Ortega v. Ritchie et al

Filing 47

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANTS 23 MOTION FOR SUMMARY JUDGMENT. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 2/27/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

CARLOS ARMANDO ORTEGA,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 15-cv-04876-HSG (PR)
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.
MARK RITCHIE, et al.,

Re: Dkt. No. 23

Defendants.

12
INTRODUCTION

13
14

On October 23, 2015, plaintiff, an insanity acquittee incarcerated at Napa State Hospital

15

and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging

16

constitutional violations at the Santa Clara County Jail (“SCCJ”), where he was housed as a post-

17

arraignment pretrial detainee at various intervals between 2007 and 2012. On January 9, 2016, the

18

Court screened plaintiff’s first amended complaint (“FAC”), and found that it stated a cognizable

19

claim for deliberate indifference to serious medical needs against SCCJ medical and supervisory

20

staff Mark Ritchie, M.D.; Amarjit Grewal, M.D.; Beverly Purdy, M.D.; Gilda Versales, M.D.;

21

Salma Khan, M.D; Michael Meade, M.D.; Christine Ferry, R.N.; Laurie Smith; Edward Flores;

22

and David Sepulveda.

23

Plaintiff’s deliberate indifference claim was also the subject of a 2009 action brought by

24

plaintiff in this court, Ortega v. Ritchie, at al., No. C 09-5527 SBA (PR). The 2009 action was

25

dismissed without prejudice on the grounds that plaintiff failed to exhaust administrative remedies

26
27
28

1

prior to filing suit as required by the Prison Litigation Reform Act of 1995 (“PLRA”). See Case

2

No. C 09-5527 SBA (PR) at Dkt. No. 94.1
Now before the Court is defendants’ motion for summary judgment. Plaintiff has filed an

3
4

opposition, and defendants have filed a reply. Plaintiff has also filed an unsolicited sur-reply. For

5

the reasons discussed below, the motion will be granted.
BACKGROUND

6

Plaintiff contends he suffers from bi-polar disorder and schizophrenia. He asserts three

7
8

cognizable claims for deliberate indifference.
First, he argues that medical staff at the SCCJ’s Main Jail—Drs. Mark Ritchie, Amarjit

9

Grewal, Beverly Purdy, Gilda Versales and Salma Khan (the “Medical Defendants”)—were

11
United States District Court
Northern District of California

10

deliberately indifferent to his serious medical needs by delaying or denying him medical care and

12

medications between 2007 and 2012. Second, he sues Dr. Michael Meade and nurse Christine

13

Ferry solely for the expert declarations they submitted on behalf of the Medical Defendants in

14

plaintiff’s first lawsuit. Third, plaintiff alleges that correctional department supervisory staff—

15

Sheriff Laurie Smith, former chief of corrections Edward Flores and Captain David Sepulveda (the

16

“Supervisory Defendants”)—were deliberately indifferent to his medical needs by promulgating

17

policies in which inmates were delayed from receiving adequate mental health care and were

18

required to complete “disciplinary time” before being rehoused in mental health units.
DISCUSSION

19
20

I.

Standard of Review

21

Summary judgment is proper where the pleadings, discovery and affidavits show there is

22

“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

23

law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case.

24
25
26
27
28

1

The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect
to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Because plaintiff was adjudicated not guilty by reason of
insanity and has been involuntarily committed to Napa State Hospital, he is not a prisoner as
defined by the PLRA. See Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D. Cal. 2008).
Therefore, the PLRA’s exhaustion requirements no longer apply to plaintiff.
2

1

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

2

genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving

3

party. See id.
A court shall grant summary judgment “against a party who fails to make a showing

4

sufficient to establish the existence of an element essential to that party’s case, and on which that

6

party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an

7

essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

8

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial

9

burden of identifying those portions of the record that demonstrate the absence of a genuine issue

10

of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings

11
United States District Court
Northern District of California

5

and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

12

file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” See id. at 324

13

(citing Fed. R. Civ. P. 56(e) (amended 2010)). The nonmoving party must show more than “the

14

mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litigation, 627 F.3d 376, 387

15

(9th Cir. 2010) (citing Liberty Lobby, 477 U.S. at 252). “In fact, the non-moving party must come

16

forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s

17

favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving party fails to make this

18

showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at

19

323.

