petition for writ of habeas corpus against dr. dean winslow, m.d

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PETITION PAGE 1 OF 11 EE605073

I.

INTRODUCTION

1. Petitioner, an in-custody patient, contends that he is being denied

necessary and adequate medical treatment and care for his serious

medical condition, i.e., HIV/AIDS, by Dr. Dean Winslow, M.D., who,

on March 8th, 2010, refused to provide the petitioner with needed

specialized treatment and care for his life-threatening illness, and

has thereafter, with notice and knowledge of the petitioner’s worsening

condition, continued to deprive the petitioner of proper care and

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

Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

CRIMINAL DIVISION

James Alan Bush,

Petitioner,

v.

Dr. Dean Winslow, M.D.,

Respondent.

Case No. EE605073

PETITION FOR WRIT OF HABEUS CORPUS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Judge Philip Pennypacker

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treatment by failing and refusing to direct that alternative care be

provided on a recurring basis as ordered by another physician also

specializing in the treatment and care of HIV/AIDS, thereby subjecting

the petitioner to cruel and unjust hardship in conscious disregard of

the petitioner’s rights guaranteed him by the Eighth Amendment to the

U.S. Constitution. Petitioner contends further that the aforementioned

acts of Dr. Winslow are knowing, deliberate and intentional, and in

conscious disregard for the health and well-being of the petitioner,

and were undertaken in retaliation for the petitioner having filed a

lawsuit against him, and were therefore punitive, and not justified by

medical reasons.

II.

PARTIES

2. Petitioner, James Alan Bush (DWF967-08086698), is a pretrial detainee

at the Santa Clara County Main Jail, and has been in the custody and

control of the aforementioned institution since December 13th, 2008;

he was treated for multiple serious medical conditions by Dr. Dean

Winslow, M.D., from February, 2009, and until March 8th, 2010.

3. Respondent, Dr. Dean Winslow, M.D., is a licensed physician under

contract to provide obligatory medical services to patient-inmates for

the Santa Clara County Department of Correction; he is an employee of

the Ira Greene P.A.C.E. Clinic, which provides exclusive treatment of

HIV-positive patients incarcerated by the aforementioned department.

III.

PROCEDURAL BACKGROUND

4. On August 1st, 2010, Petitioner filed a habeus corpus petition in the

Superior Court of California, County of Santa Clara, under case number

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EE605073, which raised the same issues as presented therein; it sought

an order from the aforementioned court, directing that the Santa Clara

County Department of Correction provide to the petitioner the same

specialized treatment and care for HIV/AIDS that is otherwise afforded

to all HIV-positive inmates, and which is necessary and essential for

those suffering from this life-threatening condition.

5. On October 7th, 2010, the Court, having found that the petition

stated a prima facie case for relief, ordered the Santa Clara County

Department of Correction, by and through its counsel of record, the

Santa Clara County Counsel, to file a response to the petition.

6. On October 22nd, 2010, Neysa Fligor, Deputy Counsel, Santa Clara

County Counsel, filed a response to the petition on behalf of the

Santa Clara County Department of Correction, in which MaryAnn Barry,

Associate Director, Santa Clara Valley Health & Hospital Systems,

declared, under penalty of perjury, that, prior to the August 1st,

2010, filing of the petition, and subsequent to the March 8th, 2010,

termination of the doctor-patient relationship by Respondent Winslow,

the petitioner received specialized treatment and care for HIV/AIDS,

and, in particular, on March 17th, 2010, and July 30th, 2010; she also

stated that the petitioenr was seen by a physician specializing in

the treatment and care of HIV/AIDS on August 19th, 2010, approximately

18 days after the petition was filed, implying that the petitioner was

receiving regularly scheduled treatment by such a physician, even

though this occurred nearly eight months after the termination of the

doctor-patient relationship by the respondent, and has not occurred

again since. [See Exhibit “A”.]

7. On November 9th, 2010, in spite of the contradiction between the

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statements made by the petitioner and by the respondent, the Court

denied the request by the petitioner for an evidentiary hearing in

order to resolve the conflicting statements using the petitioner’s

medical records, and then dismissed the petition based on the above-

described statements made by the respondent. [See Exhibit “B”.]

