Blocker v. Soto

Filing 37

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/09/17 vacating 22 FINDINGS AND RECOMMENDATIONS. Also, RECOMMENDING that respondent's motion to dismiss 13 be granted; and this action be dismissed. MOTION to DISMISS 13 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSHUA BLOCKER,

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No. 2:15-cv-1416 KJM KJN P

Petitioner,
v.

ORDER AND FINDINGS &
RECOMMENDATIONS

J. SOTO, Warden,

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Respondent.

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I. Introduction
Petitioner is a state prisoner, proceeding pro se and in forma pauperis. Petitioner filed an

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application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. In light of the

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objections to the May 10, 2016 findings and recommendations and the subsequent supplemental

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briefing submitted in connection thereto, the May 10, 2016 findings and recommendations are

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vacated, and the undersigned addresses herein respondent’s motion to dismiss the habeas petition

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as barred by the statute of limitations. For the reasons set forth below, respondent’s motion

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should be granted.

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II. Legal Standards

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth
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Circuit has referred to a respondent’s motion to dismiss as a request for the court to dismiss under

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Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420

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(1991). Accordingly, the court reviews respondent’s motion to dismiss pursuant to its authority

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under Rule 4.

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On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was
enacted. Section 2244(d)(1) of Title 8 of the United States Code provides:

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A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of
a State court. The limitation period shall run from the latest of –

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(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;

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(B) the date on which the impediment to filing an
application created by State action in violation of the Constitution
or laws of the United States is removed, if the applicant was
prevented from filing by such State action;

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(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.

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28 U.S.C. § 2244(d)(1). Section 2244(d)(2) provides that “the time during which a properly filed

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application for State post-conviction or other collateral review with respect to the pertinent

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judgment or claim is pending shall not be counted toward” the limitations period. 28 U.S.C.

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§ 2244(d)(2).

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Section 2244(d)(2) provides that “the time during which a properly filed application for

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State post-conviction or other collateral review with respect to the pertinent judgment or claim is

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pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). Generally,

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this means that the statute of limitations is tolled during the time after a state habeas petition has

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been filed, but before a decision has been rendered. Nedds v. Calderon, 678 F.3d 777, 780 (9th

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Cir. 2012). However, “a California habeas petitioner who unreasonably delays in filing a state

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habeas petition is not entitled to the benefit of statutory tolling during the gap or interval
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preceding the filing.” Id. at 781 (citing Carey v. Saffold, 536 U.S. 214, 225-27 (2002)).

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Furthermore, the AEDPA “statute of limitations is not tolled from the time a final decision is

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issued on direct state appeal and the time the first state collateral challenge is filed because there

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is no case ‘pending’ during that interval.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999),

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overruled on other grounds by Carey, 536 U.S. at 214. In Carey, the United States Supreme

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Court held that the limitation period is statutorily tolled during one complete round of state post-

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conviction review, as long as such review is sought within the state’s time frame for seeking such

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review. Id., 536 U.S. at 220, 222-23. State habeas petitions filed after the one-year statute of

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limitations has expired do not revive the statute of limitations and have no tolling effect.

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Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“section 2244(d) does not permit the

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reinitiation of the limitations period that has ended before the state petition was filed”); Jiminez v.

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Rice, 276 F.3d 478, 482 (9th Cir. 2001).

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III. Chronology

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For purposes of the statute of limitations analysis, the relevant chronology of this case is
as follows:

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1. Petitioner pled no contest to eight counts of second degree robbery and admitted strike,

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serious felony, and personal use of a deadly weapon allegations. (ECF Nos. 1 at 2; (Respondent’s

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Lodged Document (“LD”) 1.))

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2. On November 2, 2011, petitioner was sentenced to a determinate state prison term of
30 years. (LD 1.)

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3. Petitioner appealed the restitution order referenced in the abstract of judgment.

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4. On June 26, 2012, the California Court of Appeal for the Third Appellate District

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issued the following order:

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The trial court is directed to delete the references to the restitution
order in the minute order and abstract, hold a restitution hearing,
prepare an amended minute order and abstract reflecting the results
of that hearing, and forward a copy of the corrected abstract to the
Department of Corrections and Rehabilitation. In all other respects
the judgment is affirmed.

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(LD 2.)
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5. Petitioner did not appeal the June 26, 2012 order.

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6. On December 7, 2012, the Sacramento County Superior Court held a restitution

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hearing, at which petitioner was represented by counsel. (LD 3.) Petitioner did not appeal.

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7. On August 24, 2014,1 petitioner filed a petition for writ of habeas corpus in the

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Sacramento County Superior Court. (LD 4.) On October 27, 2014, the superior court denied the

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petition. (LD 5.)
8. On December 7, 2014,2 petitioner filed a petition for writ of habeas corpus in the

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California Court of Appeal for the Third Appellate District. (LD 6.) The appellate court denied

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the petition on December 18, 2014.

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9. On January 28, 2015, petitioner filed a petition for writ of habeas corpus in the

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California Supreme Court. (LD 8.) On April 29, 2015, the California Supreme Court denied the

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petition without comment. (LD 9.)

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10. On June 28, 2015, petitioner filed the instant federal petition. (ECF No. 1.) See Rule
3(d) of the Federal Rules Governing Section 2254 Cases.

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11. Respondent filed the motion to dismiss on October 7, 2015. (ECF No. 13.) Petitioner

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was granted multiple extensions of time. (ECF Nos. 15, 17, 19.) On March 30, 2016, petitioner

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was granted one final extension of time; his opposition was due on or before April 29, 2016.

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(ECF No. 21.) Petitioner did not file an opposition.

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IV. Statutory Tolling

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Under 28 § 2244(d)(1)(A), the limitations period begins running on the date that

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petitioner’s direct review became final or the date of the expiration of the time for seeking such

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review. Id. Where the state appellate court remands for re-sentencing, the limitations period does

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not begin until both the conviction and re-sentencing claims are final on direct review. Burton v.

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Stewart, 549 U.S. 147, 156-57 (2007) (per curiam).

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Unless otherwise indicated, all of petitioner’s subsequent court filings were given benefit of the
mailbox rule. See Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (under the mailbox
rule, the petition is deemed filed when handed to prison authorities for mailing).
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This petition was signed on December 3, 2014, but the proof of service is dated December 7,
2014.
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In this case, petitioner did not appeal the superior court’s December 7, 2012 restitution

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order. Accordingly, his conviction became final sixty days later on February 5, 2013. Cal. Rules

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of Court 8.308(a); Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). The AEDPA statute

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of limitations began to run the following day, on February 6, 2013. Patterson v. Stewart, 251

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F.3d 1243, 1246 (9th Cir. 2001). Absent tolling, petitioner’s last day to file his federal petition

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was on February 6, 2014.

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Petitioner filed his first state court petition on August 24, 2014, over six months after the

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limitations period expired. Thus, this action and his subsequent state petitions were not “properly

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filed” so as to toll the running of the limitations period. Moreover, a state court habeas petition

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filed beyond the expiration of AEDPA’s statute of limitations does not toll the limitations period

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under § 2244(d)(2). See Ferguson, 321 F.3d at 823; Jiminez, 276 F.3d at 482 (state habeas

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petition filed after the statute of limitations ended “resulted in an absolute time bar”).

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Accordingly, petitioner is not entitled to statutory tolling.

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V. Equitable Tolling

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The limitations period expired on February 6, 2014, and petitioner did not file the instant
petition until June 28, 2015. Absent equitable tolling, the instant petition is time-barred.
The one year statute of limitations for filing a habeas petition may be equitably tolled if

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extraordinary circumstances beyond a prisoner’s control prevent the prisoner from filing on time.

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Holland v. Florida, 560 U.S. 631, 645 (2010). A litigant seeking equitable tolling must establish:

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“(1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance

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stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Ninth Circuit has

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explained:

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To apply the doctrine in “extraordinary circumstances” necessarily
suggests the doctrine’s rarity, and the requirement that
extraordinary circumstances “stood in his way” suggests that an
external force must cause the untimeliness, rather than, as we have
said, merely “oversight, miscalculation or negligence on [the
petitioner’s] part, all of which would preclude the application of
equitable tolling.

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Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.) (internal citation omitted), cert.

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denied, 130 S. Ct. 244 (2009); see also Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.
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2003) (petitioner must show that the external force caused the untimeliness). It is petitioner’s

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burden to demonstrate that he is entitled to equitable tolling. Espinoza-Matthews v. People of the

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State of California, 432 F.3d 1021, 1026 (9th Cir. 2005). “The diligence required for equitable

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tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’” Holland, 560 U.S.

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at 653 (internal citations and additional quotation marks omitted).

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Here, petitioner alleged no facts in his petition explaining his delay in bringing the instant

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action. Despite being granted numerous extensions of time, petitioner did not file an opposition

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to the motion to dismiss. However, petitioner filed objections3 to the May 10, 2016 findings and

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recommendations claiming, for the first time, that he suffers from a serious mental illness that

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warrants equitable tolling, and that the failure of prison officials to provide mentally ill inmates

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with adequate legal assistance is tantamount to extraordinary circumstances that also warrants

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equitable tolling. In response to the court’s further briefing order, respondent filed a response to

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the objections, accompanied by petitioner’s prison mental health and medical records from the

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beginning of his incarceration in 2011 through 2016, as well as other pertinent documents. (ECF

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No. 31-1 to 31-18.) On October 14, 2016, petitioner filed a reply to petitioner’s response, which

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states that another prisoner “assisted/drafted/prepared” the reply. (ECF No. 35 at 3.) On January

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3, 2017, petitioner filed a supplemental traverse with the assistance of an unidentified inmate

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legal assistant.

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A. Mental Illness

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1. Equitable Tolling Test

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The Ninth Circuit has articulated a specific, two-part test for an equitable tolling claim
based on a petitioner’s mental impairment:

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(1) First, a petitioner must show his mental impairment was an
“extraordinary circumstance” beyond his control by demonstrating
the impairment was so severe that either

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In his objections, petitioner primarily argued procedural default. (ECF No. 23.) However, as
argued by respondent, state procedural default does not apply here. White v. Martel, 601 F.3d
882, 884 (9th Cir. 2010) (the adequacy analysis used to decide state procedural default issues is
inapplicable to the determination of whether a federal habeas petition is barred by the federal
statute of limitations).
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(a) petitioner was unable to rationally or factually to personally
understand the need to timely file, or
(b) petitioner’s mental state rendered him unable personally to
prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the
claims to the extent he could understand them, but that the mental
impairment made it impossible to meet the filing deadline under the
totality of the circumstances, including reasonably available access
to assistance.

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Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) (citations omitted) (italics in original);

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see also Orthel v. Yates, 795 F.3d 935, 938 (9th Cir. 2015) (“A petitioner seeking equitable

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tolling on the grounds of mental incompetence must show extraordinary circumstances, such as

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an inability to rationally or factually personally understand the need to timely file, or a mental

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state rendering an inability personally to prepare a habeas petition and effectuate its filing.”).

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“The relevant question [is,] ‘[d]id the mental impairment cause an untimely filing?’”

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Stancle v. Clay, 692 F.3d 948, 959 (9th Cir. 2012) (quoting Bills, 628 F.3d at 1100 n.3.) Bills

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provides further guidance for applying its two-part test:

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[T]o evaluate whether a petitioner is entitled to equitable tolling, the
district court must: (1) find the petitioner has made a non-frivolous
showing that he had a severe mental impairment during the filing
period that would entitle him to an evidentiary hearing; (2)
determine, after considering the record, whether the petitioner
satisfied his burden that he was in fact mentally impaired; (3)
determine whether the petitioner’s mental impairment made it
impossible to timely file on his own; and (4) consider whether the
circumstances demonstrate the petitioner was otherwise diligent in
attempting to comply with the filing requirements.

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Bills, 628 F.3d at 1100-01. “This reiterates the stringency of the overall equitable tolling test: the

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mental impairment must be so debilitating that it is the but-for cause of the delay, and even in

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cases of debilitating impairment the petitioner must still demonstrate diligence.” Yeh v. Martel,

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751 F.3d 1075, 1078 (9th Cir.), cert. denied sub nom. Yeh v. Biter, 135 S. Ct. 486 (2014), citing

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Bills, 628 F.3d at 1100.

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A petitioner alleging a severe mental impairment during the filing period is not entitled to

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an evidentiary hearing unless he or she makes “a good faith allegation that would, if true, entitle

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him to equitable tolling.” Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003) (remanding for
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consideration of whether the petitioner’s delayed filing was “attributable to psychiatric

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medication which deprived petitioner of any kind of consciousness” where the petitioner had

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demonstrated “evidence of serious mental illness” by attaching prison psychiatric and medical

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records). The district court must take care to ensure that the record regarding the petitioner’s

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mental illness is sufficiently developed to rule on the tolling issue. See Chick v. Chavez, 518

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Fed. Appx. 567, 568 (9th Cir. 2013) (remanding “for further development of the record as to

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[petitioner]’s mental competency and, if necessary, an evidentiary hearing”); see Bills, 628 F.3d

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at 1099-1100 (remanding where the petitioner was in the lowest percentile for verbal IQ, verbal

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comprehension and working memory, and, according to clinical psychologists, was incapable of

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inferential thinking necessary to complete a federal habeas form). Nevertheless, “[w]here the

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record is amply developed, and where it indicates that the petitioner’s mental incompetence was

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not so severe as to cause the untimely filing of his habeas petition, a district court is not obligated

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to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner’s

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allegations of mental incompetence.” Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010); See

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also Orthel, 795 F.3d at 939-40.
2. The Parties’ Positions

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a. Respondent

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Respondent argues that petitioner fails to detail the exact nature of his mental illness, the

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time period he suffered from such impairments, and how they prevented him from timely

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challenging his conviction. (ECF No. 31 at 4.) Rather, petitioner’s declaration appended to his

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objections contains only generalized statements. Also, petitioner fails to demonstrate his alleged

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incompetence throughout the relevant limitations period. Instead, the record reflects that

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petitioner received mental health treatment for many years, and there is a paucity of evidence that

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he suffered from a severe impairment during the year that the limitations period ran. (ECF No. 31

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at 5.) Specifically, petitioner was included in the CCCMS4 level of care from the beginning of his

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“CCCMS” is an acronym for the Correctional Clinical Case Management System and inmates
designated to this level of care are those “whose symptoms are under control or in partial
remission and can function in the general prison population, administrative segregation, or
segregated housing units.” Coleman v. Schwarzenegger, 2009 WL 2430820, *15 n.24 (E.D. Cal.
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incarceration in 2011 through July 2015, and was treated as an outpatient and usually housed in

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the general population. (ECF No. 31 at 6.) Petitioner was placed in EOP in August of 2015.

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(ECF No. 31 at 6.) But even then, petitioner’s mental health was noted as “stable” and “no

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mental health issues noted/reported.” (ECF No. 31 at 6.) In addition, from 2013 to 2014,

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petitioner’s GAF scores typically ranged in the mid-60s. Respondent points out that while

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petitioner’s GAF score was in the mid 20s to 30s both before and after the limitations period, he

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also received GAF scores of 65-70. (ECF No. 31 at 7.)

