officer Kennedy and Nurse Lynn were aware17 that they could be violating clearly established constitutional rights when they made the18 announcements. Additionally, medical staff responded to Plaintiffs grievance, informing him19 that they would fully address the matter.20 Finally, there is no evidence that any other inmate actually heard the announcements,21 knew that PACE Clinic provided HIV IAIDS treatment, or knew that "Travada" was a drug to22 treat HIV/AIDS. Therefore, County Defendants are entitled to qualified immunity because23 Plaintiffs right to privacy regarding his Hl'V-positive status was not a clearly established24 constitutional right in the jail setting, and the County Defendants were not aware that any of25 their acts violated Plaintiff s constitutional rights.

B . THERE IS NO EVIDENCE OF A CONSTITUTIONAL VIOLATION1. There is No Evidence of Supervisory Liability.Plaintiff appears to be suing defendants in their supervisory capacities. He alleges that



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1 County Defendants violated his constitutional right to safety when Dr. Winslow caused medical2 staff to compile a list of inmates with their PACE Clinic appointments and when Sepulveda and3 Flores failed to supervise jail staff or implement a policy regarding the disclosure of medical4 information after Plaintiff submitted his grievance form regarding the announcements. But5 Plaintiff has no evidence to suggest that any of these defendants had any knowledge of the6 alleged violations and failed to do anything about them.7 There is no vicarious liability for supervisors under Section 1983, unless otherwise8 authorized by statute. Mosher v . Saalfeld, 589 F.2d 438,441 (9th Cir. 1978). Liability extends9 only to those who knew of the alleged unconstitutional deprivations. Redman v. County a/San10 Diego, 942 F.2d 1435,1446-1447 (9th Cir. 1991). Therefore, even if Plaintiff' s constitutional11 rights were violated by officers or medical staff at the Main Jail, County Defendants can only be12 liable if the evidence shows that they knew of these alleged violations. Nothing in the record13 shows or even implies that County Defendants were involved in the alleged acts. Further, a14 supervisor can only be liable if there is a sufficient causal connection between the supervisor's15 acts and the plaintiff's alleged wrongs. ld. at 1446.16 Here again, Plaintiff has not shown any causal link between any acts by the County

17 Defendants and the alleged wrongs. Additionally, to the extent Plaintiff's claims are based on18 alleged negligence by defendants in failing to ensure his HIV positive status was not disclosed,19 the Supreme Court has rejected such a claim stating, "an official's failure to alleviate a20 significant risk that he should have perceived but did not, while no cause for commendation,21 cannot under our cases be condemned as the infliction of punishment" for purposes of the22 Eighth Amendment. Farmer v . Brennan, 511 U.S. 825,838 (1994). Since Plaintiff cannot23 produce sufficient evidence to permit an inference of each defendant's knowledge of Plaintiff's24 alleged deprivation or causal connection between Plaintiff's alleged injuries and each25 defendants' acts, each defendant is entitled to summary judgment.26 2. There Is No Evidence to Support Plaintiff's Section 1983 Claim.27 Plaintiff also alleges that County Defendants were deliberately indifferent to his safety28 because they exposed him to an increased risk of harm from other inmates by disclosing his

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1 HIV/AIDS status or failing to respond after the alleged disclosure was made. To succeed on a ~2 claim for relief under 42 U.S.C. 1983, a plaintiff must establish that a right secured by the3 Constitution or laws of the United States was violated by a person acting under the color of law.4 West v . Atkins, 487 U.S. 42,48 - 49 (1999). A plaintiff must prove both that the alleged5 deprivations were objectively sufficiently serious to rise to the level of a constitutional6 violation (the objective component) and that the defendants had a culpable state of mind acting7 with deliberate indifference to plaintiffs health and safety (the subjective component). Farmer,8 511 U.S. at 833 - 834. Here, no such facts exist.

a. Plaintiff Cannot Satisfy the Objective Component10 To satisfy the objective component for Eighth Amendment claims, a plaintiff must11 demonstrate that the deprivation was sufficiently serious to constitute cruel and unusual12 punishment. Wilson v . Seiter, 501 U.S. 294,298 (1991). "To be cruel and unusual punishment,13 conduct that does not purport to be punishment at all must involve more than ordinary lack of14 due care for the prisoner's interests or safety .... It is obduracy and wantonness, not15 inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and16 Unusual Punishments Clause." Whitleyv. Albers, 475 U.S. 312, 319 (1983) (emphasis added).17 Further, even restrictive and harsh conditions are not unconstitutional unless they deprive18 inmates of the "minimal civilized measure of life's necessities." Rhodes v . Chapman, 452 U.S.19 337,347 (1981).20 Not every injury suffered by a prisoner at the hands of another translates into21 constitutional liability for prison officials responsible for the victim's safety; instead, a plaintiff22 must show that he was incarcerated under conditions posing a substantial risk of serious harm.23 Farmer, 511 U.S. at 834.24 Here, County Defendants did not expose Plaintiff to conditions that posed a substantial25 risk of serious harm. Plaintiff alleges that he was exposed to risk of harm by other inmates26 because County Defendants allegedly disclosed his HIV/AIDS status, or failed to respond to his27 grievance form. There is no evidence, however, that the other inmates heard any of the28 announcements, that they knew that PACE clinic or Travada was related to HIV/AIDS or that