8. In this amended petition, Petitioner seeks the revocation of the

order dismissing the original petition, on the ground that statements

made by the respondent in a related civil proceeding subsequent to

the dismissal of the petition contradict the statements made by the

respondent in the response to the petition, and that, therefore, the

statements made in the aforesaid response were false. Specifically, in

her answer to the interrogatories propounded upon her by the petitioner

in the aforementioned civil proceeding, MaryAnn Barry admits that

the petitioner was not seen by any physician on March 17th, 2010,

and that on July 30th, 2010, the petitioner was treated by a regular

jail physician for an issue unrelated to HIV/AIDS, rather than by a

physician specializing in the treatment and care of HIV/AIDS; moreover,

although she indicated that Respondent Winslow did eventually issue a

referral to a physician-specialist 18 days subsequent to the filing of

the petition, she also admits that the respondent failed to provide any

further such treatment after the initial August 19th, 2010, referral,

in spite of such an order by the physician-specialist. [See Exhibit

“C”.]

IV.

STATEMENT OF FACTS

9. On March 8th, 2010, Petitioner was scheduled for a routine evaluation

and monitoring of his serious medical condition, i.e., HIV/AIDS, by the

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respondent, specifically, to review blood tests taken two days prior,

and to report new symptoms associated with the disease, which included

a severe, reoccurring skin rash, and a continuing intolerance to his

HIV medications; however, at the examination, the respondent refused

to treat the petitioner, citing the fact that the petitioner has filed

a civil suit against him as the only justification. The respondent then

ejected the petitioner from the examination of the petitioner, and

without treating his new symptoms, and without reviewing his blood

test results. The respondent further stated his intent to prohibit the

petitioner from receiving any specialized treatment and care for HIV/

AIDS in the future, in spite of the petitioner’s request to be seen by

another physician-specialist.

10. Over eight months after terminating the doctor-patient relationship,

and in an effort to mitigate the implications of his refusal to provide

necessary and adequate medical treatment to the petitioner, the

respondent referred the petitioner to another physician specializing

in the treatment and care of HIV/AIDS on August 19th, 2010, which was

18 days after the original petition was filed; however, since that time,

the respondent has refused to implement an order by the physician-

specialist for reguarly scheduled P.A.C.E. Clinic appointments. [See

Exhibit “C”.]

11. Petitioner alleges that the respondent has taken virtually no action to

provide alternative care subsequent to the August 19th, 2010, referral,

and that any such actions will be so delayed as to aggravate the

petitioner’s medical problems.

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V.

PRAYER FOR RELIEF

WHEREFORE, Petitioner is without remedy save by the issuance of a writ

of habeus corpus, and prays for relief as follows:

1. That the Court issue a writ of habeus corpus;

2. That the Court determine and declare that the acts of the respondent,

as set forth above, violate rights secured to the petitioner by the

Eighth Amendment to the U.S. Constitution;

3. That, upon hearing, the Court enjoin the respondent from refusing

to provide and/or delaying provision of necessary medical treatment

and care to the petitioner either at suitable and adequate facilities

within the Santa Clara County Main Jail or the P.A.C.E. Clinic or

elsewhere;

4. That the Court regularly evaluate and monitor the delivery of medical

treatment and care of the petitioner while confined at the Santa Clara

County Main Jail and insure the compliance of the respondent with the

Court’s oreders herein;

5. That the Court appoint counsel, and that the respondent be required

to pay the legal costs and expenses herein, including reasonable

provision for any additional costs incurred by the petitioner; and,

6. That the Court grant such further and additional relief that is

appropriate herein.

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VI.

VERIFICATION

I, James Alan Bush, state that I am the petitioner in this action. I

have read the foregoing petition for writ of habeus corpus and the facts

stated herein are true of my own knowledge, except as to those matters

that are therein stated on my own information and belief, and as to those

matter, I believe them to be true.

I declare under penalty of perjury that the foregoing is true and

correct and that this declaration was executed at San Jose, California, on

May 23rd, 2011.

