reply to informal response of respondent dr. dean winslow, m.d

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REPLY PAGE 1 OF 10 EE605073

Pursuant to Rule 4.551(b) of the California Rules of Court and the Court’s

Request for Informal Response, Petitioner hereby replies to the informal

response of Respondent, Dr. Dean Winslow, M.D., and upon information,

belief, and established fact, states the following:

I.

INTRODUCTION

In this reply, Petitioner will show that, contrary to the respondent’s

claim otherwise, the petitioner has fully exhausted his administrative

remedies per the requirements of the Santa Clara County Department of

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

REPLY TO INFORMAL RESPONSE

Judge Philip Pennypacker

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Correction and Santa Clara Valley Medical Center Adult Custody Health

Services, and that the respondent still has failed to address the

petitioner’s grievance by refusing to provide specialized treatment and

care for his life-threatening condition.

Petitioner will also show that, although another physician ordered

that he receive specialized treatment and care for his subject condition,

the respondent refused to carry out the order; moreover, Petitioner will

prove that, since the termination of the doctor-patient relationship by

the respondent, the petitioner only received such treatment and care once,

and, since the filing of his grievance, and until present, the petitioner

has not received any such treatment and care.

Finally, Petitioner will demonstrate that the claim made in his petition

has not been brought in any other forum, and that the United States

District Court denied the respondent’s motion to declare the petitioner a

vexatious litigant in a related civil proceeding, which was brought on the

same grounds as the identical and unopposed motion brought in the Superior

Court, allowing the Court to reasonably conclude that this is the proper

forum for bringing the petitioner’s claim, and that the petitioner is not

disposed to bringing frivolous or meritless claims.

II.

ARGUMENTS

A. PETITIONER HAS FULLY COMPLIED WITH ALL ADMINISTRATIVE GRIEVANCE PROCESS

REQUIREMENTS FOR MEDICAL COMPLAINTS

During the period in which Respondent Winslow denied the petitioner

specialized medical treatment and care for his subject condition,

Petitioner initiated and filed a formal grievance in the manner

required by the Santa Clara County Department of Correction, which

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differs based on whether the issue is medical or non-medical in

nature.

For example, per the information booklet provided to inmates by

Santa Clara Valley Medical Center Adult Custody Health Services, all

complaints in regards to health care are sent to the Nurse Manager.

[See Exhibit “A”.]

Specifically, on September 7th, 2010, Petitioner directed his

grievance to a correctional officer, as required per the grievance

process provided by the Santa Clara County Department of Correction,

which was then forwarded to the Nurse Manager, per the aforedescribed

booklet. [See Exhibit “B”.]

On October 7th, 2010, the Nurse Manager responded to the grievance

by stating that Respondent Winslow arranged for specialized treatment

and care for the condition that is the subject of the petition, to

which both the Watch Commander and the Division Commander concurred

on October 23rd, 2010, and on October 25th, 2010, respectively. [See

Exhibit “C”.]

However, even if the petitioner’s fulfillment of the administrative

grievance process requirements was technically deficient in

one or more particulars, the Court may still conclude that the

aforedescribed acts on the part of the petitioner satisfy the

purposes of the administrative grievance process, which is to

facilitate an investigation of a dispute and its settlement without

court intervention [see Alliance Financial v. City and County of San

Francisco (1998) 75 Cal. Rptr. 2d 341, Cal.App.1.Dist.; see also Santee

v. Santa Clara County Office of Education (1990) 269 Cal. Rptr. 605, Cal.

App.6.Dist.].

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In this case, Respondent Winslow was not only notified of the

petitioner’s claim five days after he terminated the doctor-patient

relationship with the petitioner [see Exhibit “D”], but was also

notified by the aforementioned grievance over eight months prior to

the filing of the amended petition; however, nearly 16 months after

said termination of the doctor-patient relationship, the respondent

continues to ignore the petitioner’s claim.

Therefore, irrespective of the petitioner’s strict adherence,

Petitioner should be deemed as having substantially complied with

the grievance process requirements of both the Santa Clara County

Department of Correction and Santa Clara Valley Medical Center Adult

Custody Health Services in all respects.