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Respondent argues that this case is similar to Orthel because petitioner’s mental health did
not significantly change in the years immediately before and after the limitations period ran, and

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the record reflects that petitioner’s mental state did not worsen to the extent he required EOP

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level of care until shortly after he filed the instant petition. Despite the numerous notations

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reflecting that petitioner was diagnosed with depression, antisocial personality disorder,

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schizoaffective disorder and bipolar disorder throughout his incarceration, the records do not

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reflect evidence of urgent or emergent mental health issues indicating a lack of understanding or

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inability to timely file a federal petition. (ECF No. 31 at 8.) The records documenting

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petitioner’s cognitive function largely indicate he was stable, alert, cooperative, his thoughts were

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oriented, and his behavior was within normal limits. Although petitioner was prescribed

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medications, the records noted petitioner was stable on the medications. (ECF No. 31 at 9.)

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Moreover, respondent points out that there are records that show petitioner may have been

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exaggerating symptoms, and contain warnings for prison personnel to “consider the presence of

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secondary gain given his current Ad-Seg term and multiple pending 115s.” (ECF No. 31 at 7.)

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The record contains notations that petitioner was non-compliant on the medications and with the

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2009); Washington v. McDonald, 2010 WL 1999469 (C.D. Cal. Feb. 19, 2010). The EOP level
of care is for inmates who suffer “Acute Onset or Significant Decompensation of a serious mental
disorder characterized by increased delusional thinking, hallucinatory experiences, marked
changes in affect, and vegetative signs with definitive impairment of reality testing and/or
judgment,” and who are unable to function in the general prison population but do not require
twenty-four hour nursing care or inpatient hospitalization. Coleman, 2009 WL 2430820, *15
n.24 (citation omitted). The Mental Health Crisis Bed (“MHCB”) Placement is “for inmates who
are markedly impaired and/or dangerous to others as a result of mental illness, or who are
suicidal, and who require 24-hour nursing care.” Id. (citation omitted).
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mental health treatment regimen, i.e., not attending groups or 1:1 sessions, which caused his

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mental state to decline. (ECF No. 31 at 9.) Respondent argues that when a prisoner contributes

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to his condition by refusing treatment, his circumstances are no longer beyond his control, thus

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precluding equitable relief. (Id.)

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In addition, respondent contends that the records reflect that petitioner understood the

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need to file a petition, and had the ability to avail himself of legal assistance. (ECF No. 31 at 9.)

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For example, petitioner filed three state habeas petitions, either on his own or with assistance, in a

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timely and orderly fashion, as well as the instant petition and numerous motions and pleadings in

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this case. (ECF No. 31 at 10.) In addition, petitioner filed four articulate inmate grievances:

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three challenging rules violation reports (in 2013, 2014 & 2015), and one regarding property

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(2015). In support, respondent relies on Yeh, 751 F.3d at 1078 (no equitable tolling for mental

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impairment where the prisoner repeatedly sought administrative and judicial remedies, including

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three state habeas petitions); and Roberts, 627 F.3d at 773 (prisoner managed to file several state

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post-conviction collateral actions within the relevant time frame; thus, his mental incompetence

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was not so “severe” as to cause untimely filing). Also, petitioner’s filings undercut his claim that

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he is entitled to equitable tolling because prison officials allegedly denied him meaningful access

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to the law library as a mentally ill inmate in violation of the Americans with Disabilities Act

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(“ADA”). (ECF No. 31 at 10.) Respondent provides evidence that petitioner has not been

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designated as disabled for purposes of the ADA, and he has not been denied mental health

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treatment. Respondent contends that prisoners have no right to legal assistance when pursuing

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habeas relief, and that petitioner concedes he has “zero understanding of the law,” which also

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does not warrant equitable tolling. (ECF No. 31 at 10-11.)

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Finally, respondent argues that petitioner fails to show diligence from 2011 through July

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2015 when the records reflect he was stable and functioning, and filing grievances and habeas

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petitions.

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b. Petitioner
Petitioner contends that his mental impairments of schizo-affective disorder, bipolar Type
I, manic-depression, for which he is taking anti-psychotic medications, renders him incompetent
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and were the extraordinary circumstance beyond his control which prevented him from timely

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filing his federal petition. (ECF No. 35 at 1.) Prison officials denied petitioner beneficial access

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to the law library as a qualified individual suffering from a serious disability of serious mental

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illness, in violation of the ADA. (ECF No. 35 at 4.) He argues that the Supreme Court has found

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that mentally ill prisoners should be provided with assistance, meaning help with reading legal

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papers to discover meritorious legal claims and preparing legal documents, citing Armstrong v.

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Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997). The CDCR prison law library staff and inmate

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clerks are prohibited from doing anything more than providing inmates with legal textbooks, legal

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research guides, and legal forms, thus denying mentally ill inmates adequate legal assistance.

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(ECF No. 35 at 6.) The denial of such assistance constitutes extraordinary circumstances outside

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his control because the CDCR does not provide paralegals or attorneys to assist mentally ill

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inmates, violating Lewis v. Casey, 518 U.S. 343, 354 (1996). (ECF No. 36 at 7.)

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In his supplemental traverse brief, petitioner contends he was housed at an approved

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CCCMS facility that also housed EOP inmates, and claims that the law library did not provide

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adequate inmate clerks that knew what they were doing. (ECF No. 36-1 at 2.) Thus, petitioner

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had to find an “inmate legal assistant willing to help, as general population looks down on

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inmates that are participating in the mental health system.” (Id.)

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Petitioner recounts his drug regimen:

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In 2012, Risperdal, Remeron, and Mirtazapine, which alter the mind to reduce “schizo-

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affects” and voices in his mind;

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In late 2012 and early 2013, Vistaril, hydroxyzine, and Abilify; and

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In 2014, Remeron and Strattera, prescribed by a psychiatrist, due to increase of “schizo-

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affective” episodes.
Petitioner appears to argue that there were disputes among the psychologist, psychiatrist

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and licensed clinician, but claims it was clear that the psychiatrist believed petitioner continued to

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hear voices and suffer “schizo-effects,” and that petitioner did not receive EOP treatment until

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2015, when the Coleman attorney and petitioner’s psychiatrist exerted pressure to do so. (ECF

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No. 36-1 at 3.) Further, petitioner argues that when an individual hears voices or suffers a schizo
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episode, he cannot distinguish between what’s real and what’s fantasy or only in the mind,

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preventing him from being able to challenge his conviction or to understand what to do or how to

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do it.

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Petitioner claims that, due to his recurrent psychosis, he has historically taken Risperdal,

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which causes abnormal thinking and confusion. Since 2010, before and after his incarceration,

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petitioner was taking Remeron, which causes insomnia, dyspepsia, abnormal dreams, abnormal

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thinking, mood or mental changes, agitation and confusion. (ECF No. 36-1 at 3.) Petitioner

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provides the listed side effects from drugs.com for such drugs. (ECF No. 36-1 at 7-14.)

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Petitioner was also prescribed Vistaril and Abilify which cause, respectively, somnolence,

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attention disturbance, fatigue, depression, confusion, disorientation, and hallucinations; and

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drowsiness/dizziness, sedation, loss of balance control, anxiety, inability to sit still, hallucination,

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delusion, and affect lability. (ECF No. 36-1 at 4.) Petitioner also provides the listed side effects

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for these drugs from drugs.com. (ECF No. 36-1 at 16-28.)

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Petitioner argues that most of these medications combined to increase the side effects on

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his ability to function in his daily activities without assistance, resulting in problems with his

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ability to understand how to meet or seek tolling of the deadline. (ECF No. 36-1 at 4.) Petitioner

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contends he was only able to file grievances with the assistance of CDCR staff, who are

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unavailable to assist in filing legal motions or actions. (ECF No. 36-1 at 4-5.)

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3. CDCR Mental Health Services Delivery System

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Respondent provided the program guide overview, revised in 2009, identifying the various
levels of mental health care, in pertinent part:
a. Correctional Clinical Case Management System (“CCCMS”)

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--Stable functioning in the general population, Administrative Segregation Unit (ASU or
ad seg), or Security Housing Unit (SHU); and

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--Criteria not met for higher levels of care; and

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--Exhibits symptom control, or is in partial remission as a result of treatment.

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--These conditions usually result in Global Assessment of Functioning (“GAF”)5 scores of

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50 and above.
b. Enhanced Outpatient Program (“EOP”)

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c. Mental Health Crisis Bed (“MHCB”) Placement

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--Marked impairment and dysfunction in most areas (daily living activities,
communication and social interaction) requiring 24-hour nursing care; and/or:

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--Dangerousness to others as a consequence of a serious mental disorder, and/or
dangerousness to self for any reason.

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--These conditions usually result in a GAF score of less than 30.
(ECF No. 31-16 at 2-3)

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4. Mental Health Records6

13

On November 28, 2011, petitioner was excluded from the Developmental Disability

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5

“Global Assessment of Functioning,” or “GAF,” is a scale used by clinicians to assess an
individual’s overall level of functioning, including the “psychological, social, and occupational
functioning on a hypothetical continuum of mental health-illness.” Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders with Text Revisions 32 (4th ed. 2004)
(“DSM IV-TR”). A GAF of 61-70 indicates some mild symptoms (e.g., depressed mood and
mild insomnia) or some difficulty in social, occupational, or school function (e.g, occasional
truancy, or theft within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships. Id. A GAF of 51-60 indicates moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school function (e.g., few friends, conflicts with peers or co-workers.) Id. A 4150 rating indicates serious symptoms such as suicidal ideation, severe obsessional rituals, or
serious impairment in social, work, or school functioning. A GAF of 31-40 indicates: “Some
impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) OR major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to
work; child frequently beats up younger children, is defiant at home, and is failing at school.)”
Id. A GAF of 21-30 indicates: “Behavior is considerably influenced by delusions or
hallucinations OR serious impairment in communication or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in
almost all areas (e.g., stays in bed all day; no job, home, or friends).” Id.
6

In citing to exhibits, the undersigned uses CM/ECF numbers rather than the Bate stamped
numbers provided on the exhibits. Not all exhibits are referenced below because medical records
not relevant to the analysis, and mental health records for time frames before the limitations
period ran, as well as long after the limitations expired, were provided.
13

1

Program (“DDP”) after receiving a passing score on the cognitive test “Quick.” (ECF No. 31-2 at

2

101.)

3

On December 14, 2011, B. Safaei-Far, Psy.D. performed a mental health evaluation while

4

petitioner was housed in general population, and not taking psychotropic medications (“reports he

5

does not need it at this time.”). (ECF No. 31-2 at 182, 184.) His TABE7 was 6.6; petitioner

6

reported he completed 7th grade, but had to stop school to take care of his siblings. (ECF No. 31-

7

2 at 183.) All of the boxes on the mental status exam form were marked “within normal limits”

8

and “none,” except that his affect was sad, his mood depressed, and he reported “hearing people

9

talking to him; hears the voices of his dead family.” (ECF No. 31-2 at 185.) Petitioner had a

10

history of attempting suicide, and was at future risk of such attempt based on his poor coping

11

skills and impulsivity. (ECF No. 31-2 at 186.) Diagnosis: MDD (major depressive disorder)

12

recurrent severe with psychotic features (Axis I); GAF 55; moderate functional impairment due to

13

mental illness symptoms. (ECF No. 31-2 at 187.) Petitioner admitted to CCCMS level of care,

14

but managed symptoms without medication. (ECF Nos. 31-2 at 187; 31-2 at 98.) Suicide risk

15

evaluation also performed. (ECF No. 31-3 at 8-9.)

16

On January 19, 2012, petitioner was receiving CCCMS level of care and had a GAF of 55.

17

(ECF No. 31-2 at 98, 99.) His TABE was 6.6. On January 20, 2012, petitioner, housed at NKSP,

18

was prescribed Risperdal 2 mg (antipsychotic), and Remeron 15 mg (antidepressant). (ECF Nos.

19

31-1 at 24; 31-2 at 97.) Diagnosis: Psychotic disorder, not otherwise specified (“NOS”);

20

depressive disorder, NOS (Axis I). (ECF No. 31-11 at 40.)

21

On February 6, 2012, petitioner reported hearing his family from both inside and outside

22

his head, present all the time; voices consist of women, men and children, but not animals/music

23

or machinery. He sees “flashes. . . colors. . . stars” and “shadows . . . off to the side.” He feels

24

paranoid. Tries to read but “can’t concentrate.” (ECF No. 31-11 at 30.) Petitioner was taking

25

Risperdal 2mg and Remeron 15 mg; side effects noted as arm jerking (bilateral). (Id.)

26

7

27
28

TABE stands for “Test of Adult Basic Education,” which measures an inmate’s ability to
understand and participate in the disciplinary process. See Cal. Code Regs., tit. 15, § 3000
(defining “effective communication”). When an inmate has a TABE score of 4.0 or below, prison
staff must assess whether the inmate requires a Staff Assistant. Id.
14

1

Stopped Risperdal due to EPS (drug-induced movement disorders) and lack of clear indication;

2

psychotic symptoms are of atypical quality); increased Remeron to 30 mg for depression. (ECF

3

No. 31-11 at 30.) Mirtazapine 15 mg stopped. (ECF No. 31-2 at 16.)

4

On March 13, 2012, petitioner’s GAF score was 60. (ECF Nos. 31-2 at 95; 31-11 at 38.)

5

He was evaluated for suicide risk; mental status exam reflected appearance, sleep, mood, and

6

speech were within normal limits; appetite fair; affect restricted; general coping fair; compliance

7

with medication, had hope, and was oriented x 3. (ECF No. 31-3 at 6-7.) CCCMS continued.

8
9

On April 9, 2012, petitioner reported feeling “down and out,” got into a fight with another
inmate when another inmate got upset over a piece of bread; continues to work as a porter;

10

complained of “voices in his head,” unintelligible whispers, and of his mother saying encouraging

11

things; saw “shadows” in his peripheral vision. (ECF No. 31-11 at 37.) Reported “lazy” feeling

12

on Remeron 30 mg; prescription reduced to 15 mg. (ECF Nos. 31-11 at 37; 31-2 at 15.)

13

Mirtazapine 30 mg stopped. (ECF No. 31-2 at 15.) Diagnosis of psychiatrist R. Shahbazian,

14

M.D.: depressive disorder NOS; no evidence of genuine psychosis (Axis I); GAF 56. (ECF No.

15

31-11 at 37.)

16

On May 30, 2012, petitioner reported feeling depressed and sleepy; GAF was 55; MDD,

17

recurrent, moderate. (ECF No. 31-11 at 36.) On June 11, 2012, Vistaril 50 mg prescribed. (ECF

18

No. 31-2 at 13.) On June 19, 2012, clinical summary noted petitioner takes Vistaril, stable, mood

19

and sleep stable, no significant distress or crisis, retain in CCCMS. (ECF No. 31-2 at 177.)

