Villery v. California Department of Corrections, et al.

Filing 123

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART and GRANTING Plaintiff's Motion for Preliminary Injunction IN PART 62 , 11 , 113 , 114 , 115 , 117 , signed by District Judge Dale A. Drozd on 3/22/2019: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JARED M. VILLERY,

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Plaintiff,

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No. 1:15-cv-00987-DAD-BAM

v.
JEFFREY BEARD, et al.,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART AND
GRANTING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION IN PART

Defendants.
(Doc. Nos. 62, 111, 113, 114, 115, 117)

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Plaintiff Jared M. Villery is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. This case proceeds
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on plaintiff’s claim against defendants Kendall, Acosta, Naficy, Jones, Guerrero, Aithal,

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Seymour, Carrizales, Woodard, Pallares, Hernandez, Fisher, Grimmig, and Miranda for deliberate
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indifference in violation of the Eighth Amendment, and against defendants Beard and Diaz for
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promulgation of a policy to deny single cell housing for inmates with serious mental disorders, in
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violation of the Eighth Amendment. Plaintiff’s claims arise out of allegations that he developed
Post-Traumatic Stress Disorder (“PTSD”) while in the custody of the California Department of

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Corrections and Rehabilitation (“CDCR”). Plaintiff claims that at multiple institutions and over

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several years, his PTSD was not properly considered by prison officials in determining his

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housing status.

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On February 2, 2018, plaintiff filed a motion for a preliminary injunction, seeking an

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order directing the Secretary of CDCR to house him in a single-occupancy cell. (Doc. No. 62.)

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On November 30, 2018, the assigned magistrate judge issued findings and recommendations,

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recommending that plaintiff’s request for preliminary injunctive relief be granted in part. (Doc.

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No. 111.)

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The findings and recommendations were served on the parties and contained notice that

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any objections thereto were to be filed within thirty days after service. (Doc. No. 111, at 38-39.)

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On December 26, 2018, plaintiff filed objections to the findings and recommendations. (Doc. No.

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113.) Defendants filed a response to plaintiff’s objections on January 7, 2019. (Doc. No. 115.)

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On December 28, 2018, defendants filed their own objections to the findings and

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recommendations. (Doc. No. 114.) Plaintiff filed a response to defendants’ objections on

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January 18, 2019. (Doc. No. 117.)

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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including the parties’ objections and responses to those objections, the court finds the findings

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and recommendations to be supported by the record and proper analysis, save and except as to the

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extent of the scope of the injunctive relief to be granted as explained below.

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In summary, the magistrate judge found that plaintiff met his burden of demonstrating that

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preliminary injunctive relief should be granted, but that ordering that plaintiff be housed in a

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single cell was beyond the proper scope of relief. Instead, the magistrate judge recommended that

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an order issue requiring that plaintiff’s central file be updated with a copy of an expert medical

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report prepared for this litigation by Dr. Mariposa McCall, M.D., dated July 13, 2018 (Doc. No.

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112 at 1–65 (the “McCall Report”)), for consideration by prison officials in making housing

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assignment determinations for plaintiff. Both parties have objected to this aspect of the findings

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and recommendations.
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The court will first address defendants’ objections to the pending findings and

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recommendations because they are broader in scope than plaintiff’s objections. Defendants

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object generally that it would be an abuse of the court’s discretion to grant plaintiff any

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preliminary injunctive relief in this case. They argue that the court should reject the pending

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findings and recommendations because the magistrate judge made clearly erroneous findings of

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fact and committed legal error by misapplying the applicable law therein.

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First, defendants argue that plaintiff did not have any serious medical need at the time

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plaintiff interacted with them. In support of this argument, defendants argue that the magistrate

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judge “failed to acknowledged that there have been periods of time during Plaintiff’s

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incarceration where he has not been diagnosed with PTSD or has only been given a provisional

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diagnosis.” (Doc. No. 114 at 12.) Certainly, there is evidence before the court which arguably

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cuts against a finding that plaintiff suffers from PTSD. However, there mere fact that exculpatory

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evidence exists cannot preclude the award of injunctive relief. Plaintiff is required to demonstrate

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a “likelihood of success on the merits,” not certainty of success. All. for the Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Defendants’ objections on this point are

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unpersuasive.

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Defendants next assert that even assuming plaintiff did have a serious medical need, he

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has presented no evidence that any defendants acted with deliberate indifference to that need. In

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this regard, defendants argue that plaintiff was not diagnosed with PTSD until after he

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encountered them. (Doc. No. 114 at 11–13.) To the contrary, the reports summarized in the

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pending findings and recommendations discuss plaintiff’s condition over a lengthy period of time,

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beginning with the 2007 event that the medical professionals found was the source of his PTSD,

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and continuing through the date of the testing. That summary includes an acknowledgement of

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the timing of the testing, the length of time that plaintiff had been found to be suffering from

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PTSD, and the findings regarding the change in plaintiff’s symptoms over time. The magistrate

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judge properly considered and rejected defendants’ argument that plaintiff was not diagnosed

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with PTSD until after he encountered them.

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Defendants next object that the findings and recommendations erred in finding that

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plaintiff was likely to establish deliberate indifference because at most, they claim, he has shown

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a mere difference of opinion, not a conscious disregard for his serious medical needs. (Doc. No.

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114 at 14–16.) In support of this contention defendants cite caselaw in which deliberate

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indifference was not found where plaintiffs have brought similar claims to those brought in this

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case. Defendants assert that the findings and recommendations here contradict long-established

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law and are therefore erroneous. Although the cases cited by defendants are relevant to the issue

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before the court, the mere fact that courts have reached different conclusions under different

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circumstances does not establish that the findings and recommendations in this case are flawed.