B. CASE LAW CLEARLY ESTABLISHES THAT THE CONSTITUTIONAL RIGHTS OF THE

PETITIONER WERE VIOLATED

Factual basis for violation exists. Petitioner is a pretrial detainee

being held by the Santa Clara County Department of Correction, who

is being denied specialized treatment and care for his terminal

condition, i.e., HIV/AIDS. For over 16 months, Respondent Winslow, the

sole provider of such care to HIV-positive inmates, has refused to

provide any treatment whatsoever as a punitive measure for having filed

a lawsuit against him, in spite of an order by another physician that

alternative care be provided in his stead [see Exhibit “E”]; moreover,

Respondent Winslow has even refused to carry out a physician-issued

referral to general surgery for the treatment of a broken shoulder [see

Exhibit “F”], which occurred over two-and-a-half years ago, and still

causes pain and discomfort [see Exhibit “G”].

Untreated medical conditions can constitute cruel and unusual

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punishment. Case law clearly establishes that untreated medical

conditions can constitute cruel and unusual punishment. For example,

in Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed.

2d 811 (1994), the court stated that 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 jail authorities

knew about the medical need and refused to remedy it. (Note that in

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), the court established

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

physician as mandating treatment or ... is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.”)

Petitioner’s shoulder is obviously broken, and it is equally obvious

that he is in need of the same specialized treatment and care to

monitor the symptoms and the progression of his terminal illness that

is otherwise afforded to every other similarly situated inmate.

The court states further in Ramos v. Lamm, supra, that deliberate

indifference to a serious medical need 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.

Respondent Winslow is, per the above case law, deliberately

indifferent to the serious medical needs of the petitioner, in that

he knows, or should know, of the substantial risk of harm to the

petitioner’s health by his refusal to provide necessary medical care

and his failure to carry out referrals made by other physicians.

A denial of medical care for non-medical reasons constitutes an

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Eighth Amendment violation. Case law also establishes that a denial of

medical care for non-medical reasons constitutes an Eighth Amendment

violation. In Durmer v. O’Carrol, 991 F.2d 64, 69 (3d Cir. 1993), the

court held that, if jail staff delay recommended medical treatment or

refuse it altogether for non-medical reasons, the Eighth Amendment is

violated.

Respondent Winslow refuses to provide necessary medical care and

refused to direct that alternative care be provided in his stead,

in retaliation for having filed a lawsuit against him. In sum, the

respondent’s termination of the petitioner’s medical care was punitive,

and not justified by medical reasons. Respondent Winslow’s intent is

further evidenced by the fact that the respondent knows that the

petitioner must rely solely on him to provide specialized treatment and

care for HIV/AIDS due to the petitioner’s confinement, and by the fact

that the respondent has refused to follow another physician’s order

that the petitioner be seen by an outside HIV/AIDS specialist.

The aforementioned acts of Respondent Winslow constitute an Eighth

Amendment violation. When combined, the aforementioned acts of

Respondent Winslow constitute a violation of the Eighth Amendment to

the U.S. Constitution, in that a refusal to provide medical care for a

life-threatening condition subjects the petitioner to a risk of serious

bodily harm and possibly death, and in that a failure to treat an

obviously broken bone by refusing to carry out a physician’s order that

the petitioner be directed to general surgery would constitute “the

unnecessary and wanton infliction of pain,” thereby constituting cruel

and unusual punishment forbidden by the Eighth Amendment. [See Whitley

v. Albers (1986), 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed. 2d 251.]

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C. PETITIONER’S CLAIM IS PROPERLY BROUGHT IN THIS COURT

Petitioner has not brought his claim in any other forum. Although

the petitioner initially attempted to supplement the pleading in a

related civil case once pending against the respondent with the claim

made in his petition [see Exhibit “D”], the district court advised

the petitioner to bring his claim in a separate action because the

events giving rise to his claim occurred after the filing of the civil

complaint. [See Exhibit “H”.]

Consequently, because time is of the essence with respect to medical

claims, the petitioner chose the most expeditious means of resolving

his claim, i.e., a Petition for Writ of Habeus Corpus.

Therefore, there does not exist, nor has there ever existed, an

action in any other court in which the claim made in the petition is

also so made.

The United States District Court denied the respondent’s motion

to declare the petitioner a vexatious litigant. In a related civil

matter once pending against Respondent Winslow, the respondent sought

an order to declare the petitioner a vexatious litigant on the same

grounds as the identical motion brought in the Superior Court of

California (Civil Division); however, on August 23rd, 2010, the United

States District Court denied the respondent’s motion, ruling that, with

respect to the numerous suits brought by the petitioner, “there is not

evidence that [petitioner’s] suits were patently without merit. ... [T]

he record reflects that many of the actions were dismissed for failure

to prosecute, not ... because the claims were frivolous or filed with

the intention of harassing. The actions are varied enough in both the

nature of the claims and in the defendants served to escape the label

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of frivolous or harassing.” [See Exhibit “I”.] (The Court should note

that the petitioner did not abandon any of the dismissed suits; rather,

he filed an aggregate of claims in the United States District Court for

the Northern District of California, San Jose Division, under docket

number C 08-01354 (PR) JF, in which default judgment has been granted

against one defendant, and in which the claims made against the

remaining defendants are still pending.)