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1 either announcement posed a substantial risk to Plaintiffs safety. Accordingly, the alleged2 deprivations do not constitute obduracy or wantonness on the part of County Defendants and3 thus do not constitute cruel and unusual punishment.

b. Plaintiff Cannot Satisfy the Subjective Component5 Even if Plaintiff could establish the objective component of his Eighth Amendment6 claim, he has not produced any evidence that County Defendants acted with a culpable state of7 mind. To satisfy the subjective component of an Eighth Amendment claim, a plaintiff must8 prove that a specific defendant, in acting or failing to act, was deliberately indifferent to the9 plaintiffs health or safety. Farmer, 511 U.S. at 837.10 Under the deliberate indifference standard, a plaintiff must make a showing equivalent11 to criminal recklessness:12 A prison official cannot be found liable under the Eighth Amendmentfor denying an inmate humane conditions of confinement unless the13 official knows of and disregards an excessive risk to inmate health andsafety; the official must both be aware of facts from which the14 inference could be drawn that a substantial risk of serious harm exists,and he must also draw the inference.1516 Id at 837 (emphasis added); Estate of Cole v. Fromm, 94 F.3d 254,263 (7th Cir. 1996)17 (sustaining the lower court's grant of summary judgment, the court determined that decedent's18 estate failed to establish that the psychiatrist or other prison personnel disregarded an excessive19 risk to the decedent's health or safety by classifying him as potentially despite decedent's20 hallucinations encouraging suicide and depression). "A prison official's failure to alleviate a21 significant risk that he should have perceived but did not, while no cause for commendation,22 cannot under our cases be condemned as the infliction of punishment." Farmer at 838. Mere23 negligence is not sufficient to establish cruel and unusual punishment. Id at 835.24 In this case, there is no evidence that any of the County Defendants knew of and25 consciously disregarded an excessive risk to Plaintiffs safety. Specifically, there is no26 evidence that any of the County Defendants knew or were involved in any of the alleged acts.27 But even assuming they had knowledge and were involved, there still is no evidence that the28 County Defendants knew that publishing the list or making the announcements posed a


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1 substantial risk of harm to Plaintiff and that the County defendants still decided to publish the2 list or not respond to his grievance form. Nor does Plaintiff present any facts from which the3 County Defendants could have made the inference that disclosing his HIV-positive status would4 make him more susceptible to violence from other homosexual inmates within his area of the5 jail. Moreover, Officer Kennedy responded to Plaintiffs grievance that same day, stating that6 she had simply read the appointment as it was listed on the appointment sheet and did not7 intend to disclose Plaintiffs medical status.8 Because there is no evidence that any of the County Defendants had actual knowledge9 that Plaintiff would be exposed to an excessive risk of harm by announcing his medical10 appointments with the PACE Clinic or by providing the list to the jail staff, the Court should11 dismiss this action against the County Defendants.12 PLAINTIFF WAIVED HIS RIGHT TO PRIVACY.13 An individual can waive the right to privacy of his or her medical records. See Doe v.14 Marsh, 105 F.3d 106, 111 (2d Cir. 1997) (finding that a plaintiff with HIV may have waived his15 right to privacy by entering into a settlement agreement that he knew would become a matter of16 public record). Although the Ninth Circuit has yet to address this issue, multiple district courts17 have held that the right to privacy of medical records is waived when the plaintiffs medical18 condition is "at issue" in a grievance or lawsuit. Ferrell v . Glen-Gery Brick, 678 F.Supp. 111,19 112 (E.D.Pa. 1987) ("both courts and commentators alike have consistently taken the view that20 when a party places his or her physical or mental condition in issue, the privacy right is21 waived").22 Here, Plaintiff waived his right to privacy before July 2009, which is when the alleged23 acts contained in this action occurred. Indeed, Plaintiff repeatedly made his HIV IAIDS status a24 public record by filing multiple lawsuits that disclosed his medical condition. (See, e.g.,25 Request for Judicial Notice in support of Motion for Summary Judgment ("RJN"), ~~ 1,2,26 Exhibits A and B.)27 Further, to the extent Plaintiff is arguing that defendants Flores and Sepulveda violated28 his right to privacy by discussing his HIV/AIDS status with jail staff, this claim certainly fails