20

Petitioner had history of depression and auditory hallucinations, Vistaril prescribed for nocturnal

21

agitation, TABE 6.6, Diagnoses: MDD (severe psychosis) (Axis I); and antisocial trends (Axis

22

II); GAF 55. (ECF No. 31-2 at 177, 179.) All of the boxes on the mental status exam form were

23

marked “within normal limits” and “none.” (ECF No. 31-2 at 180.) All of the boxes on the level

24

of care considerations form marked “no,” indicating petitioner was able to adequately function at

25

CCCMS level of care or that he did not demonstrate chronic psychiatric symptoms that have not

26

responded to at least six months of treatment. (ECF No. 31-2 at 180.)

27

On August 23, 2012, during brief mental health evaluation, petitioner said he was “doing

28

good,” that “Vistaril helps,” and denied side effects from medication. (ECF No. 31-3 at 5.) Axis
15

1

I diagnosis: adjustment disorder. (Id.) On August 24, 2012, hydroxyzine pamoate 50 mg

2

renewed. (ECF No. 31-2 at 12.) On August 29, 2012, O. Valdes, M.D., Psychiatrist, saw

3

petitioner cell side due to time constraints for brief mental health evaluation; petitioner reported

4

he was “all right;” GAF 57. (ECF No. 31-3 at 4.)

5

On September 5, 2012, petitioner reported he was “stressing but managing. I stay to

6

myself a lot to avoid trouble. Sometimes I hear voices, but they don’t bother me.” (ECF No. 31-

7

11 at 31.) Petitioner was medication compliant, on Vistaril. (Id.) On October 23, 2012,

8

petitioner reported he was fine; feels anxious at night time. (ECF No. 31-11 at 27.) Hydroxyzine

9

pamoate 50 mg stopped; prescribed Vistaril 100 mg. (ECF No. 31-2 at 10; see also 31-11 at 27.)

10

On December 8, 2012, petitioner received an urgent mental health referral chrono noting

11

he missed over 3 doses of his medication hydroxyzine and needed psychotropic medication

12

review. (ECF No. 31-2 at 94.) On December 11, 2012, hydroxyzine pamoate 50 mg renewed.

13

(ECF No. 31-2 at 8, 9.) A mental health screening was completed by T. Pacheco, title unknown,

14

who concluded that there was an “indication that [petitioner] is suffering from a mental illness,”

15

and noted his adaptive functional assessment as “good.” (ECF No. 31-2 at 23-26.) Psychiatrist

16

O. Hicks, M.D., noted that petitioner feels restless in the night and obsessively ruminates about

17

his life. (ECF No. 31-11 at 24.) The mental status exam was normal, other than mood noted as

18

“a little anxious,” and insight/judgment were fair. (Id.) Hydroxyzine pamoate 100 mg was

19

continued for anxiety. (ECF No. 31-11 at 25.) Petitioner, in CCCMS, was placed in ad seg on

20

December 13, 2012; behavior noted as calm; stable on treatment. (ECF No. 31-11 at 22.)

21

On December 18, 2012, A. Maez, Ph.D., clinical psychologist, had confidential interview

22

with petitioner who complained of depression and anxiety; worried about his girlfriend who was

23

caught trying to introduce drugs into prison; racing thoughts; reports he hears voices, but no

24

history of auditory hallucinations; wants to move into EOP to have outdoor time. (ECF No. 31-

25

11 at 19.) Dr. Maez found history of depression likely exaggerated given current drug smuggling

26

situation causing reactive depressive transitory state. (ECF No. 31-11 at 19.)

27
28

On December 19, 2012, petitioner was housed in ad seg at the CCCMS level of care;
clinical summary noted he began mental health treatment during his first term at which time he
16

1

reported depressive symptoms and auditory hallucinations, e.g., voices. (ECF No. 31-2 at 172.)

2

No overt evidence of psychosis noted; petitioner taking Vistaril, and reported “he is stable

3

overall,” sleep and appetite adequate, no suicidal or homicidal ideation. (ECF No. 31-2 at 172.)

4

Petitioner was well groomed, orientation within normal limits, articulate; all boxes regarding

5

cognition/sensorium and thought processes marked within normal limits, insight and judgment

6

were fair. (ECF No. 31-2 at 173.) Diagnosis: depressive disorder, NOS (Axis I); GAF 62; mild

7

functional impairment. (ECF No. 31-2 at 174.) All of the boxes on the level of care

8

considerations form marked “no.” (ECF No. 31-2 at 175.) IDTT (interdisciplinary treatment

9

team) confirmed CCCMS placement. (ECF No. 31-11 at 17.) Hydroxyzine pamoate made

10

petitioner’s tongue feel “numb,” so Dr. Hicks changed the prescription to hydroxyzine hcl tablets.

11

(ECF No. 31-11 at 18.)

12

On December 27, 2012, Dr. Maez reported petitioner was asleep, euthymic, and did not

13

feel like a session; Dr. Maez assessed petitioner as depressed, lethargic, isolative, and low

14

motivation. (ECF No. 31-11 at 14.) On December 31, 2012, Dr. Maez noted that petitioner’s

15

recent cellmate triggered petitioner’s hypervigilance and paranoia. (ECF No. 31-11 at 11.) Dr.

16

Maez noted petitioner believes cellmate is planning and plotting to do him harm; petitioner is not

17

sleeping well, agitated; average intelligence; and assessed petitioner as paranoid, hypervigilant,

18

and agitated. (ECF No. 31-11 at 11.)

19

On January 8, 2013, petitioner was admitted to MHCB with diagnosis of MDD; principal

20

diagnosis was adjustment disorder with disturbance of conduct. (ECF No. 31-11 at 43-45; see

21

also No. 31-11 at 57-60.) Petitioner reported suicidal ideation after girlfriend broke up with him

22

after she was caught smuggling drugs into prison. (ECF No. 31-12 at 33.) On January 9, 2013,

23

GAF 25. (ECF No. 31-11 at 61.) On January 10, 2013, petitioner’s diagnosis was MDD,

24

recurrent, severe with psychotic features (by history); polysubstance dependence (in controlled

25

environment) (Axis I): GAF 45. (ECF No. 31-11 at 64.) All of the boxes on the level of care

26

considerations form marked “no.” (ECF No. 31-11 at 65.) On January 10, 2013, petitioner

27

refused to exit cell for IDTT, who assembled outside cell door and invited him to participate;

28

petitioner refused to speak. (ECF No. 31-11 at 68-69.) On January 11, 2013, petitioner told
17

1

psychiatrist P.W. Davidson, M.D., that Remeron helped a little. (ECF No. 31-11 at 70.) Dr.

2

Davidson charted that petitioner’s “voices” are not deemed to be hallucinations, and no psych

3

meds at present; prescribed Remeron 30 mg, and diagnosed depression. (ECF No. 31-11 at 70-

4

71.) On January 14, 2013, petitioner presented well groomed, with broad congruent affect,

5

irritable angry mood, logical and coherent thought process and hostile behavior. (ECF No. 31-12

6

at 3.) On January 15, 2013, C. Jordan, Psy.D. recorded that petitioner was calm upon approach to

7

cell, but became irritable/agitated with expansive affect during contact; marginally cooperative;

8

grooming and hygiene fair; alert; oriented x 4; speech clear and goal directed; thought process

9

clear, coherent and goal directed; thought control perseverative on stated complaints over

10

perceived unprofessional behavior of staff asserting that he may have safety concerns; no overt

11

evidence of perceptual disturbance or thought disorder; history of endorsing command auditory

12

hallucinations; reports paranoid/ persecutory beliefs that appear to be reality-based considering

13

nature of recent events that precipitated MCHB placement; judgment and insight marginal. (ECF

14

No. 31-11 at 4.) Assessed with MDD (by history); diminished acute risk in current treatment

15

setting; history of acting out behavior and history of poor coping skills. (ECF No. 31-12 at 4.)

16

On January 17, 2013, Oleg Liflyandsky, M.D., discharged petitioner from crisis bed;

17

diagnoses: adjustment disorder with disturbance of conduct; history of polysubstance dependence

18

(Axis I); antisocial personality traits versus disorder (Axis II); recent breakup with a girlfriend

19

(Axis IV); GAF 70. (ECF No. 31-11 at 47.) Dr. Liflyandsky opined that there was no strong

20

evidence that petitioner actually exhibits major depressive disorder. (ECF No. 31-11 at 48.)

21

On January 17, 2013, petitioner’s mental health chrono noted he had a qualifying mental

22

disorder, was treated at CCCMS level of care, with GAF of 60. (ECF Nos. 31-2 at 91; 31-12 at

23

12.) His IDTT also listed GAF of 60, and all of the boxes on the level of care considerations

24

form marked “no.” (ECF No. 31-12 at 13.)

25

On January 18, 2013, a mental health screening form was completed; petitioner reported

26

he had been hospitalized in a psychiatric hospital, hospitalized for drug treatment, and has

27

attempted suicide. (ECF No. 31-2 at 19.) The adaptive functional assessment was marked

28

“superior/very good.” (ECF No. 31-2 at 21.) The identity and title of the person completing this
18

1

form is unknown, but the initial screening concluded that there was an “indication that [petitioner]

2

is suffering from a mental illness.” (Id. at 22.)

3

On January 24, 2013, Dr. Maez had a confidential interview with petitioner who

4

complained at length and exhibited self-pity for his girlfriend having broken up with him; she was

5

caught smuggling drugs into prison resulting in her arrest and loss of good job and eventually her

6

friends persuaded her to break up with petitioner as a very bad influence. (ECF No. 31-11 at 2.)

7

Dr. Maez noted his sociopathy and narcissism result in his being angry at the girlfriend for her

8

abandoning him and for narcissistic injury -- no thought to the fact she was bringing drugs at his

9

request. (Id.) Dr. Maez found petitioner had extremely poor judgment and poor insight; he was

10

in MHCB from January 8 to 17 -- he had “melt down” when girlfriend’s letter arrived; reported

11

thoughts of suicide and would not make a no harm contract; Dr. Maez called crisis team to assess.

12

(ECF No. 31-11 at 2.) M. Seliktar, Ph.D., noted petitioner was released from crisis bed, put on

13

five day step down (January 18-22, 2013),8 discharged to CCCMS level of care, put on Remeron;

14

GAF 60. (ECF No. 31-11 at 3.) Petitioner denied he would kill himself that day; had no plan,

15

means or intent at that time. (Id.) Dr. Seliktar noted petitioner’s history of depression and several

16

suicide attempts in the community. (Id.)

17

On January 24, 2013, mental status exam during suicide risk evaluation noted petitioner

18

has poor impulse control; just returned from MHCB; mood labile; sleep okay; thought process

19

linear; no hallucinations; takes Remeron. (ECF No. 31-3 at 2-3; see also 31-11 at 1.) On

20

January 30, 2013, petitioner receiving CCCMS level of care, reported no auditory hallucinations,

21

and medications control his depression; Diagnosis: depressive disorder, NOS (Axis I). (ECF No.

22

31-2 at 167, 169.)

23

On February 6, 2013, petitioner was very agitated and complained he was not sleeping

24

and had continual negative commentary with auditory hallucinations; very restless and unable to

25

stop being negatively impacted by the voices. (ECF No. 31-10 at 46.) Dr. Maez assessed

26

petitioner as agitated and hallucinatory. (Id.)

27
28

8

During the five day step down, petitioner reported being all right, fine, good and ok. (ECF No.
13-11 at 4.)
19

1

On February 12, 2013, while housed in ad seg at CCCMS level of care, petitioner was

2

seen by Dr. Hicks at cell door. (ECF No. 31-10 at 44.) Petitioner said he was feeling “ok;”

3

eating and sleeping well; denied any depressive, manic, anxiety or psychotic symptoms; denied

4

suicidal ideation; no medication side effects; he appeared stable on current psychiatric

5

medication. (ECF No. 31-10 at 44.) Mental status exam: calm, cooperative, no acute distress; no

6

agitation; mood: “I’m ok;” affect mood congruent; thought process linear, goal oriented;

7

insight/judgment fair. (ECF No. 31-10 at 44.) Dr. Hicks assessed “history of Adjustment

8

Disorder with Depressed Mood, treated with Remeron (a 2nd tier AD that is the only

9

antidepressant that effectively treats his symptoms of depression).” (ECF No. 31-10 at 45.) Dr.

10

Hicks continued Remeron 30 mg “for depression and anxiety,” continue CCCMS care in ad seg.

11

(Id.) Also, Mirtazapine 30 mg renewed. (ECF No. 31-2 at 4.)

12

On February 13, 2013, Dr. Maez, noted that petitioner did not feel he needed to come out

13

for a session; petitioner reported that all is fine; presented with normal mood, oriented x 4, and

14

denied suicidal/homicidal ideation with no perceptual disturbances; no feelings of distress; stable.

15

(ECF No. 31-10 at 43.)

16

On February 20, 2013, petitioner was housed in ad seg and at CCCMS level of care.

17

(ECF No. 31-2 at 162.) Clinical summary notes petitioner began treatment for depression and

18

auditory hallucinations when first incarcerated, in treatment off and on thereafter; history of

19

severe childhood trauma, special education and behavior problems; severely abused by most of

20

his mother’s boyfriends; history of abandonments, and physical and emotional abuse, but no

21

reports of sexual abuse; history of violence and gang-related gang violence and multiple juvenile

22

detentions. (ECF No. 31-2 at 162.) Motivated and compliant in treatment. Recently housed in

23

MHCB after his girlfriend arrested trying to smuggle drugs in for petitioner to sell. Problems

24

noted: depression, sadness, amotivational, sleep disturbance and psychotic symptoms; prescribed

25

Remeron. (ECF No. 31-2 at 162.) Diagnoses: depressive disorder with psychotic symptoms

26

(Axis I); and antisocial personality disorder (“ASPD”) (Axis II); GAF 60, moderate functional

27

impairment. (ECF No. 31-2 at 164.) All of the boxes on the level of care considerations form

28

marked “no.” (ECF No. 31-2 at 165.) At February 20, 2013 IDTT, petitioner accepted/continued
20

1
2

in CCCMS level of care. (ECF No. 31-10 at 39.)
Later on February 20, 2013, Dr. Maez noted petitioner was in a very bad mood, with

3

multiple complaints: nobody is helping him, meds not working, just ready to pop; going crazy in

4

cell and sleeping on the floor; sarcastic, demanding, whiny and very confrontational. (ECF No.

5

31-10 at 40.) Dr. Maez charted that petitioner admitted to feeling depressed, very agitated, but

6

earlier in the day he was in better mood with no signs of distress; he was out on yard and

7

interacted comfortably with his peers. Now, petitioner was “extremely rude, and insulting.

8

Admits to transitory thoughts of death, but denies suicidality or risk to harming others.” (Id.)