20

For purposes of summary judgment, the court must view the evidence in the light most

21

favorable to the nonmoving party; if the evidence produced by the moving party conflicts with

22

evidence produced by the nonmoving party, the court must assume the truth of the evidence

23

submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

24

The court’s function on a summary judgment motion is not to make credibility determinations or

25

weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v.

26

Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

27
28

A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is
based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder
3

1

v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s verified complaint

2

as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746,

3

plaintiff stated under penalty of perjury that contents were true and correct, and allegations were

4

not based purely on his belief but on his personal knowledge). Here, plaintiff’s verified FAC (dkt.

5

no. 10), and plaintiff’s declaration in support of his opposition to summary judgment (dkt. no. 29-

6

22) are considered in evaluating the motion for summary judgment.

7

II.

8
9

Deliberate Indifference to Serious Medical Needs
Deliberate indifference to a serious medical need violates the Eighth Amendment’s

proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104
(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,

11
United States District Court
Northern District of California

10

WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A

12

determination of “deliberate indifference” involves an examination of two elements: the

13

seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need.

14

See McGuckin, 974 F.2d at 1059.

15

Plaintiff’s claims arise under the Due Process Clause of the Fourteenth Amendment rather

16

than under the Cruel and Unusual Punishment Clause of the Eighth Amendment because he was

17

an arrestee or detainee at the relevant time; however, the deliberate indifference standard still

18

applies to his medical care claim. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)

19

(standard of deliberate indifference applicable to pretrial detainees’ medical claims).

20

A “serious” medical need exists if the failure to treat a prisoner’s condition could result in

21

further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d

22

at 1059 (citing Estelle, 429 U.S. at 104). Serious medical needs may include mental health care.

23

See Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (mentally ill prisoner may

24

establish unconstitutional treatment by showing that officials have been deliberately indifferent to

25

his serious medical needs).

26

A prison official is deliberately indifferent if he knows that a prisoner faces a substantial

27

risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer

28

v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from
4

1

which the inference could be drawn that a substantial risk of serious harm exists,” but he “must

2

also draw the inference.” Id. If a prison official should have been aware of the risk but was not,

3

then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v.

4

County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds, Castro v.

5

County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016). Mere negligence, or even gross

6

negligence, is not enough. Farmer, 511 U.S. at 835–36 & n.4.
A claim of medical malpractice or negligence is insufficient to make out a violation of the

7

Eighth Amendment. McGuckin, 974 F.2d at 1059. Nor does “a difference of opinion between a

9

prisoner patient and prison medical authorities regarding treatment” amount to deliberate

10

indifference. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Consequently, a

11
United States District Court
Northern District of California

8

plaintiff’s opinion that medical treatment was unduly delayed does not, without more, state a

12

claim of deliberate indifference. Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407

13

(9th Cir. 1987). In order to prevail on a claim involving choices between alternative courses of

14

treatment, a plaintiff must show that the course of treatment the doctor chose was medically

15

unacceptable under the circumstances and that he chose this course in conscious disregard of an

16

excessive risk to plaintiff’s health. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004);

17

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837).

18

III.

Analysis

19

A.

20

The following is a summary of the specific deliberate indifference allegations and timeline

21

Medical Defendants

against the Medical Defendants contained in plaintiff’s FAC:
March 21-27, 2007: After plaintiff’s arrest on March 21, 2007, Dr. Grewal denied plaintiff
immediate medication; although plaintiff concedes doctors prescribed him medication by
March 24, 2007. Plaintiff further contends Drs. Grewal and Khan denied him immediate
mental health treatment in 8A2, although he concedes he was admitted to “full treatment”
between March 24 and 27, 2007 and that he received “15 minute checks” (FAC ¶¶ 12-13 at
5-6, ¶ 35 at 15);

22
23
24
25

March 28, 2007: Dr. Grewal denied plaintiff treatment in 8A despite plaintiff being
allegedly delusional (FAC ¶ 14 at 6);

26
27
28

2

8A is the Main Jail’s acute psychiatric unit. Declaration of Dr. Meade (“Meade Decl.”) ¶ 5.
5