[signature]Petitioner in pro per

DWF967-08086698PFN and Booking Number

VII.

MEMORANDUM OF POINTS AND AUTHORITIES

1. UNTREATED MEDICAL CONDITIONS CAN CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT.

There are two components to establishing violations of the Eighth

Amendment’s “cruel and unusual punishment” provision as it relates to

medical care: (1) the inmate must demonstrate a serious medical need;

and, (2) that the jail authorities knew about the medical need and

refused to remedy it [Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct.

1970, 128 L. Ed. 2d 811 (1994)].

A medical need is serious if it “has been diagnosed by a physician

mandating treatment or...is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention” [Ramos v.

Lamm, 639 F.2d 559, 575 (10th Cir. 1980)].

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Petitioner is, and was, in need of specialized medical treatment

and care to monitor his symptoms and the progression of his life-

threatening condition, which, without, the petitioner is at risk of

serious bodily injury and possibly death.

Deliberate indifference to serious medical needs is shown when

jail officials have prevented an inmate from receiving recommended

treatment or when an inmate is denied access to medical personnel

capable of evaluating the need for treatment [Ramos v. Lamm, 639 F.2d

559, 575 (10 Cir. 1980)]. A court has held that “a doctor’s decision to

take an easier and less efficacious course of treatment” may constitute

deliberate indifference [Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.

1989)]. A showing of indifference does not require proof of an intent

to inflict pain, but the conduct must demonstrte a knowing indifference

to a serious medical need [Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir.

1993)].

Having actual knowledge of the substantial risk of harm to the

petitioner, Respondent Winslow, by his refusal to provide necessary

medical care and by his failure to direct that alternative care be

provided, in deliberately indifferent to the serious medical needs of

the petitioner, especially because Respondent Winslow knows that the

petitioner must rely solely on him to provide such treatment and care

due to the petitioner’s confinement.

In Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed.

2d 251 (1986), the Court stated the settled rule that “the unnecessary

and wanton infliction of pain...constitutes cruel and unusual punishment

forbidden by the Eighth Amendment.”

By denying the petitioner needed specialized treatment and care,

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Respondent Winslow is subjecting the petitioner to a risk of serious

bodily harm and possibly death, constituting the infliction of cruel and

unusual punishment thereby, in violation of the Eighth Amendment to

the U.S. Constitution.

2. A DENIAL OF MEDICAL CARE FOR NON-MEDICAL REASONS CONSTITUTES AN EIGHTH

AMENDMENT VIOLATION.

If jail staff delay recommended medical treatment or refuse it

altogether for non-medical reasons, the Eighth Amendment is violated

[Durmer v. O’Carrol, 991 F.2d 64, 69 (3d Cir. 1993)].

Respondent Winslow refused to provide necessary medical care and

failed and refused to direct that alternative care be provided in

retaliation for the petitioner having filed a lawsuit against him.

(In other words, Respondent Winslow’s termination of the petitioner’s

medical care was punitive, and not justified by medical reasons.)

Furthermore, as shown in Exhibit “C”, Respondent Winslow has failed

and/or refused to follow another physician’s order that the petitioner

be seen by the P.A.C.E. Clinic, and has ever since continued to fail to

provide specialized treatment and care for HIV/AIDS to the petitioner.

Therefore, the aforementioned acts of Respondent Winslow constitute

a violation of the Eighth Amendment.

3. THE FAILURE TO PROVIDE PROPER MEDICAL CARE TO A PRETRIAL DETAINEE

VIOLATES THE EIGHTH AMENDMENT.

The United States Supreme Court has stated that “the deliberate

indifference to serious medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth

Amendment. This is true whether the indifference is manifested by

prison doctors in their response to the prisoner’s needs or by prison

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guards in intentionally denying or delaying access to medical care or

intentionally interfering with the treatment once prescribed” [Estelle

v. Gamble, 429 U.S. 97, 104-105, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)].

The courts have held that pretrial detainees are entitled to the same

constitutional protections afforded convicted inmates who have serious

medical needs [Roberts v. City of Troy, 773 F.2d 720, 773 (6th Cir.

1985)].