9

Oriented x 4. Dr. Maez’ assessment of petitioner was “agitated, rude, demanding and unwilling

10
11

to review CBT tech[nique]s for thought stopping, etc.” (ECF No. 31-10 at 40.)
On February 26, 2013, petitioner refused to come out to therapy session; reported

12

continuing feelings of agitation and depression. Dr. Maez noted petitioner’s mood depressed,

13

with agitation and complaints that medication ineffectual; otherwise oriented x 4, no perceptual

14

disturbances; behaves with hostility demanding and agitation, but denied suicidality. (ECF No.

15

31-10 at 34.) Petitioner received mental health referral chrono stating “agitated, hostile,

16

demanding, history of [suicidal ideation]; crisis beds; multiple abandonments, early childhood

17

trauma.” (ECF No. 31-2 at 89.)

18

On March 5, 2013, due to staff referral, Dr. Hicks held interview at cell door with

19

petitioner, who admitted he had been hearing “voices that no one else can hear,” and was guarded

20

regarding what the voices were saying, but claimed these experiences caused him to feel anxiety,

21

and to withdraw because of the experiences. (ECF No. 31-10 at 31.) Petitioner claimed that

22

risperidone caused him to have EPS and Thorazine caused sedation and sluggishness, but

23

“reported no medication side effects.” (ECF No. 31-10 at 31.) Mental status exam showed no

24

acute distress; petitioner was cooperative; no agitation; mood anxious because hearing voices;

25

nervous appearing affect; thought process was linear, goal oriented; insight/judgment was fair.

26

(ECF No. 31-10 at 31.) Petitioner has history of schizoaffective disorder, depressed type, treated

27

with Remeron (a 2d tier AD that is the only psychiatric medication that effectively treats the

28

patient’s symptoms of depression/anxiety). (ECF No. 31-10 at 32.) Prescribed Abilify 10 mg for
21

1

psychosis, Remeron 30 mg for depression and anxiety, and Mirtazapine 30 mg renewed. (ECF

2

Nos. 31-1 at 22; 31-2 at 3; 31-10 at 32.)

3

On March 13, 2013, petitioner reported he was happy and having a good day; he does

4

have problems with impulse control and is paranoid, but wants to change his behavior. He wants

5

to get his diploma, but does not always understand what he reads. (ECF No. 31-10 at 28.)

6

Petitioner presented with no perceptual, thought process, and thought control disturbances, and no

7

memory deficit. (Id.) Petitioner encouraged to use coping and anger management skills, and to

8

set short term goal of high school diploma. (Id.)

9

On March 18, 2013, Beech, ACSW (certified social worker), met with petitioner in a

10

confidential setting; he reported everything was okay with him; non-compliant with medication

11

because it makes him sick; side effects from Remeron causes him to have headaches, gives him

12

the shakes and diarrhea. (ECF No. 31-10 at 23.) Petitioner was alert and oriented x 4;

13

appropriately groomed; clear speech and coherent flow; easily engaged; no memory deficit;

14

presented calm motor activity, average fund of knowledge, euthymic, cooperative and respectful;

15

no perceptual, thought process or thought content disturbances; did not appear to be suicidal or

16

homicidal at the time. (ECF No. 31-10 at 23.) Petitioner presented as stable, but was non-

17

compliant in medication treatment; compliant in current treatment plan; continued weekly

18

CCCMS contact. (Id.)

19

On March 28, 2013, ACSW Beech met with petitioner in confidential setting; he reported

20

everything okay with him; he was angry because people always let him down; no one ever keeps

21

their word to him; reported noncompliance with medication because it makes him sick; side

22

effects from Remeron causes him to have headaches. (ECF No. 31-10 at 20.) Petitioner was alert

23

and oriented x 4; appropriately groomed; clear speech and coherent flow; easily engaged; no

24

memory deficit; presented agitated, with average fund of knowledge; angry but cooperative and

25

respectful; no perceptual, thought process or thought content disturbances; did not appear to be

26

suicidal or homicidal at the time. (ECF No. 31-10 at 20.) Petitioner presented as stable, but was

27

non-compliant in medication treatment and current treatment plan; continued weekly CCCMS

28

contact. (Id.)
22

1

On April 3, 9 and 15, 2013, ACSW Beech met at cell front with petitioner who refused to

2

speak with clinician because he has not been referred to IDTT for EOP. (ECF No. 31-10 at 13,

3

16, 17.) Petitioner was alert and oriented x 4; appropriately groomed; no memory deficit;

4

presented agitated, angry, belligerent and disrespectful; no perceptual, thought process or thought

5

content disturbances; did not appear to be suicidal or homicidal at the time. (ECF No. 31-10 at

6

13, 16, 17.) Petitioner presented as stable, but was non-compliant in medication treatment and

7

current treatment plan. (Id.) On April 22, 2013, petitioner continued at CCCMS level of care.

8

(ECF No. 31-10 at 10.)

9

On April 28, 2013, S. Blickhan, Psy.D., met with petitioner in confidential setting;

10

petitioner reported in stable mood, “frustrated.” (ECF No. 31-10 at 8.) He was removed from

11

yard because he was on heat medication list and it reached 90 degrees; he is taking Abilify and

12

Remeron. (ECF No. 31-10 at 8.) Petitioner likes yard and exercises: “I like the fresh air, it keeps

13

my mind right” from being in his cell, and wants to be taken off the medication. (Id.) He denied

14

psychosis and is compliant with medication, with good efficacy and no side effects. (Id.)

15

Dr. Blickhan found petitioner to be alert, oriented x 4, linear thought process with no evidence of

16

hallucinations; coherent with no evidence of delusions; presents with average intellectual

17

functioning; speech logical and normal in rate and tone; adequate concentration with no evidence

18

of memory impairment; calm motor activity and full range of affect; well groomed; no evidence

19

of distress; diagnosis: MDD, recurrent, severe with psychotic features “per MHTS;”9 no evidence

20

of a mood or thought disorder; presented as stable. (ECF No. 31-10 at 8.)

21

On May 2, 2013, S. Blickhan, Psy.D. met with petitioner in confidential setting; petitioner

22

continued to feel frustrated about being on the heat medications list. He spoke with the

23

psychiatrist who did not discontinue the medication; petitioner taking Abilify and Remeron.

24

(ECF No. 31-10 at 5.) Petitioner was alert, oriented x 4, linear thought process with no evidence

25

of hallucinations; coherent with no evidence of delusions; presents with average intellectual

26

functioning; speech logical and normal in rate and tone; adequate concentration with no evidence

27
28

9

“MHTS” is a CDCR acronym meaning “Mental Health Tracking System.” Coleman v. Brown,
No. 2:90-cv-0250 LKK DAD P (E.D. Cal. June 10, 2014) (ECF No. 5164).
23

1

of memory impairment; calm motor activity and full range of affect; well groomed; no evidence

2

of distress; diagnosis: MDD, recurrent, severe with psychotic features per MHTS; no evidence of

3

a mood or thought disorder; presented as stable. (ECF No. 31-10 at 5.)

4

On May 7, 2013, ACSW Beech met at cell front with petitioner, who refused to speak

5

with clinician until she placed him into EOP. (ECF No. 31-10 at 4.) Petitioner was alert and

6

oriented x 4; appropriately groomed; no memory deficit; presented agitated, angry, belligerent

7

and disrespectful; no perceptual, thought process or thought content disturbances; did not appear

8

to be suicidal or homicidal at the time. (ECF No. 31-10 at 4.) Petitioner presented as stable, but

9

was non-compliant in medication treatment and current treatment plan. (Id.)

10

On May 8, 2013 IDTT, clinical summary noted that petitioner had reported history of

11

childhood abuse and abandonment, special education, behavior problems, gang involvement and

12

violence; anger issues, depression, and anxiety. (ECF No. 31-2 at 157.) Petitioner presented

13

alert, oriented x 4, appropriately groomed, without memory deficit, normal eye contact, agitated,

14

angry, belligerent and disrespectful; without perceptual, thought process or thought content

15

disturbances. Petitioner’s problems listed as depression (prescribed Remeron to decrease

16

symptoms), and psychosis (prescribed Abilify to stabilize symptoms). (ECF No. 31-2 at 157.)

17

Diagnoses: depressive disorder with psychotic symptoms (Axis I); and ASPD (Axis II); GAF 60,

18

moderate functional impairment. (ECF No. 31-2 at 159.) All of the boxes on the level of care

19

considerations form marked “no.” (ECF No. 31-2 at 161.)

20
21
22

On May 10, 2013, petitioner complained that his medications were bothering him. (ECF
No. 31-1 at 88.)
On May 16, 2013, a psychologist noted petitioner’s grooming was appropriate, his speech

23

was intelligible, and his comprehension process was adequate, and he was participating at the

24

CCCMS level of care. (ECF No. 31-2 at 87.)

25

On May 16, 2013, S. Blickhan, Psy.D. met with petitioner in confidential setting;

26

petitioner felt stressed about being on the heat meds list; he was told to refuse it for 2 weeks with

27

eventual appointment with psychiatry; he was taking Abilify and Remeron. (ECF no. 31-9 at 77.)

28

Petitioner was alert, oriented x 4, linear thought process with no evidence of hallucinations;
24

1

coherent with no evidence of delusions; presents with average intellectual functioning; speech

2

logical and normal in rate and tone; adequate concentration with no evidence of memory

3

impairment; calm motor activity and full range of affect; well groomed; no evidence of distress;

4

diagnosis: MDD, recurrent, severe with psychotic features per MHTS; no evidence of a mood or

5

thought disorder; presented as stable. (ECF No. 31-9 at 77.)

6

On May 23, 2013, while housed in general population at CCCMS level of care, petitioner

7

was seen by a psychiatrist. (ECF No. 31-9 at 74.) Petitioner stopped taking Abilify after

8

deciding he “didn’t need it anymore because he doesn’t hear voices.” (ECF Nos. 31-2 at 104; 31-

9

9 at 74.) Mental status exam: alert; oriented x 4; cooperative; speech spontaneous and normal;

10

mood calm, affect full-ranged, mood congruent; thought process goal directed, linear, logical;

11

thought content: no delusions or obsessions; no hallucinations; no suicidal or homicidal ideation;

12

cognition intact; insight fair, judgment good; TABE 6.6. (ECF No. 31-9 at 74.) Diagnoses:

13

depressive disorder NOS (not otherwise specified), PSD (Axis I); ASPD (Axis II); GAF 65;

14

continue current dose of Remeron. (ECF No. 31-9 at 68.) Aripiprazole 10 mg (Abilify) stopped;

15

Mirtazapine 30 mg renewed. (ECF No. 31-1 at 95, 96.)

16

On June 6, 2013, while housed in general population at CCCMS level of care, petitioner

17

was seen by a psychiatrist; mental status exam: alert; oriented x 4; adequate grooming;

18

cooperative; speech spontaneous and normal; mood calm, affect full-ranged, mood congruent;

19

thought process goal directed, linear, logical; thought content no delusions or obsessions; no

20

hallucinations; no suicidal or homicidal ideation; cognition intact; insight fair, judgment good;

21

TABE 6.6. (ECF No. 31-9 at 71.) Diagnoses: depressive disorder NOS, PSD (Axis I); ASPD

22

(Axis II); GAF 65; medications unchanged. (ECF No. 31-9 at 72.)

23

At the June 19, 2013 IDTT, a clinical summary noted petitioner’s reported history of

24

childhood abuse and abandonment, special education, behavior problems, and gang involvement;

25

anger issues, depression, and anxiety. (ECF No. 31-2 at 152.) Problem listed as depression, for

26

which petitioner prescribed Remeron 30 mg. Petitioner refused to attend IDTT, so there was no

27

mental status exam. (ECF No. 31-2 at 153.) Diagnoses: depression, NOS and polysubstance

28

dependence (Axis I); and ASPD (Axis II); GAF 65. (ECF No. 31-2 at 154.) Petitioner on
25

1
2

CCCMS level of care; TABE 6.6. (ECF No. 31-9 at 70.)
On August 12, 2013, Tony Rodriguez, LCSW (licensed clinical social worker), saw

3

petitioner, who said, “Man, I’m halfway alright. I’ve been stressing out over boredom.” (ECF

4

No. 31-9 at 69.) Petitioner’s girlfriend was banned from visits following her attempt to smuggle

5

in drugs in December 2012; petitioner hasn’t heard from her since. (Id.) They discussed

6

difficulty coping with incarceration and inmate politics; petitioner attempts to avoid such politics.

7

No thought or mood issues because medicated; not in significant distress. (Id.) Rodriguez

8

assessed MDD, recurrent; severe with psychotic features. (ECF No. 31-9 at 69.)

9
10

On August 15, 2013, November 8, 2013, January 16, 2014, April 1, 2014, and April 24,
2014, Mirtazapine 30 mg was renewed. (ECF No. 31-1 at 82, 83, 85, 86, 92.)

11

On August 15, 2013, while housed in general population at CCCMS level of care,

12

petitioner was seen by a psychiatrist; mental status exam: alert; oriented x 4; adequate grooming;

13

cooperative; speech spontaneous; mood calm, affect full-ranged, mood congruent; thought

14

process goal directed, linear, logical; thought content no delusions or obsessions; no

15

hallucinations; no suicidal or homicidal ideation; cognition intact; insight fair, judgment good;

16

TABE 6.6. (ECF No. 31-9 at 67.) Petitioner diagnosed depressive disorder NOS, PSD (Axis I);

17

ASPD (Axis II); GAF 65; medications unchanged. (ECF No. 31-9 at 68.)

18

On October 7, 2013, A. Johnson, ACSW, met with petitioner cell side due to modified

19

program. (ECF No. 31-9 at 66.) Petitioner was frustrated due to lack of yard; Johnson found

20

petitioner was oriented x 3, alert, mood stable, but frustrated, grooming normal, no hallucinations,

21

speech normal; appeared stable; GAF 55. (ECF No. 31-9 at 66.)

22

On November 8, 2013, while housed in general population at CCCMS level of care,

23

petitioner was seen by a psychiatrist; mental status exam: alert; oriented x 4; adequate grooming;

24

cooperative; speech spontaneous and normal; mood calm, affect full-ranged, mood congruent;

25

thought process goal directed, linear, logical; thought content no delusions or obsessions; no

26

hallucinations; no suicidal or homicidal ideation; cognition intact; insight and judgment good;

27

TABE 6.6. (ECF No. 31-9 at 64.) Petitioner diagnosed depressive disorder NOS, PSD (Axis I);

28

ASPD (Axis II); GAF 65; medications unchanged. (ECF No. 31-9 at 62.)
26

1

On December 5, 2013, petitioner was assessed for suicide risk, GAF 55; risk estimated as

2

low. (ECF No. 31-2 at 219-21.) A. Johnson, ACSW, met with petitioner on December 5, 2013,

3

and found petitioner oriented x 3, alert, mood stable, calm, grooming normal, no hallucinations,

4

speech logical in rate and tone; patient appeared stable; GAF 55. (ECF No. 31-9 at 63.)