1
2
3
4
5
6

April 30 – May 6, 2007: Dr. Khan prescribed plaintiff new medication, which plaintiff
claims did not begin working until May 18, 2007 (FAC ¶ 35 at 16);
May 14-18, 2007: Plaintiff claims he suffered because Dr. Versales discharged him from
8A on May 17, 2007 “despite continue[d] presisstance (sic) [of] mental-illness (sic).”
Plaintiff asserts that he was readmitted to 8A by Dr. Versales on May 18 and discharged
again on May 21, 2007 (FAC ¶ 34 at 14-15);
June 29, 2007: Dr. Versales denied plaintiff mental health treatment in 8A (FAC ¶ 34 at
15);

7
8
9
10

United States District Court
Northern District of California

11
12
13
14

June 30, 2007: Dr. Grewal prescribed three weeks of medication to plaintiff (FAC ¶ 15 at
7);
July 9-16, 2007: Dr. Grewal denied plaintiff treatment in 8A for his depression until July
16, 2007 (FAC ¶ 19 at 8);
July 28 – August 6, 2007; Dr. Grewal denied plaintiff treatment in 8A for full mental
health treatment. (FAC ¶ 16 at 7);
August 6-9, 2007: Plaintiff received mental health treatment in 8A (FAC ¶ 16 at 7);
September 30 – October 2, 2007: Plaintiff received mental health treatment in 8A (FAC at
p. 7 ¶ 17);

15
16
17

October 7, 2007: Plaintiff received mental health treatment in 8A for “untreated mental
health delusions” (FAC ¶ 18 at 7-8);

18

November 8 – December 3, 2007: Dr. Khan denied plaintiff mental health treatment in 8A
(FAC ¶ 35 at 17);

19

December 4, 2007 – July 15, 2008: Plaintiff was not in county custody;

20

July 16 – September 3, 2008: Upon his return from Metropolitan State Hospital, Dr.
Grewal denied plaintiff treatment in 8A; although Dr. Grewal prescribed plaintiff
medication, plaintiff alleges the dose was too low (FAC ¶¶ 20-21 at 8);

21
22
23
24
25
26

August 12-15, 2008: Plaintiff alleges he was suicidal because he did not receive his “p.m.
medications for three days” from Dr. Ritchie (FAC ¶ 31 at 11-12);
August 15, 2008: Plaintiff suffered delusions, and Dr. Ritchie denied him full mental
health treatment and care on 8A (FAC ¶ 31 at 11-12);
August 13-19, 2008: Plaintiff claims he suffered a two-day adjustment while he acclimated
and waited “for medications to work or take effect” (FAC ¶ 32 at 12);

27
28

October 14, 2008 – February 25, 2009: Plaintiff was not in county custody;
6

1
2

February 26, 2009 – March 5, 2009: Upon his return from Patton State Hospital, plaintiff
suffered due to low medication dosages from Drs. Grewal and Ritchie, although he
concedes he was receiving “full mental health care on 8-A” between March 2 and 5, 2009
(FAC ¶¶ 23, 26 at 9-10);

3
4
5
6
7
8
9
10

April 9-10, 2009: Plaintiff concedes he refused an appointment with Dr. Ritchie because he
was “stable on his housing and medications” (FAC ¶ 27 at 10);
April 9 – June 8, 2009: Plaintiff suffered when his “medications started not to work” (FAC
¶ 28 at 10);
May 5, 2009: Plaintiff contends he was delusional and unstable due to Dr. Purdy
decreasing his medications; contends he submitted an Inmate Grievance Form to see a
doctor (FAC ¶ 33 at 12-13);
May 6-9, 2009: Plaintiff admitted for full mental health care in 8A; contends he was
improperly discharged on May 9, 2009 by Drs. Purdy and Ritchie (FAC ¶ 24 at 9, ¶ 33 at
13);

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

May 7 – June 8, 2009, Dr. Purdy admitted plaintiff for full treatment in 8A but adjusted
plaintiff’s medications making him more “unstable” (FAC ¶ 33 at 13);
June 8-10, 2009: Plaintiff received treatment in 8A, but Dr. Ritchie released him on June
10, 2009. He also contends his Seroquel medication was stopped. (FAC ¶ 29 at 11);
December 29, 2009: Plaintiff concedes his medications “were good,” but claims he was
denied full treatment in 8A (FAC ¶ 30 at 11);
January 12, 2010: Plaintiff returned from Patton State Hospital (FAC ¶ 25 at 9);
January 12-14, 2010: Plaintiff was admitted to 8A, but Dr. Grewal released him on January
14, 2010 (FAC ¶ 25 at 9);