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Cases like this one are, by their nature, fact-intensive.

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Defendants next argue that the magistrate judge either ignored or minimized the evidence

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before the court in the findings and recommendations. For instance, defendants point to several

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incidents which, in their view, indicate that plaintiff is “feigning symptoms of PTSD” in order to

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“manipulate his housing placement.” (Doc. No. 114 at 16.) One of these facts is that, according

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to defendants, plaintiff admitted to staging a fight in an attempt to persuade prison officials to

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house him without a cellmate. Defendants’ assertion that the findings and recommendations

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“minimized” this fact, however, is a complete mischaracterization. The findings and

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recommendations cited plaintiffs’ history of fights or near-fights at several points throughout the

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analysis set forth therein, and this history factored heavily into the magistrate judge’s finding that

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the failure to provide injunctive relief could well result in plaintiff suffering irreparable harm.

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(Doc. No. 111 at 10–11, 13, 20–24, 27, 32–34.) Although defendants appear to interpret these

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fights as establishing that plaintiff is feigning symptoms to manipulate his housing assignment,

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that is certainly not the only reasonable interpretation to draw from the evidence before the court .

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One could also conclude from this evidence that plaintiff’s PTSD symptoms were so severe that

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he was willing to risk serious physical injury in order to avoid being housed with a cellmate. In

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sum, the court is satisfied that the magistrate judge properly considered all the relevant evidence

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and properly applied the law governing applications for preliminary injunctive relief.

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As noted above, both parties object to the scope and nature of injunctive relief
recommended by the magistrate judge.

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Plaintiff objects to the magistrate judge’s recommendation that the McCall Report be

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placed in his central file, arguing that an order so requiring is too narrowly drawn to provide

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sufficient relief under the circumstances. Plaintiff argues that CDCR staff will neither consider

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the McCall Report nor properly apply governing policy in his case. Instead, he asserts that the

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court must directly order defendant Diaz, as acting Secretary of CDCR, to house plaintiff in a

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single-cell or, at a minimum, order an immediate review of plaintiff’s need for single-cell status

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in light of the McCall Report. See Cal. Code Regs. tit. 15, § 3376.1(d)(3) (requiring referrals to

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the Dispute Resolution Board (DRB) when an institution head believes a DRB level decision for

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placement of an inmate is required because of an unusual threat to the safety of persons or public

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interest in the case).

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Defendants also object to the placement of the McCall Report in plaintiff’s central file

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because, they contend, it implicates protections of plaintiff’s health care information under the

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Health Insurance Portability and Accountability Act (“HIPAA”) of 1996. Defendants assert that

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plaintiff’s central file is available to non-medical, CDCR employees, and the medical assessment

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in the McCall Report would normally be placed in plaintiff’s health record, which is governed by

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HIPAA-compliant restrictions. Cal Code Regs., tit. 15 § 3402; 45 C.F.R. § 164.508; Civ. Code §

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56.11.

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Defendants’ objections arising from HIPAA compliance issues are well taken. Therefore,

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the court finds it appropriate to order that the McCall Report be placed in plaintiff’s health record,

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rather than in the central file.
Plaintiff’s objections pose a more difficult question. The court is cognizant of the PLRA’s

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restrictions on the issuance of preliminary injunctive relief which “must be narrowly drawn,

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extend no further than necessary to correct the harm the court finds requires preliminary relief,

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and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); see also

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Gilmore v. California, 220 F.3d 987, 999 (9th Cir. 2000).

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However, in the undersigned’s long experience in handling cases brought by prisoners

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under 42 U.S.C. § 1983, the facts of this case are extraordinary. The factual record presently

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before the court strongly suggests that plaintiff is suffering from PTSD, that officials at various

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CDCR facilities have been aware of plaintiff’s condition for some time, that plaintiff’s condition

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places him at risk of serious physical harm, and that plaintiff’s housing assignments within

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CDCR have not been modified to account for this serious mental condition. While this court’s

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ability to craft an injunctive remedy is circumscribed, it is not entirely curtailed. Moreover,

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having reviewed the factual history of this case, the court is skeptical that adding the McCall

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Report to plaintiff’s health records, without more, would remedy this problem. Based upon the

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compelling evidence presented, the undersigned concludes that additional preliminary injunctive

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relief is warranted.

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Balancing the factors discussed above, the court will order preliminary injunctive relief as

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follows. In addition to ordering that the McCall Report be placed in plaintiff’s health records, the

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court furthers orders defendant Diaz to ensure that an immediate review is undertaken to

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determine whether plaintiff’s condition requires that he be designated for single-cell status in light

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of the McCall Report. Written verification of compliance with this order must be filed with the

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court within thirty days after service of this order.

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For these reasons,

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The findings and recommendations issued on November 30, 2018 (Doc. No. 111)
are adopted in part, as described above;

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2.

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Plaintiff’s request for preliminary injunctive relief, filed on February 2, 2018 (Doc.
No. 62) is granted in part;

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The McCall Report shall be placed in plaintiff’s health record;

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Defendant Diaz shall ensure that an immediate review is undertaken to determine

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whether plaintiff’s condition requires that he be designated for single-cell status in

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light of the McCall Report; and

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Written verification of compliance with this order must be filed with the court
within thirty days after service of this order.

IT IS SO ORDERED.
Dated:

March 22, 2019
UNITED STATES DISTRICT JUDGE

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