5

On January 16, 2014, while at CCCMS level of care, petitioner was seen by a psychiatrist;

6

mental status exam: alert; oriented x 4; adequate grooming; cooperative; speech spontaneous;

7

mood calm, affect full-ranged, mood congruent; thought process goal directed, linear, logical;

8

thought content no delusions or obsessions; no hallucinations; no suicidal or homicidal ideation;

9

cognition intact; insight and judgment good. (ECF No. 31-9 at 61.) Diagnoses: depressive

10

disorder NOS, PSD (Axis I); ASPD (Axis II); GAF 65; meds unchanged. (ECF No. 31-9 at 62.)

11

On February 10, 2014, petitioner reported doing “ok;” A. Johnson, ACSW, found

12

petitioner oriented x 3, alert, mood stable, calm, grooming normal, no hallucinations; Diagnosis:

13

MDD, recurrent; GAF 55. (ECF No. 31-9 at 60.)

14

On April 1, 2014, while at CCCMS level of care, petitioner was seen by a psychiatrist;

15

mental status exam: alert; oriented x 4; adequate grooming; cooperative; speech spontaneous and

16

normal; mood calm, affect full-ranged, mood congruent; thought process goal directed, linear,

17

logical; thought content no delusions or obsessions; no hallucinations; no suicidal or homicidal

18

ideation; cognition intact; insight and judgment good. (ECF No. 31-9 at 58.) Diagnoses:

19

depressive disorder NOS, PSD (Axis I); ASPD (Axis II); GAF 65; medications unchanged. (ECF

20

No. 31-9 at 59.) On April 1, 2014, petitioner was prescribed Remeron, 30 mg. (ECF No. 31-1 at

21

20.)

22

On April 10, 2014, petitioner was housed in ad seg for four counts of refusing to provide a

23

urine sample; prescribed Remeron 15 mg and Strattera 40 mg; appeared stable on his meds and

24

compliant with treatment; oriented x 4, thoughts linear, speech articulate, mood stable, and affect

25

appropriate. (ECF No. 31-2 at 211.) Petitioner denied hallucinations or suicidal/homicidal

26

ideation. (Id.)

27
28

On April 10, 2014, petitioner, diagnosed with MDD, severe, psychotic features (Axis I);
GAF 55, was retained in CCCMS and had been stable at CCCMS level of care. (ECF No. 31-2 at
27

1

212, 217.) Petitioner taking Mirtazapine 30 mg. (ECF No. 31-2 at 214.) All of the boxes on the

2

mental status exam form were marked “within normal limits” and “none,” except that his affect

3

was mildly restricted, and his mood calm. (ECF Nos. 31-2 at 215; 31-9 at 57.)

4

On April 24, 2014, while housed in general population at CCCMS level of care, petitioner

5

seen by psychiatrist; mental status exam: alert; oriented x 4; adequate grooming; cooperative;

6

speech spontaneous and normal; mood calm, affect full-ranged, mood congruent; thought process

7

goal directed, linear, logical; thought content no delusions or obsessions; no hallucinations; no

8

suicidal or homicidal ideation; cognition intact; insight and judgment good. (ECF No. 31-9 at

9

55.) On April 25, 2014, petitioner was diagnosed with depressive disorder NOS, PSD (Axis I);

10
11

ASPD (Axis II); GAF 65; medications unchanged. (ECF No. 31-9 at 56.)
Petitioner’s May 29, 2014 mental health treatment plan noted history of mental health and

12

special education services, gang involvement and violence, and treatment for anger issues,

13

depression and anxiety. (ECF No. 31-2 at 147.) Petitioner’s problem was depressed mood; he

14

received Mirtazapine 30 mg at bed time for decreasing mood symptoms. (ECF No. 31-2 at 147.)

15

All of the mental status exam boxes were marked “within normal limits,” including cognition,

16

thought processes, and insight and judgment; there were no hallucinations, delusions, obsessions

17

or magical thinking; TABE 7.6. (ECF No. 31-2 at 148.) Diagnosis was mood disorder (Axis I);

18

Axis II deferred; incarceration, ad seg housing (Axis IV) and GAF 65. (ECF No. 31-2 at 149.)

19

All of the boxes on the level of care considerations form marked “no.” (ECF No. 31-2 at 150.)

20

On June 13, 2014, in confidential setting, Dr. Valdes met with petitioner, who reported the

21

Remeron gives him appetite. (ECF No. 31-9 at 52.) Dr. Valdes charted petitioner was frustrated

22

that he doesn’t have opportunity to work; reports long-lived history of difficulty concentrating.

23

(ECF No. 31-9 at 52.) Diagnoses: ADD; Schizoaffective Disorder, depressive type; start

24

Strattera 40 mg; reduce Remeron to 15 mg. (ECF No. 31-9 at 48.) On June 16, 2014,

25

Mirtazapine 30 mg stopped; prescribed Remeron 15 mg and Strattera 40 mg. (ECF No. 31-1 at

26

81.) On June 25, 2014, progress notes petitioner working on his GED. (ECF No. 31-9 at 51.)

27

On June 26, 2014, a psychiatrist performed mental status exam: alert; oriented x 4;

28

adequate grooming; cooperative; speech spontaneous and normal; mood calm, affect full-ranged,
28

1

appropriate, mood congruent; thought process goal directed, linear, logical; thought content no

2

delusions or obsessions; no hallucinations; no suicidal or homicidal ideation; cognition intact;

3

insight and judgment good. (ECF No. 31-9 at 49.) Diagnoses: Mood disorder NOS; PSD (Axis

4

I); ASPD (Axis II): GAF 65. (ECF No. 31-9 at 50.) Medications unchanged. (Id.)

5
6

On June 26, August 7, and September 17, 2014, Strattera 40 mg and Mirtazapine 15 mg
renewed. (ECF No. 31-1 at 77, 78, 80.)

7

On July 11, 2014, Dr. Valdes met with petitioner in confidential setting; he reported “the

8

Strattera isn’t doing anything,” no side effects, either. (ECF No. 31-9 at 47.) Dr. Valdes charted

9

petitioner just lost his sister to ovarian cancer; he felt defeated and overwhelmed by prison term;

10

wants to wait another month before another increase in Strattera tried. (ECF No. 31-9 at 47.)

11

Diagnoses: ADD; depressive disorder; continue Strattera and Remeron. (ECF No. 31-9 at 48.)

12

Petitioner encouraged to work on his case; Dr. Valdes charted: “the sentence is exorbitant.”

13

(ECF No. 31-9 at 48.)
On July 30, 2014, M. Pulling, Psy.D. met with petitioner who stated, “It has nothing to do

14
15

with me being in CCCMS. I’ve read it twice and I don’t get it.” (ECF No. 31-9 at 46.) Dr.

16

Pulling found petitioner oriented x 4, thought processes linear and goal directed; thought content

17

logical, speech articulate, mood stable; denied hallucinations; evidence of a thought disorder;

18

Diagnoses: Mood disorder NOS (provisional) (Axis I), and ASPD (Axis II); GAF 55. (ECF No.

19

31-9 at 46.)
On August 7, 2014, Dr. Valdes met cell side with petitioner, who reported “I want to stay

20
21

with my meds; I didn’t need to come out.” (ECF No. 31-9 at 44.) Dr. Valdes charted petitioner

22

came promptly to door; mood slightly irritable; clean appearance; diagnoses: depressive disorder,

23

NOS; ADD; continue Strattera and Remeron. (ECF No. 31-9 at 44-45.)
On August 20, 2014, Dr. Valdes met cell side with petitioner, who reported “I’m okay.”

24
25

(ECF No. 31-9 at 42.) Dr. Valdes charted petitioner came to door promptly when called; no signs

26

of distress; he had been sleeping; diagnoses: depressive disorder; ADD; continue meds. (ECF

27

No. 31-9 at 42-43.) On August 28, 2014, petitioner refused psych assessment. (ECF No. 31-9 at

28

40-41.)
29

1

A September 10, 2014 progress note reflects petitioner addressed issue of parole; he has a

2

long time to go but is willing to start preparing for parole; he is trying to complete GED. (ECF

3

No. 31-9 at 39.) On September 11, 2014, while housed in general population at CCCMS level of

4

care, petitioner was seen by a psychiatrist; mental status exam: alert; oriented x 4; adequate

5

grooming; cooperative; speech spontaneous and normal; mood calm, affect full-ranged, mood

6

congruent; thought process goal directed, linear, logical; thought content no delusions or

7

obsessions; no hallucinations; no suicidal or homicidal ideation; cognition intact. (ECF No. 31-9

8

at 37.) On September 12, 2014, petitioner diagnosed mood disorder NOS, rule out PSD (Axis I);

9

rule out ASPD (Axis II); GAF 70; medications unchanged. (ECF No. 31-9 at 38.)
On September 17, 2014, Dr. Valdes met cell side with petitioner, who reported “I’m

10
11

having some problems right now with some people in the streets; don’t want to get into it.” (ECF

12

No. 31-9 at 35.) Dr. Valdes charted: “discussed importance of sharing emotional burden, but

13

petitioner was adamant; appropriate; said he would reach out if necessary.” (ECF No. 31-9 at

14

35.) Diagnoses: Mood Disorder, NOS; ADD; continue Strattera and Remeron. (ECF No. 31-9 at

15

36.)

16

On October 1, 2014, Dr. Valdes met cell side with petitioner, who reported “I’m feeling

17

good; everything is okay.” (ECF No. 31-9 at 33.) Dr. Valdes charted petitioner was animated;

18

appropriate; good spirits; diagnoses: mood disorder, NOS; continue Strattera and Remeron.

19

(ECF No. 31-9 at 33-34.)

20

On October 9, 2014, petitioner, housed in general population at CCCMS level of care, was

21

seen cell side by A. Dusovich, M.D. (ECF No. 31-9 at 31-32.) Mental status exam: alert;

22

oriented x 4; adequate grooming; cooperative; speech spontaneous and normal; mood calm, affect

23

full-ranged, appropriate, mood congruent; thought process goal directed, linear, logical; thought

24

content no delusions or obsessions; no hallucinations; no suicidal or homicidal ideation; cognition

25

intact. (ECF No. 31-9 at 31.) Diagnoses: mood disorder NOS; noncompliance with meds;

26

history of SSA (Axis I); rule out ASPD (Axis II): GAF 65. (ECF No. 31-9 at 32.) Medications

27

unchanged. (Id.)

28

On October 15, 2014, Dr. Valdes met cell side with petitioner, who reported “I’m doing
30

1

fine.” (ECF No. 31-9 at 29.) Dr. Valdes charted petitioner came to door promptly; in good

2

spirits; “Don’t need to see you, done,” appropriate; diagnoses: Mood Disorder, NOS; continue

3

medications. (ECF No. 31-9 at 29-30.)

4

On October 23, 2014, petitioner, housed in ad seg at CCCMS level of care, was seen for

5

medication noncompliance; he insisted on being seen cell side where he claimed he did not take

6

Remeron for 3 days because he was sick (10/16-18/2014), but wishes to continue taking

7

Remeron, and intends to redouble efforts to take Remeron regularly. (ECF No. 31-9 at 27.)

8

Generally, petitioner eating and sleeping well; he denied any depressive, manic, anxiety, or

9

psychotic symptoms, suicidal or homicidal ideation, or medication side effects. (ECF No. 31-9 at

10

27.) Petitioner’s thought process described as linear, goal oriented; insight/judgment was fair.

11

(ECF No. 31-9 at 27.) Dr. Hicks assessed “history of Mood Disorder NOS, treated with Strattera

12

and Remeron (a 2nd tier AD that is the only antidepressant that effective treats the patient’s

13

symptoms of depression).” (ECF No. 31-9 at 28.) Dr. Hicks continued Strattera 40 mg and

14

Remeron 15 mg “for attention/concentration/antidepressant augmentation and depression

15

respectively,” and continue CCCMS level of care. (ECF No. 31-9 at 28.) On October 23, 2014,

16

Strattera 40 mg and Mirtazapine 15 mg prescriptions continued “until January 23, 2015.” (ECF

17

No. 31-1 at 76.)

18

On November 7, 2014, Dr. Valdes met cell side with petitioner, who reported “The meds

19

are good; I’m fine.” (ECF No. 31-9 at 25.) Dr. Valdes charted petitioner in good spirits;

20

appropriate; clean appearance; diagnoses: Depressive Disorder; ADD; continue Strattera and

21

Remeron. (ECF No. 31-9 at 25-26.)

22

On November 21, 2014, Dr. Valdes met cell side with petitioner, who reported “I’m

23

good.” (ECF No. 31-9 at 23.) Dr. Valdes charted petitioner in good spirits; appropriate; wants to

24

remain on meds; diagnoses: depressive disorder; ADD; continue meds. (ECF No. 31-9 at 23-24.)

25

On December 2, 2014, A. Johnson, ACSW (associate clinical social worker), met with

26

petitioner in the housing unit, where petitioner said he was doing ok, but sometimes has bad days;

27

he described a bad day: “he is non-operative, isolates, doesn’t speak with his cellie, doesn’t use

28

the head, or leave the cell.” (ECF No. 31-9 at 22.) Johnson found petitioner to be oriented x 4,
31

1

mood was very mildly dysphoric, denied hallucinations; appeared stable at time of this visit;

2

Diagnoses: MDD, recurrent (Axis I); GAF 55. (ECF No. 31-9 at 22-23.)
On December 12, 2014, Dr. Valdes met cell side with petitioner, who reported “I’m doing

3
4

fine,” came to cell door when called; “C/fair.” (ECF No. 31-9 at 20.) Dr. Valdes’ diagnoses:

5

Depression Disorder; ADD; continue Strattera/Remeron. (ECF No. 31-9 at 20-21.)

6
7

On December 12, 2014, January 29, 2015, and February 26, 2015, Strattera 40 mg and
Mirtazapine 15 mg renewed. (ECF No. 31-1 at 73, 74, 75.)

8

On May 24, 2013; June 8, 11, 15, 16, 2014; July 6, 9, 2014; August 5, 17, 2014;

9

September 6, 13, 14, 27, 2014; October 5, 9, 11, 18, 29, 2014; November 1, 8, 14, 20, 2014;

10

December 6,10 2014; January 21, 24, 30, 2015; and February 20, 2015, petitioner received a

11

chrono for refusing, or was a no show, for administered medication. (ECF No. 31-1 at 56, 57, 58,

12

59, 61, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72-73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86.)

13

On January 23, 2015, Dr. Valdes met cell side with petitioner, who reported “I’m alright;

14

want to stay on my meds.” (ECF No. 31-9 at 17.) Dr. Valdes noted no sign of distress; continue

15

meds; Diagnoses: depression disorder; ADD. (ECF No. 31-9 at 17-18.)

16

On February 5, 2015, Dr. Valdes met cell side with petitioner, who reported “no

17

problems; good appetite.” (ECF No. 31-9 at 15.) Dr. Valdes noted no sign of distress; continue

18

Strattera and Remeron; Diagnoses: depression disorder; ADD. (ECF No. 31-9 at 15-16.)