In 1994, the California legislature amended Penal Code §§ 2600 and

2601 to restrict the prisoner’s rights. The new amended law allows an

inmate to be deprived of “only such rights, as is reasonably related to

legitimate penological interests” [Penal Code § 2600]. Although on its

face, Penal Code § 2600 applies only to those confined in state prisons,

the California Supreme Court declared that equal protection principles

required its application to county jail inmates [De De Lancie v.

Superior Court, 31 Cal. 3d 865, 872, 183 Cal. Rptr. 866, 647 P.2d 142

(1982)]. In response to these changes, the legislature directed the

Department of Corrections to develop guidelines for “local detention

facilities” [Penal Code § 6030]. These regulations, codified in Title 15

of the California Code of Regulations, mandates that the local facility

“shall have the responsibility to ensure provision of emergency and

basic health care services to all inmates” [15 CCR § 1200]; however,

these regulations must be implemented so as not to invalidate a

constitutional right. The standards set forth in Title 15 “constitute

contemporary notions of decency and are advisory in nature,” but the

courts do not rely blindly on these standards as fixing constitutional

minimums [Inmates of the Riverside County Jail v. Clark, 144 Cal. App.

3d 850, 860, 192 Cal. Rptr. 823 (4th Dist. 1983)].

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One court has observed that “[t]he requirement of deliberate

indifference is less stringent in cases involving a prisoner’s medical

needs than in other cases involving harm to incarcerated individuals

because the state’s responsibility to provide medical care ordinarily

does not conflict with competing administrative concerns” [Hudson v.

McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992)].

VIII.

CONCLUSION

For the above-stated reasons, the relief sought in the petition should

be granted.

Dated: May 23rd, 2011

Respectfully submitted,

[signature]

James Alan BushPetitioner in pro per

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EXHIBIT A PAGE 1 OF 4 EE605073

Petitioner hereby incorporates Exhibit “A”, in support of the attached

Amended Petition for Writ of Habeus Corpus, which consists of the informal

response by the respondent and a sworn declaration that refute the claims

made by the petitioner in the original petition.

Specifically, on page 3, lines 6 through 8, of the informal response,

the respondent claims that the petitioner “received medical care for

[HIV/AIDS] at least three times since the [termination of the doctor-

patient relationship by Dr. Winslow].”

Likewise, on page 1, line 28, it is stated in the declaration that the

petitioner “received treatment for [HIV/AIDS]” on 3/17/2010, 6/30/2010, and

8/19/2010.





CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT A


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EXHIBIT B PAGE 1 OF 2 EE605073

Petitioner hereby incorporates Exhibit “B”, in support of the attached

Amended Petition for Writ of Habeus Corpus, which consists of the order

issued by the Superior Court of California on November 9th, 2010, denying

the original petition filed on August 1st, 2010.

Instead of ordering an evidentiary hearing in order to resolve the

conflict between the claims made in the petition and those made by the

respondent in his informal response, in which medical records could have

been presented to definitively settle the dispute, the presiding judge,

namely, the Honorable Gilbert T. Brown, denied the petition based on the

false statements made by the respondent.

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CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT B


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EXHIBIT B PAGE 2 OF 2 EE605073

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EXHIBIT C PAGE 1 OF 2 EE605073

Petitioner hereby incorporates Exhibit “C”, in support of the attached

Amended Petition for Writ of Habeus Corpus, which consists of the answer

to interrogatories by the respondent that were propounded upon him by the

petitioner in the civil suit filed against the respondent.

In the Response to Interrogatory No. 6, on page 14, the respondent

states that the petitioner did not receive any treatment for HIV/AIDS on

3/17/2010 or 6/30/2010, as was stated in the informal response.

Furthermore, in the Response to Interrogatory No. 5, the respondent

states that the petitioner did not receive specialized treatment and care

for HIV/AIDS, even though it was ordered by a physician-specialist on

8/19/2010, namely, Dr. Edward Brooks, M.D..





CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT C


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EXHIBIT C PAGE 2 OF 2 EE605073

petition for writ of habeas corpus against dr. dean winslow, m.d

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