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1 because Plaintiff placed his HIV-positive status at issue when he submitted his grievance fonn.2 Therefore, Plaintiff should have reasonably expected that his HIV-positive status would be3 discussed with other correctional officers and supervisors at the jail.4 Therefore, because Plaintiff waived any right to privacy regarding his HIV-positive5 status, he is precluded from asserting a constitutional violation of his right to privacy against6 County Defendants for violation of his constitutional rights.7 D. PLAINTIFF FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES8 Under the Prison Litigation Reform Act, no action under Section 1983 or any other9 federal law may be brought by a prisoner unless he has first exhausted all administrative10 remedies. 42 U.S.C. 1997e(a); Booth v . c.o. Churner, 532 U.S. 731, 740 (2001). Here,11 Plaintiff has failed to do so. Although Plaintiff admits in his complaint that he submitted a12 grievance form through the Main Jail's grievance procedure regarding the alleged disclosures,13 he has failed to present facts that he has exhausted this grievance process.14 The DOC provides an administrative grievance process with different levels of review:15 (1) An informal resolution process whereby the inmate directs his complaint to the Officer in16 charge of the housing unit; (2) If there is no informal resolution, an inmate may fill out an17 Inmate Grievance Form and give it to any Officer. This Officer should give a signed copy of18 the grievance as a receipt to the inmate; (3) If the Officer cannot resolve the grievance, it will be19 forwarded to a Sergeant; (4) If the Sergeant is not able to resolve the grievance, it will be20 forwarded to a Watch Commander. The Watch Commander will determine the appropriate21 action(s) to take and ensure the inmate receives a written response; (5) Ifthe grievance is22 denied, a reason for denial will be noted on the grievance; and (6) The inmate may appeal the23 decision by writing a letter to the Division Commander. The Division Commander will either24 affirm or reverse the decision and will give the inmate a written response. (Heilman Dec., ~ 4,25 Exhibit A.) Separately, an inmate may correspond confidentially with either the Division26 Commander or the Chief of Correction and will receive a written response. (Id.)27 Here, Plaintiff has not demonstrated that he exhausted his administrative remedies by28 following the DOC's grievance process described above. Nor has he demonstrated that he





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1 made a separate complaint to the Division Commander or Chief of Correction. Instead,2 Plaintiff only alleges that on July 20, 2009 he filed a grievance form on which he asked the3 Main Jail to implement a blanket policy of discretion when making dorm-wide announcement4 pertaining to medical appointments. Then, three months later he filed his original lawsuit.5 Because Plaintiff filed this action before he exhausted his administrative remedies, his claims6 should be dismissed.7 ".8 CONCLUSION9 Based on the foregoing, the County Defendants respectfully request that the Court grant10 their Motion for Summary Judgment and dismiss Plaintiff's entire lawsuit with prejudice.1112131415161718192021222324252627

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Dated: March 16, 2011 Respectfully submitted,MIGUEL MARQUEZCounty Counsel

~--:::-7U---~~By: NEYSA A. FLIGORDeputy County CounselAttorneys for DefendantsDR. DEAN WINSLOW, EDWARD C.FLORES AND D. SEPULVEDA

Notice of Motion and Motion for SummaryJudgment of Defendants' and Memorandumof Points and Authorities in Support Thereof 13 C 09-04231 RS---------- --


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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISIONPROOF OF SERVICE BY MAIL

JAMES ALAN BUSH v . DR. DEAN WINSLOW, Santa Clara County Jail, EDWARD C .6 FLORES, Chief of Corrections AND D. SEPULVEDA, Captain of the Department ofCorrections.789

Case No. C 09-04231 RSI, Alexandra K.Weight, say:I am now and at all times herein mentioned have been over the age of eighteen years,employed in Santa Clara County, California, and not a R a r t y to the within action or cause; that

my business address is 70 West Hedding, East Wing, 9t Floor, San Jose, California 95110-1770. I am readily familiar with the County's business practice for collection and processing ofcorrespondence for mailing with the United States Postal Service. I served a copy of theDEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT,AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF byplacing said copy in an envelope addressed to:

James Alan BushDWF967 -08086698Santa Clara County Jail885 N. San Pedro AvenueSan Jose, CA 95110which envelope was then sealed, with postage fully prepaid thereon, on March 17,2011,and placed for collection and mailing at my place of business following ordinary businesspractices. Said correspondence will be deposited with the United States Postal Service at SanJose, California, on the above-referenced date in the ordinary course of business; there isdelivery Service by United States mail at the place so addressed.

I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct, and that this declaration was executed on March 17,2011, at SanJose, California.

Alexandra K.Weight f

28 384639.wpdMIGVEL MARQVEZ

motion for summary judgment (defendant dr. dean winslow, m.d.)

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