19

On February 20, 2015, Dr. Valdes met cell side with petitioner regarding his decision on

20

noncompliance; petitioner wanted to remain on medications; Dr. Valdes charted “no signs of

21

acute distress.” (ECF No. 31-9 at 12.) Diagnoses: depression disorder; ADD; continue Strattera

22

and Remeron. (ECF No. 31-9 at 12-13.)
On February 24, 2015, petitioner “stated that he was doing fine;” “he is on medication and

23
24

it helps him;” “copes with his problems by going to the yard and trying to stay busy;” “has no

25

major concerns at this time.” (ECF No. 31-9 at 14.)

26

10

27
28

Another chrono was dated 12/5/2014 by LVN E. Grant, but the form claims petitioner refused
or was a no show on 12/3/14, 12/14/14, and 12/15/14. (ECF No. 31-2 at 62.) A psychiatrist
signed and dated the chrono 12/12/14. (Id.) Because these dates cannot be reconciled, the court
does not consider this chrono.
32

1
2
3

In the March 16, 2015 ad seg pre-placement chrono, petitioner’s TABE is listed as 6.6.
(ECF No. 31-2 at 55.)
On March 23, 2015, C. Kyriacou, Psy.D. found petitioner oriented x 4, thoughts linear,

4

speech articulate, mood stable; denied hallucinations; Diagnoses: Mood disorder NOS

5

(provisional) (Axis I), and ASPD (Axis II); GAF 55. (ECF No. 31-9 at 9-10.)

6

On March 26, 2015, Staff Psychologist Cao, Psy. D., noted petitioner’s grooming was

7

appropriate, speech intelligible, and comprehension process was adequate, and was participating

8

at the CCCMS level of care. (ECF No. 31-2 at 54.) On March 30, 2015, petitioner reported he

9

stopped taking Remeron because it makes him sleep all the time. (ECF No. 31-2 at 53.) He was

10

prescribed Mirtazapine, 15 mg. (ECF No. 31-1 at 72.)

11

On April 1, 2015, medical health placement chrono reflects CCCMS level of care, GAF

12

55, and psychotropic medications prescribed. (ECF No. 31-2 at 52, 144.) C. Kyriacou, Psy.D.

13

found petitioner well-groomed, positive/cooperative, orientation within normal limits; affect was

14

elevated, mood anxious, does not sleep. (ECF No. 31-2 at 143.) Dr. Kyriacou marked all of the

15

cognition/sensorium, and thought processes boxes as within normal limits, but petitioner’s insight

16

and judgment were poor. (Id.) Diagnoses: major depression, recurrent, mild; attention-deficit

17

hyperactivity disorder, predominantly inattentive; polysubstance dependence in full remission in a

18

controlled environment (Axis I); and ASPD (provisional) (Axis II). (ECF No. 31-2 at 144.)

19

IDTT marked “no” on all boxes of Level of care considerations, reflecting petitioner was able to

20

adequately function at CCCMS level of care or that he did not demonstrate chronic psychiatric

21

symptoms that have not responded to at least six months of treatment. (ECF No. 31-2 at 145.)

22

On April 1 and 8, 2015, C. Kyriacou, Psy.D. found petitioner was oriented x 4, thoughts

23

linear, speech articulate, mood stable; denied hallucinations; Diagnoses: MDD, recurrent, mild;

24

ADHD, predominantly inattentive; polysubstance dependence in full remission in controlled

25

environment (Axis I), and ASPD (Axis II); GAF 55; CCCMS. (ECF No. 31-9 at 3, 6.)

26

On April 16, 2015, Staff Psychiatrist V. Ahuja, M.D., noted petitioner’s complaints of

27

anxiety and difficulty sleeping; displaying poor attention and hyperactivity. (ECF No. 31-8 at

28

66.) Dr. Ahuja found petitioner’s mood anxious; thought process distractable; although no
33

1

delusions were detected, petitioner reported seeing shadows; as to cognition, “poor attention and

2

concentration.” (Id.) Diagnoses: MDD, recurrent, mild; ADHD, Polysubstance Dependence

3

(Axis I); ASPD (Axis II); GAF 50. (Id.) Dr. Ahuja noted petitioner has not cursed since he was

4

redirected last visit, and complimented petitioner on effective change of behavior. (Id.) On April

5

16, 2015, Strattera increased from 40 to 60 mg, and prescribed Vistaril 50 mg for anxiety. (ECF

6

No. 31-1 at 69; 31-8 at 67.)

7

On April 17 and 23, 2015, C. Kyriacou, Psy.D. found petitioner oriented x 4, thoughts

8

distracted/racing, speech pressured but redirectable, mood anxious, affect somewhat elevated;

9

reported visual and auditory hallucinations, but did not appear to respond to internal stimuli;

10

Diagnoses: MDD, recurrent, mild; ADD, predominantly inattentive; polysubstance dependence

11

in full remission in controlled environment (Axis I), and ASPD (Axis II); GAF 50. (ECF No. 31-

12

8 at 63, 65.)

13

On April 30, 2015, C. Kyriacou, Psy.D. found petitioner oriented x 4, thoughts

14

distracted/racing but redirectable, speech pressured but redirectable, mood anxious, affect

15

somewhat elevated; reported visual and auditory hallucinations, but did not appear to respond to

16

internal stimuli; Diagnoses: MDD, recurrent, mild; ADD, predominantly inattentive;

17

polysubstance dependence in full remission in controlled environment (Axis I), and ASPD (Axis

18

II); GAF 55. (ECF No. 31-8 at 61.)

19

On May 4, 2015, petitioner reported he had not had meds for three weeks and felt anxious

20

and had mood swings. (ECF No. 31-2 at 50.) On May 4 and 12, 2015, C. Kyriacou, Psy.D.

21

found petitioner oriented x 4, thoughts distracted but redirectable, speech pressured, mood

22

anxious, affect elevated; reported visual and auditory hallucinations, but did not appear to respond

23

to internal stimuli; Diagnoses: MDD, recurrent, mild; ADD, predominantly inattentive;

24

polysubstance dependence in full remission in controlled environment (Axis I), and ASPD (Axis

25

II); GAF 55. (ECF No. 31-8 at 57, 59.) May 22, 2015, continue at CCCMS level of care. (ECF

26

No. 31-8 at 55.)

27

On May 28, 2015; June 4, 12, and 18, 2015, C. Kyriacou, Psy.D. found petitioner to be

28

oriented x 4, thoughts linear, speech articulate, mood stable; denied hallucinations; diagnoses:
34

1

MDD, recurrent, mild; ADD, predominantly inattentive; polysubstance dependence in full

2

remission in controlled environment (Axis I), and ASPD (Axis II); GAF 55; CCCMS. (ECF No.

3

31-8 at 46, 49, 51, 53.)

4

On June 17, 2015, petitioner’s mental health chrono reflects qualifying mental disorder,

5

treated at CCCMS level of care, GAF 60, and psychotropic medication Vistaril 50 mg and

6

Strattera 60 mg prescribed. (ECF No. 31-2 at 49, 137, 139.) TABE 6.6. Problems identified as

7

depression, evidenced by low motivation, sad mood, anhedonia, disrupted sleep patterns; and

8

attention and focus deficits, evidenced by impulsivity, difficulty completing tasks, and consistent

9

redirection. (ECF No. 31-2 at 137.) He was compliant with all aspects of treatment, and

10

appeared stable on his medications. (Id.) Diagnoses: major depression, recurrent, mild; ADHD,

11

predominantly inattentive; polysubstance dependence in full remission in a controlled

12

environment; (Axis I); and ASPD (provisional) (Axis II). (ECF No. 31-2 at 139.)

13

On June 23, 2015, C. Kyriacou, Psy.D. found petitioner oriented x 4, thoughts linear,

14

speech articulate, mood stable; denied hallucinations; diagnoses: MDD, recurrent, mild; ADD,

15

predominantly inattentive; polysubstance dependence in full remission in controlled environment

16

(Axis I), and ASPD (Axis II); GAF 60. (ECF No. 31-8 at 44.)

17

On July 16, and 23, 2015, C. Kyriacou, Psy.D. found petitioner, housed in general

18

population, oriented x 4, thoughts linear, speech articulate, mood stable; diagnoses: MDD,

19

recurrent, mild; ADD, predominantly inattentive; polysubstance dependence in full remission in

20

controlled environment (Axis I), and ASPD (Axis II); GAF 65. (ECF No. 31-8 at 33, 36.)

21

On July 24, 2015, petitioner was housed in a MHCB crisis bed, GAF 30, due to his self-

22

inflicted superficial cuts to both wrists and neck. (ECF No. 31-2 at 45, 46; 31-12 at 93 (GAF

23

45).) Petitioner’s initial IDTT at admission suggested staff “consider the presence of secondary

24

gain given his current ad seg term and multiple pending 115s.” (ECF No. 31-13 at 14.) On July

25

27, 2015, R. Farrell, Psy.D. charted that in response to why petitioner came to MHCB, he

26

responded: “Tried to kill myself.” “Lancaster.” “Voices in my head.” “When can I get

27

something to read.” (ECF No. 31-13 at 37.) Dr. Farrell diagnosed petitioner with MDD,

28

recurrent, mild, polysubstance dependence (Axis I), and ASPD (Axis II); GAF 30, and noted:
35

1

“Unstable. Per previous clinician’s intake [petitioner] may be trying to get out of serving time in

2

ad seg. Currently presenting very depressed but also asking for something to do.” (Id.) Various

3

evaluations were performed as petitioner was on suicide watch from July 24 to August 7, 2015.

4

(ECF Nos. 31-2 at 208-10; 31-8 at 30-32; 31-12 at 77, 86-89; 31-14 at 7.) While he remained

5

housed in the MHCB, his GAF scores were 28 (July 28), 30 (July 29), 35 (July 30), 30 or 35 (July

6

31), 35 (August 1, 2); 35-40 (August 3); 30 (August 4); 35 (August 5). (ECF No. 31-13 at 22, 24,

7

26, 27, 29, 31, 32, 33, 35, 36.)

8
9

On August 6, 2015, petitioner was discharged from MHCB to EOP; discharge diagnoses:
MDD, recurrent, mild; polysubstance dependence (by history) (Axis I); ASPD (Axis II): GAF 45.

10

(ECF Nos. 31-12 at 79; 31-13 at 21.) L. Wang, Ph.D. noted an ongoing consideration of the

11

presence of secondary gain given current ad seg term and multiple pending 115s. (Id., & 31-13 at

12

21.) Petitioner was compliant with all MHCB treatment, and appeared motivated for treatment

13

based on his statements and compliance with MHCB treatment; would benefit from EOP

14

treatment. (ECF No. 31-13 at 21.) Petitioner was taking Strattera 40 mg for ADHD; benztropine

15

1 mg for EPS; escitalopram (Lexapro) 10 mg for depression; Remeron 30 mg for depression; and

16

Zyprexa 10 mg for psychosis. (ECF Nos. 31-12 at 92; 31-13 at 41.) His prescriptions for

17

Mirtazapine 30 mg and Olanzapine (Zyprexa)10 mg were renewed. (ECF Nos. 31-12 at 79; 31-

18

13 at 40-41.)

19

On August 12, 2015, R. Girod, Psy.D. performed a mental health exam noting petitioner’s

20

mood disorder and suicidality while housed in ad seg. (ECF No. 31-2 at 197.) Petitioner reported

21

he dropped out of 6th grade to care for younger siblings; repeated 4th and 5th grade, but was in

22

regular mainstream classes; was hit in the head with a bat on the streets and was in a coma for 9

23

months after head trauma event at age 17. (ECF No. 31-2 at 198, 199.) Mental health exam

24

noted adequate cooperation, but petitioner “appeared to over report mental health symptoms.”

25

(ECF No. 31-2 at 201.) His cognition was alert, oriented x 4, logical, linear and goal directed

26

with no evidence of hallucinations, delusions or grandiosity; adequate concentration with no

27

evidence of memory impairment. His thought processes were within normal limits; good

28

judgment and insight into navigating prison environment. (ECF No. 36-2 at 202.) Dr. Girod
36

1

noted petitioner spent most of his life incarcerated, and review of his c-file reveals he may hold a

2

high ranking position within the gang with which he associates. (ECF No. 36-2 at 203.)

3

Diagnoses: MDD, recurrent, moderate, without psychotic features; Amphetamine Dependence

4

(Axis I); and ASPD (Axis II); GAF 47; functional impairment: moderate for behavioral control

5

and interpersonal; mild for mental illness symptoms. (ECF No. 31-2 at 205.) Petitioner to remain

6

at EOP level of care. (Id.) He was prescribed Zyprexa 20 mg and Remeron 45 mg; Mirtazapine

7

(antidepressant), 30 mg, and olanzapine (Zyprexa), 10 mg (atypical antipsychotic) were stopped.

8

(ECF No. 31-1 at 51.)

9

On August 12, 2015, petitioner was in ad seg for possession of contraband, participating

10

in gang activity, and refusal to accept assigned housing; being treated for MDD, auditory

11

hallucinations, and ADD; petitioner reported still feeling depressed, felt others poisoning his

12

food, others plotting against him, and having panic attacks, and the voices constant, saying

13

negative things about him. (ECF No. 31-8 at 26.) Dr. Chang performed a routine initial

14

psychiatric evaluation; working diagnosis schizoaffective disorder; petitioner still having

15

symptoms of depression and psychosis; GAF 55; Remeron increased to 45 mg per petitioner’s

16

request; Strattera increased to 80 mg, Zyprexa increased to 20 mg to reduce voices; Cogentin

17

made PRN, and Lexapro maintained. (ECF No. 31-8 at 26-28.)

18

On August 19, 2015, GAF was 47. (ECF No. 31-2 at 44, 128.) Diagnoses: MDD,

19

recurrent; schizoaffective disorder, depressive type, and amphetamine dependence (Axis I); and

20

ASPD (Axis II); his problems were identified as depression, amphetamine dependence and

21

childhood trauma history. (ECF No. 31-2 at 128-29.) His psychiatric medications were

22

benztropine 1 mg for EPS; Remeron 45 mg for depressive symptoms of intrusive thoughts at

23

night; Zyprexa 20 mg for psychotic symptoms; and Lexapro 10 mg for depressive symptoms of

24

sadness, negative intrusive thoughts. (ECF No. 31-2 at 136.) On August 18, 26, 31, 2015,

25

petitioner found alert, oriented x 4, logical, linear and goal directed in his cognitions, no evidence

26

of hallucinations; GAF 45; stable. (ECF No. 31-7 at 94; 31-8 at 7, 20.)

27
28

On February 18, 2016, petitioner was excluded from the Disability Placement Program.
(ECF No. 31-18 at 2-3.)
37

1

5. Plaintiff’s Administrative Grievances

2

On August 16, 2015, petitioner filed grievance LAC S-15-03307, claiming that after he

3

was taken to the infirmary on July 23, 2015 on suicide watch, and then transferred to CHCF, his

4

personal property was taken out of his cell. (ECF No. 31-17 at 5.) Petitioner provided an

5

inventory of his missing property, and sought the return or replacement of his personal property,

6

noting that officers “should know the difference between property or trash.” (Id.) Petitioner

7

pursued this grievance at least through second level review. (ECF No. 31-17 at 5-47.)