D. PETITION HAS NOT RECEIVED ANY SPECIALIZED TREATMENT AND CARE FOR

HIV/AIDS WITHIN THE RELEVANT TIME FRAME

From the time of the petitioner’s grievance, i.e., September 7th, 2010,

and until the time of the filing of his petition, i.e., May 23rd, 2011,

Respondent Winslow has refused to carry out the referral contained

in the petitioner’s medical records as made by another physician for

specialized treatment and care of HIV/AIDS, and has otherwise failed

and/or refused to provide to the petitioner the same specialized

treatment and care that is provided to every other HIV-positive inmate;

and, insodoing, the respondent, who knows that the petitioner relies

on him to provide such treatment and care due to his confinement,

is subjecting the petitioner to a risk of serious bodily injury and

possibly premature death, thereby constituting the infliction of cruel

and unusual punishment, in violation of the Eighth Amendment to the

U.S. Constitution [see Whitley v. Albers, supra].

Respondent Winslow refused to carry out a physician’s order to

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

As shown in the answer to interrogatories [see Exhibit “E”], Respondent

Winslow has effectively admitted that he has refused to carry out a

physician’s order that the petitioner receive specialized treatment and

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care for HIV/AIDS every three months.

Respondent Winslow has prohibited the petitioner from receiving any

specialized treatment and care for HIV/AIDS. Per the response to the

petitioner’s grievance [see Exhibit “C”], the petitioner was scheduled

to be seen by a physician specializing in the treatment and care

of HIV/AIDS subsequent to the filing of said grievance; however, the

petitioner was never seen by such a specialist, and, over 10 months

later, still has not been seen by any physician specializing in the

treatment and care of HIV/AIDS.

Dr. Cazmo J. Lukrich, M.D., does not specialize in the treatment

and care of HIV/AIDS and has never specifically treated the petitioner

for HIV/AIDS. The Santa Clara County Department of Correction provides

specialized treatment and care for HIV/AIDS to HIV-positive inmates

by and through the P.A.C.E. Clinic. Respondent Winslow, as an employee

of the aforementioned clinic, is the only physician under contract to

provide such specialized treatment and care, and, moreover, is the only

physician who is specifically qualified to provide specialized treatment

and care for HIV/AIDS; however, Dr. Lukrich is an employee of the

Santa Clara County Department of Correction and neither provides nor

specializes in the treatment and care of HIV/AIDS.

Furthermore, as the petitioner’s medical records show, Dr. Lukrich

has never provided such treatment and care to the petitioner.

Finally, an alternative to Respondent Winslow exists, namely, Dr.

Edward Brooks (P.A.C.E. Clinic), who has been, and can be, substituted

as a provider of specialized treatment and care for HIV/AIDS in the

event that the respondent is unavailable, as was the case on August

19th, 2010 [see Exhibit “E”].

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III.

CONCLUSION

For the reasons stated above, the petitioner requests the Court to grant

the relief sought in the petition that is the subject of this reply, or,

in the alternative, issue an order to show cause to the respondent and

grant the petitioner’s request for the appointment of counsel.

Dated: July 25th, 2011

Respectfully submitted,

[signature]

James Alan BushPetitioner in pro per

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EXHIBIT A PAGE 1 OF 4 EE605073

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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

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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

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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

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EXHIBIT D PAGE 1 OF 4 EE605073

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CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT D


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EXHIBIT E PAGE 1 OF 2 EE605073

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CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT E


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EXHIBIT E PAGE 2 OF 2 EE605073

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EXHIBIT F PAGE 1 OF 2 EE605073

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CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT F


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EXHIBIT F PAGE 2 OF 2 EE605073

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EXHIBIT G PAGE 1 OF 2 EE605073

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CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT G


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EXHIBIT G PAGE 2 OF 2 EE605073

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EXHIBIT H PAGE 1 OF 2 EE605073

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CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT H


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EXHIBIT H PAGE 2 OF 2 EE605073

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EXHIBIT I PAGE 1 OF 4 EE605073

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CRIMINAL DIVISION

In re

James Alan Bush,

On Habeus Corpus

Case No. EE605073

EXHIBIT I


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reply to informal response of respondent dr. dean winslow, m.d

Documents