8
9

On July 22, 2015, petitioner filed a grievance claiming he was denied access to the law
library in ad seg and denied law library paging. (ECF No. 31-17 at 48.) The appeal was

10

withdrawn on August 19, 2015, because petitioner received his material. (ECF No. 31-17 at 49.)

11

On April 23, 2015, petitioner appealed CDCR-115, Rules Violation Report (“RVR”) No.

12

D15-03-0063, for refusing to submit a urine sample, grievance LAC S-15-01558, at least through

13

second level review. (ECF No. 31-17 at 52-65.)

14

On August 21, 2014, in grievance LAC D-14-02848, petitioner appealed RVR No. W12-

15

12-0005, dated December 9, 2012, for introduction of a controlled substance with intent to

16

distribute, at least through the second level of review. (ECF No. 31-17 at 72-94.)

17

On July 15, 2013, in grievance LAC-B-13-02447, petitioner appealed RVR No. S13-03-

18

0036, dated March 19, 2013, for “willfully delaying any peace officer by refusing to accept

19

assigned housing,” at least through the second level of review. (ECF No. 31-17 at 95-110.)

20
21
22

6. Discussion
a. Severe Mental Impairment
“Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It

23

interferes with an individual’s functioning at different times in different ways.” Indiana v.

24

Edwards, 554 U.S. 164, 175 (2008). Petitioner’s mental health history is no different.

25

Petitioner’s mental health records reflect that in December of 2011, he was diagnosed as

26

suffering from major depressive disorder, recurrent severe with psychotic features, with moderate

27

functional impairment due to mental illness symptoms; he was admitted to the CCCMS level of

28

care, but managed without medication. However, by January of 2012, he was prescribed
38

1

psychotropic medication: Risperdal, an antipsychotic, and Remeron, an antidepressant, based on

2

diagnoses of psychotic and depressive disorders. At some point he was also prescribed

3

Mirtazapine, for mood disorder, which was stopped on February 6, 2012, and hydroxyzine

4

pamoate for anxiety, renewed in August. He reported hearing voices, felt paranoid; tried to read

5

but couldn’t concentrate; and saw “shadows”; by April, his diagnosis was changed to depressive

6

disorder, no evidence of genuine psychosis. Petitioner reported a “lazy” feeling from the

7

Remeron, which was decreased to 15 mg, and was prescribed Vistaril for nocturnal agitation. In

8

September, he reported he stayed to himself to avoid trouble. In December, Dr. Hicks noted

9

petitioner felt restless in the night and obsessively ruminated about his life. By the end of

10

December, petitioner was not sleeping well, and was assessed as paranoid, hypervigilant, and

11

agitated, which largely resulted from a recent cellmate. Despite such symptoms, his GAF scores

12

in 2012 fluctuated from a low of 55 to a high of 60. However, on January 8, 2013, petitioner was

13

admitted to a crisis bed due to adjustment disorder with disturbance of conduct; GAF 25; Dr.

14

Davidson later noted that petitioner’s voices were not hallucinations, and found petitioner had a

15

history of acting out and having poor coping skills. His GAF score improved to 45, and by

16

January 17, 2013, petitioner was released from the MHCB, and Dr. Liflyandsky opined that there

17

was no strong evidence that petitioner actually exhibited major depressive disorder, assigning a

18

GAF of 70. However, petitioner’s mental health chrono and IDTT, as well as Dr. Maez, listed

19

petitioner’s GAF as 60. By January 30, 2013, petitioner reported that medications control his

20

depression, and he had no auditory hallucinations; his diagnosis was depressive disorder.

21

Nevertheless, here, the relevant time period is between February 6, 2013, when the one-

22

year limitations period began, and June 28, 2015, the date the instant petition was constructively

23

filed. See Laws, 351 F.3d at 923 (Despite evidence of serious mental illness, in 1993, Laws was

24

adjudicated competent to stand trial, but such finding did not determine Laws’ competence from

25

1996-2000, when his habeas petitions should have been filed.) However, in a case factually

26

similar to this one, the Ninth Circuit focused on the one year during which the limitations ran.

27

Orthel, 795 F.3d at 938. Thus, the undersigned focuses on the one year period when the statute of

28

limitations ran for this petitioner, from February 6, 2013, and February 6, 2014, during which he
39

1
2

was at the CCCMS level of mental health care.
At the beginning of the limitations period, on February 6, 2013, petitioner was assessed as

3

agitated and hallucinatory, and was not sleeping, but by February 12, 2013, housed in ad seg, he

4

was “ok,” his thought process was linear, insight/judgment fair; Dr. Hicks assessed petitioner

5

with a history of adjustment disorder with depressed mood, and noted petitioner was stable on

6

current psychiatric medication, and continued Remeron and Mirtazapine. On February 20, while

7

housed in ad seg, petitioner was diagnosed with depressive disorder with psychotic symptoms and

8

ASPD; moderate functional impairment. On March 5, 2013, petitioner was again hearing voices;

9

Dr. Hicks noted petitioner had a history of schizoaffective disorder, depressed type, and

10

prescribed Abilify for psychosis; Remeron for depression and anxiety, and Mirtazapine was

11

renewed. On March 18, petitioner presented as stable, but was noncompliant with medications

12

because he reported they were making him sick. On April 3, 9 and 15, 2013, petitioner presented

13

as stable, but was again noncompliant with medication. In early April, petitioner wanted to be

14

referred to IDTT for EOP; by late April, he wanted to be removed from medication so he could

15

remain on yard when the weather got hot. By May 2, 2013, Dr. Blickhan reported no evidence of

16

hallucinations; petitioner stable, and listed the diagnosis from the mental health tracking system:

17

MDD, recurrent, severe with psychotic features. However, at the May IDTT, petitioner was

18

diagnosed with depressive disorder with psychotic symptoms and ASPD; he continued to

19

complain his medications were bothering him. On May 23, 2013, housed in general population,

20

petitioner stopped taking Abilify, but continued taking Remeron and Mirtazapine. On June 6,

21

August 15, November 8, 2013, and January 16, 2014, petitioner was oriented x 4, thought process

22

goal directed, linear, logical; thought content no delusions or hallucinations or obsessions;

23

cognition intact; insight fair or good; judgment good; diagnosed depressive disorder; PSD;

24

ASPD. His medications from June 13, 2013, through January 16, 2014, remained unchanged.

25

From February 6, 2013, to February 6, 2014, petitioner’s GAF levels were usually 65, with the

26

exception of February 20, 2013 (GAF 60), and October 7 (on modified program) and December

27

5, 2013 (GAF 55).

28

Such records do not reflect that petitioner’s mental impairment was so severe that he was
40

1

unable to rationally or factually able to understand the need to timely file or rendered him unable

2

to prepare a habeas petition and file it. Rather, the records show he was oriented, his thought

3

processes were linear, his functional impairment was moderate, and his cognition intact. Despite

4

the shifting diagnoses, the recurrent diagnosis from June 6, 2013 through the end of the

5

limitations period was depressive disorder. The records show he was stable on medication,

6

particularly from June 6, 2013, through January of 2014. See Fite v. Martel, 2011 WL 1648581,

7

at *6 n.10 (C.D. Cal. Mar. 24 2011) (taking psychiatric medication alone insufficient to

8

demonstrate that the petitioner was entitled to equitable tolling, especially given that the

9

medication stabilized his condition during the relevant time period), Report and Recommendation

10

adopted by 2011 WL 1642373 (C.D. Cal. Apr. 29, 2011).

11

As argued by respondent, petitioner was included in the CCCMS level of care from 2011

12

through July of 2015, and it was not until August of 2015 that he was placed in the EOP level of

13

care, and even then, petitioner’s mental health was charted as stable. Treatment at the CCCMS

14

level of care “suggests that petitioner was able to function despite his mental health problems.”

15

Washington, 2010 WL 1999469, at *2 (citing Coleman, 922 F. Supp. 2d at 903 n.24 (inmates

16

designated to the CCCMS level of care “are those ‘whose symptoms are under control or in

17

partial remission and can function in the general prison population, administrative segregation, or

18

segregated housing unit’”). Petitioner appears to argue that he did not receive EOP treatment

19

until 2015, when the Coleman attorney and petitioner’s psychiatrist exerted pressure to do so,

20

suggesting that petitioner believes he should have earlier been assigned to EOP status. Petitioner

21

does not identify the psychiatrist, or at what point he believes he should have been EOP. The

22

mental health records do not reflect a recommendation by a psychiatrist that petitioner be

23

assigned EOP that was not followed. Moreover, while the mental health records reflect

24

differences of opinion among treating mental health professionals about petitioner’s diagnosis,

25

the record does not reflect a difference of opinion as to his level of care. Rather, the record

26

reflects that petitioner sought EOP status on December 18, 2012, allegedly because he wanted

27

outdoor time; and on several occasions in April and May of 2013, petitioner refused to meet with

28

clinicians because they would not refer him to an IDTT for EOP status.
41

1

Moreover, while a GAF score is not dispositive, the predominant GAF score of 65 is not

2

consistent with a finding that petitioner was so impaired by his depression that he could not

3

understand the need to seek habeas relief or take steps to seek such relief. Petitioner’s TABE was

4

consistently listed as 6.6, and special education was noted, but he presented with average

5

intellectual functioning.

6

Importantly, petitioner was able to file an administrative grievance on July 15, 2013,

7

either by himself or with assistance. See Roberts, 627 F.3d at 773 (mental incompetence did not

8

cause untimeliness where petitioner filed several petitions in state court during time for which he

9

sought equitable tolling). Petitioner challenged an RVR issued for his alleged refusal to accept a

10

cellmate on the grounds that he did not receive 30 days’ notice, and did not receive a copy of the

11

final CDC-115 until two months later, resulting in his late appeal. The grievance was neatly

12

printed, and appended appropriate documents. (ECF No. 31-17 at 99, 101.) Petitioner argues that

13

he was only able to file grievances with the assistance of staff or mental health staff, who cannot

14

assist inmates in filing legal actions or motions. But petitioner fails to explain why he could not

15

obtain assistance to timely file his habeas petition, particularly where he was able to later file

16

three state habeas petitions, as well as the instant petition.

17

The Ninth Circuit has held that “[w]here a habeas petitioner’s mental incompetence in fact

18

caused him to fail to meet the AEDPA filing deadline, his delay was caused by an extraordinary

19

circumstance beyond [his] control, and the deadline should be equitably tolled.” Laws, 351 F.3d

20

at 923 (internal quotation marks omitted, alteration in original). See, e.g., Forbess v. Franke, 749

21

F.3d 837 (9th Cir. 2014) (reversing district-court decision which had dismissed habeas petition as

22

untimely, panel held that petitioner had showed that his mental illness was so severe that he was

23

unable to understand the need timely to file the petition and made it impossible, under all the

24

circumstances, to meet the filing deadline despite his diligence). However, in Forbess, the court

25

found that Forbess’ delusions persisted throughout the relevant period, and various doctors opined

26

that the prisoner suffered from severe delusions and documented Forbess’ belief that he was

27

working for the FBI. Id. Here, petitioner did not suffer hallucinations throughout the limitations

28

period; rather, he complained of auditory hallucinations on February 6, 2013, but mental health
42

1

staff found he suffered from no hallucinations for the rest of the limitations period. Moreover,

2

earlier, on January 11, 2013, psychiatrist Dr. Davidson opined that petitioner’s “voices” were not

3

hallucinations. (ECF No. 31-11 at 70-71.)

4

In addition, the record reflects that despite being medicated, petitioner was able to

5

communicate with mental health staff; he identified when he believed a certain drug was not

6

working, and could identify drugs that had helped in the past. In his supplemental filing, after

7

listing all of the various medications petitioner has been prescribed, petitioner argues that “taking

8

most of these medications simultaneously increased the side effects on the petitioner’s ability to

9

function at the level that can be said of common people functioning in their ability to function in

10

their daily activities without the need of assistance.” (ECF No. 36-1 at 4.) However, during the

11

limitations period, once he stopped taking Abilify, it appears that petitioner took Remeron and

12

Mirtazapine from June 2013 through February 2014. Petitioner did not address the side effects, if

13

any, of Mirtazapine. The other drugs addressed by petitioner were prescribed either before or

14

after the limitations period. Aside from his description of the common side effects of Remeron,

15

petitioner fails to articulate how the side effects from Remeron and Mirtazapine kept him from

16

timely filing the instant petition, particularly where the medical records do not reflect that he

17

required assistance with activities of daily living, his cognition was intact, and his thoughts linear,

18

and he was able to request certain treatment or changes in his medication. Such records

19

demonstrate that petitioner’s mental impairments were not so severe that they made it impossible

20

for petitioner to timely file his federal habeas petition, either on his own or with assistance.

21

Viewing the mental health records in their entirety, the record amply demonstrates that

22

petitioner grappled with significant mental health issues during his incarceration, and has been

23

prescribed psychiatric medications, which were adjusted multiple times. There is evidence that

24

petitioner suffers from various mental impairments such as MDD, depressive disorder, or ASPD.

25

The record also reflects that petitioner had attempted suicide while in the community, and

26

expressed suicidal ideation in January of 2013 when his girlfriend broke up with him, and was on

27

suicide watch from July 24, 2015, to August 7, 2015, and was placed in a MHCB on both

28

occasions. At such times, petitioner’s mental state deteriorated; in January of 2013, his GAF was
43

1

recorded as 45; in July and August of 2015, his GAF fluctuated from 28 to 40. However, such

2

events were not a constant or even frequent occurrence.

3

Moreover, the records demonstrate that mental health professionals usually described

4

petitioner’s thoughts as organized and linear, his cognition intact, and he had average intelligence.

5

In June and September of 2014, petitioner expressed an interest in pursuing his GED. Petitioner

6

was able to communicate clearly with medical staff, and articulate when he believed he needed a

7

change in medication or treatment, and he was usually stable on medications, even after he was

8

placed on EOP status. In addition, some of the records suggest petitioner may have been

9

exaggerating his symptoms, and during his MHCB crisis in July of 2015, records warned prison

10

personnel to “consider the presence of secondary gain given his current Ad-Seg term and multiple

11

pending 115s.” (ECF Nos. 31-12 at 79; 31-13 at 21; 37.)

12

For all of the above reasons, the mental health records demonstrate that petitioner’s

13

mental impairments were not so severe that they made it impossible for petitioner to timely file

14

his federal habeas petition, either on his own or with assistance.

15
16

b. Diligence
In any event, even if petitioner’s mental illness was so severe as to meet the first prong of

17

Bills, petitioner failed to support his claim of diligence. Petitioner “must diligently seek

18

assistance and exploit whatever assistance is reasonably available.” Bills, 628 F.3d at 1100. A

19

petitioner may satisfy the diligence prong if “the petitioner’s mental impairment prevented him

20

from locating assistance or communicating with or sufficiently supervising any assistance

21

actually found.” Id. “[E]ven in cases of debilitating impairment the petitioner must still

22

demonstrate diligence.” Yeh, 751 F.3d at 1078. But, as the Supreme Court noted in Holland, the

23

diligence requirement is not maximum diligence but rather reasonable diligence. 560 U.S. at 653.

24

Thus, the court must examine whether, given petitioner’s impairments, he was sufficiently

25

diligent.

26

Here, petitioner does not set forth what efforts he undertook, if any, to obtain assistance to

27

file a timely petition, or demonstrate that his mental impairments prevented him from locating or

28

communicating with others for assistance. Rather, petitioner claims generally that the law library
44

1

did not provide adequate inmate clerks who knew what they were doing and thus he was “at the

2

mercy of finding some inmate legal assistant willing to help him, as general population looks

3

down at inmates that are participants in the mental health system.” (ECF No. 36-1 at 2.) Such

4

allegations are insufficient to show that petitioner was reasonably diligent under the

5

circumstances. Again, petitioner fails to detail any specific attempts to either prepare his own

6

petition, or to obtain assistance. Moreover, even considering petitioner’s allegations, the court

7

finds them too general and broad to demonstrate that he acted with reasonable diligence to qualify

8

for equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (per

9

curiam) (equitable tolling determinations are “highly fact-dependent”); Lott v. Mueller, 304 F.3d

10

918, 923 (9th Cir. 2002) (observing that equitable tolling determinations “turn[ ] on an

11

examination of detailed facts”). Given the absence of detailed facts, petitioner has not carried his

12

burden of showing that he satisfies the diligence prong of his equitable tolling claim. See

13

Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (“[Petitioner] bears the burden of

14

showing that [equitable tolling] should apply to him.”).

15

Moreover, the records reflect that petitioner filed three state habeas petitions in three

16

different courts, raising substantive legal challenges. The second state habeas petition has

17

attachments that suggest petitioner may have been assisted by another inmate. (LD 6.) The fact

18

that petitioner may have been assisted by another inmate during this period does not change the

19

analysis. Petitioner apparently knew how to ask for help, as his state habeas petitions were filed

20

and progressed through the courts. See Roberts, 627 F.3d at 773 (mental incompetence did not

21

cause untimeliness where petitioner filed several petitions in state court during time for which he

22

sought equitable tolling).

23

Importantly, petitioner has not explained why his mental illness, or the effects of

24

medication used to treat that illness, did not prevent him from filing his state and federal habeas

25

petitions when he did, yet allegedly did prevent him from getting help to file the petition during

26

the limitation period discussed above. See Duran v. Parmo, 2012 WL 5457423, *9 (C.D. Cal.

27

Nov. 7, 2012) (the prisoner failed to show that his alleged mental impairment made it impossible

28

to meet the filing deadline under the totality of the circumstances, including reasonably available
45

1

access to assistance, where evidence reflected prisoner was able to obtain inmate assistance, yet

2

provided no explanation why he could not have filed a timely federal petition with such

3

assistance.) (internal quotes and citations omitted). “The Court will not stereotype all petitioners

4

diagnosed with a mental illness . . . -- especially those who are treated with medication -- as

5

inherently and endlessly incompetent.” Corral v. Evans, 2010 WL 1267778, *3 (N.D. Cal. Mar.

6

31, 2010). Here, during the time he filed his state and federal habeas petitions in 2014 and 2015,

7

petitioner was also diagnosed with depressive disorder or MDD, and was prescribed Strattera,

8

Remeron, and Mirtazapine, two of the drugs he was taking during the limitations period.

9

Petitioner fails to demonstrate what obstructed him from filing his state petitions earlier, and from

10

timely filing the instant petition. In other words, petitioner fails to show his mental impairment

11

was significantly distinguishable during the period the limitations ran from when he actually filed

12

his state and federal habeas petitions. “Without any allegation or evidence of how petitioner’s

13

symptoms actually caused him not to be able to file despite his diligence, the court cannot find

14

that he is entitled to equitable tolling.” Taylor v. Knowles, 2009 WL 688615, at *6 (E.D. Cal.

15

March 13, 2009), aff’d, 368 Fed. Appx. 796 (9th Cir. 2010) (no equitable tolling where petitioner

16

failed to show his auditory hallucinations, severe depression, and anxiety “actually caused him

17

not to be able to file despite his diligence”); see Howell v. Roe, 2003 WL 403353, *4 (N.D. Cal.

18

Feb. 20, 2003) (rejecting equitable tolling where petitioner’s suicidal nature and depression did

19

not make him mentally incompetent).

20

Therefore, the court concludes that petitioner has not met his burden to demonstrate that

21

extraordinary circumstances beyond his control -- that either he was unable rationally or factually

22

to personally understand the need to timely file, or his mental state rendered him unable to

23

personally prepare a habeas petition and effectuate its filing -- and that he diligently pursued the

24

claims to the extent that he could understand them, but that the mental impairment made it

25

impossible to meet the filing deadline under the totality of the circumstances.

26

Because the record is sufficiently developed for the undersigned to conclude that

27

petitioner’s mental illness was not so severe as to cause the untimely habeas petition, petitioner is

28

not entitled to an evidentiary hearing. Accordingly, for the reasons discussed above, the
46

1

undersigned finds that petitioner is not entitled to equitable tolling based on mental illness.

2

B. Other Claims for Equitable Tolling

3

Petitioner’s claim for equitable tolling on the basis that mentally impaired inmates should

4

be provided legal assistance or equitable tolling under the ADA is without merit. Petitioners have

5

no right to legal assistance on collateral review. Coleman v. Thompson, 501 U.S. 722, 752

6

(1991). There is no Sixth Amendment right to counsel during state habeas proceedings. Jeffers

7

v. Lewis, 68 F.3d 299, 300 (9th Cir. 1995). The state is not required to provide assistance to

8

“enable the prisoner to discover grievances, and to litigate effectively once in court.” Lewis v.

9

Casey, 518 U.S. 343, 354 (1996).

10

In addition, petitioner’s claim that he should be provided legal assistance under the ADA

11

is not cognizable in a federal habeas action. A habeas corpus petition is the correct method for a

12

prisoner to challenge the “legality or duration” of his confinement, Badea v. Cox, 931 F.2d 573,

13

574 (9th Cir. 1991), quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973). However, a civil

14

rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the

15

conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411

16

U.S. at 499; Badea, 931 F.2d at 574. The issue of equitable tolling on the basis of mental

17

impairment is governed by Bills, as addressed above.

18

Petitioner concedes he has zero understanding of the law. (ECF No. 23 at 12.) However,

19

to the extent that petitioner contends that the extraordinary circumstance was his lack of

20

understanding of the law, his claim for equitable tolling must fail. Rasberry v. Garcia, 448 F.3d

21

1150, 1154 (9th Cir. 2006) (pro se petitioner’s ignorance and confusion about the law not

22

sufficient); see, e.g., Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (pro se

23

prisoner’s illiteracy and lack of knowledge of law unfortunate but insufficient to establish cause).

24

In addition, to the extent petitioner contends that the condition of being housed in ad seg,

25

although it does result in increased limitations on access to legal materials and the law library, is

26

not an extraordinary circumstance entitling him to equitable tolling. Ramirez v. Yates, 571 F.3d

27

993, 998 (9th Cir. 2009) (equitable tolling not warranted where petitioner housed in ASU despite

28

increased limitations on access to law library and legal materials).
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1

VI. Alternative Grounds

2

Petitioner challenges his conviction on the grounds that he suffered ineffective assistance

3

of counsel in both his current and prior criminal cases in connection with his guilty plea and

4

sentencing. (ECF No. 1 at 9.) Petitioner states that between October 21, 1990, and October 29,

5

1990, he was charged with nine counts of robbery in two separate cases in Alameda County

6

Superior Court. (ECF No. 1 at 10.) Petitioner was represented by counsel and on August 9,

7

1991, petitioner accepted a plea deal in which he agreed to plead guilty to all nine counts of

8

robbery in exchange for a 25 year sentence. (Id.) Petitioner then recounts a series of 19

9

robberies,11 some of which were multiple robberies occurring on one day, that he was charged

10

with committing over the eight day period in October of 1990. (ECF No. 1 at 11.) Petitioner

11

contends that because these crimes took place in close proximity and in the same court

12

jurisdiction, and all involved the same criminal intent, i.e., robbery, they should have been

13

charged in one criminal case. (ECF No. 1 at 12, 14-15.) Petitioner argues that he received no

14

benefit from the plea bargain because he was subjected to a second prior conviction under

15

California Penal Code § 667(a), thereby facing a twenty-five year to life sentence under

16

California’s Three Strikes Law, and resulting in his attorney negotiating a plea bargain for a

17

determinate sentence of 30 years in the 2011 conviction.

18

Respondent argues that to the extent petitioner challenges the validity of prior convictions

19

used to elevate petitioner’s current sentence, such claims are foreclosed by Lackawanna County

20

Dist. Atty. v. Coss, 532 U.S. 394, 402 (2001). (ECF No. 13 at 4-5.) Respondent contends that

21

because petitioner’s predicate prior is “no longer open to direct or collateral attack in its own right

22

because [petitioner] failed to pursue those remedies while they were available (or because

23

[petitioner] did to unsuccessfully),” petitioner “may not challenge the enhanced sentence through

24

a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.”

25

(ECF No. 13 at 5, quoting Lackawanna, 532 U.S. at 402.)

26
27
28

As a general rule, if a prior conviction used to enhance a state sentence is fully expired in
11

The 19 robberies are also described in detail in the attachment to petitioner’s habeas petition
filed in the superior court. (LD 4, Ex. 2 at 2-5.)
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1

its own right, the defendant may not collaterally attack his prior conviction through a § 2254

2

petition. Daniels v. United States, 532 U.S. 374, 383 (2001); Lackawanna, 532 U.S. at 403-04;

3

Gill v. Ayers, 342 F.3d 911, 919 n.7 (9th Cir. 2003). In this regard, the Supreme Court has held

4

that “once a state conviction is no longer open to direct or collateral attack in its own right

5

because the defendant failed to pursue those remedies while they were available (or because the

6

defendant did so unsuccessfully), the conviction may be regarded as conclusively valid.”

7

Lackawanna, 532 U.S. at 403. The Supreme Court has recognized the following exception to this

8

general rule: a defendant may challenge an expired conviction in the context of an enhanced

9

sentence “on the basis that the prior conviction used to enhance the sentence was obtained where

10

there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon

11

v. Wainwright.” Lackawanna, 532 U.S. at 404 (citing Gideon v. Wainwright, 372 U.S. 335

12

(1963)). See also Daniels, 532 U.S. at 382 (“this rule is subject to only one exception”); Franklin

13

v. Small, 161 F.Supp. 2d 1087, 1102 n.3 (N.D. Cal. 2001).12

14

In Daniels, the United States Supreme Court also suggested that another exception to this

15

rule may be available in “rare cases in which no channel of review was actually available to a

16

defendant with respect to a prior conviction, due to no fault of his own.” 532 U.S. at 383. The

17

Court in Daniels did not elaborate on the type of “rare” case it was referring to. However, in

18

Lackawanna the Supreme Court provided as an example a case in which a state court, without

19

justification, refused to rule on a constitutional claim that was properly presented to it, or a case in

20

which, after the time for direct or collateral review had expired, the defendant obtained

21

compelling evidence of actual innocence which he could not have uncovered in a timely manner.

22

532 U.S. at 405. In such circumstances an exception to the general rule barring collateral attack

23

on an expired sentence may be warranted because a federal habeas petition directed at a sentence

24

enhanced by such an expired sentence “may effectively be the first and only forum available for

25
12

26
27
28

The Supreme Court observed that Gideon claims have a special status because “the ‘failure to
appoint counsel for an indigent [is] a unique constitutional defect . . . ris[ing] to the level of a
jurisdictional defect,’ which therefore warrants special treatment among alleged constitutional
violations.” Lackawanna, 532 U.S. at 404 (quoting Custis v. United States, 511 U.S. 485, 496
(1994)).
49

1

review of the prior conviction.” Id. at 406. The court in Lackawanna explained the rationale for

2

allowing a collateral challenge to a prior conviction under such rare circumstances as follows:

3

The general rule we have adopted here and in Daniels reflects the
notion that a defendant properly bears the consequences of either
forgoing otherwise available review of a conviction or failing to
successfully demonstrate constitutional error. It is not always the
case, however, that a defendant can be faulted for failing to obtain
timely review of a constitutional claim.

4
5
6
7

Lackawanna, 532 U.S. at 405.

8

Here, petitioner’s 1991 Alameda County convictions are no longer open to direct or

9

collateral attack. (LD 4, Ex. 1-2.) The undersigned queried the CM/ECF electronic filing system

10

for the United States District Court for the Northern District of California, which reflects no

11

petition for writ of habeas corpus challenging the 1991 conviction by petitioner. It is undisputed

12

that petitioner was represented by counsel; thus, petitioner’s claim does not fall under the narrow

13

exception to this rule and is not subject to review. Assuming, without deciding, that there is an

14

exception to the rule set forth in Lackawanna and Daniels for “rare cases,” the undersigned

15

concludes that the circumstances of this case do not justify the application of such an exception.

16

See Johnson v. United States, 544 U.S. 295, 304 n.4 (2005) (stating that the Court has recognized

17

“only one exception” to the prohibition on federal collateral attacks on prior state convictions and

18

declining to explore the possible “rare” second exception).13
Accordingly, respondent’s motion to dismiss petitioner’s claims challenging the validity

19
20

of his prior criminal convictions used to enhance his current sentence be granted.

21

////

22

////

23
24
25
26
27
28

13

In denying the petition for writ of habeas corpus on this claim, the Sacramento County
Superior Court applied the two-prong test required in Strickland v. Washington , 466 U.S. 668
(1984), and found that because the offenses committed by petitioner were committed at different
times, at different places, and against different victims, constituting separate and distinct offenses,
any argument that such offenses should be charged as a single count “would be denied as
meritless.” (LD 5 at 4.) Moreover, the superior court noted that petitioner’s belief that charging
all of the offenses in one criminal case would require prosecutors in future cases to only apply
one strike was unavailing because it is the existence of a prior conviction for a qualifying offense
that constitutes a strike prior. (LD 5 at 4.)
50

1
2
3

VII. Conclusion
Accordingly, IT IS HEREBY ORDERED that the May 10, 2016 findings and
recommendations (ECF No. 22) are vacated; and

4

IT IS RECOMMENDED that:

5

1. Respondent’s motion to dismiss (ECF No. 13) be granted; and

6

2. This action be dismissed.

7

These findings and recommendations are submitted to the United States District Judge

8

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

9

after being served with these findings and recommendations, any party may file written

10

objections with the court and serve a copy on all parties. Such a document should be captioned

11

“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

12

he shall also address whether a certificate of appealability should issue and, if so, why and as to

13

which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

14

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

15

§ 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after

16

service of the objections. The parties are advised that failure to file objections within the

17

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

18

F.2d 1153 (9th Cir. 1991).

19

Dated: March 9, 2017

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