19
20
21
22
23
24
25
26
27
28

January 25 – February 8, 2012: Dr. Ritchie admitted plaintiff on a 14-day involuntary hold
due to plaintiff’s danger to others, and plaintiff admits he was “serverely (sic) suffering[,]
voices, racing thoughts, depression” (FAC ¶ 32 at ¶ 32).
The Court assumes for purposes of this motion that plaintiff had a serious medical need.
The record, however, amply demonstrates that the Medical Defendants provided plaintiff adequate
care. Plaintiff routinely received ongoing care and treatment during the times he was detained at
SCCJ. Meade Decl. ¶¶ 9-98. These included routine mental health assessments, treatment and
medications. See id. Plaintiff received routine follow-up care when his medications were adjusted
(see, e.g., id. ¶¶ 79, 88-90) and received immediate psychiatric treatment in 8A when indicated by
his own complaints, or when referred by nursing and correctional staff (see, e.g., id. ¶¶ 43, 64, 77).
7

1

Plaintiff himself has submitted reams of exhibits in this action documenting a great deal of care,

2

including regular health care visits and psychiatric assessments at SCCJ.
Defendants have submitted a declaration from Michael Meade, M.D., a physician certified

3
4

by the American Board of Psychiatry and Neurology and a qualified medical examiner with the

5

State of California. Meade Decl. ¶ 1. Dr. Meade reviewed and analyzed all of the medical records

6

from Santa Clara County Adult Custody Mental Health Services and concluded that the

7

evaluation, diagnosis, care, treatment, and advice rendered to plaintiff by the Medical Defendants

8

and other staff complied with the applicable standard of care for psychiatric medicine practitioners

9

and does not evidence indifference by mental health staff. Id. ¶¶ 3, 4. Dr. Meade further
concluded that the medications (both types and dosages) prescribed for plaintiff by the Medical

11
United States District Court
Northern District of California

10

Defendants and other staff complied with the applicable standard of care for psychiatric medicine

12

practitioners. Id. ¶ 6.
Dr. Meade found no indication whatsoever that the Medical Defendants denied plaintiff

13
14

access to mental health treatment. Id. ¶ 5. Rather, according to Dr. Meade, plaintiff was routinely

15

monitored and evaluated by mental health staff. Id. He received medically acceptable mental

16

health treatment, including through psychiatric holds under California Welfare and Institutions

17

Code section 5150.3 Id. Evaluation of such holds occurs within the main jail in unit 8A, which is

18

the main jail’s acute psychiatric treatment facility. Id. Dr. Meade found no indication that

19

plaintiff was denied treatment in 8A when such acute treatment was called for by plaintiff’s

20

symptoms and behaviors. Id.
Plaintiff has failed to come forward with specific facts to support a finding to the contrary,

21
22

let alone a finding of deliberate indifference to his medical needs. He has set forth no evidence

23

showing that the course of treatment the Medical Defendants chose was medically unacceptable

24

under the circumstances and that they chose this course in conscious disregard of an excessive risk

25

to plaintiff’s health. See Toguchi, 391 F.3d at 1058. Plaintiff’s desire to have his medications

26
3

27
28

Pursuant to California Welfare and Institutions Code section 5150, mental health staff is required
to implement an inpatient psychiatric hold for up to 72 hours for any inmate determined to be a
danger to others, danger to self or gravely disabled, for assessment, evaluation, and crisis
intervention, or placement for evaluation and treatment in another facility.
8

1

adjusted or to spend more time in the acute treatment facility, without more, does not create a

2

triable issue of fact as to whether such treatment was medically necessary. See Jackson, 90 F.3d at

3

332; Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (“A difference of opinion between a

4

prisoner-patient and prison medical authorities regarding treatment does not give rise to a Section

5

1983 claim.”)

6

Considering the evidence in the light most favorable to plaintiff, the Court finds plaintiff

7

fails to raise a triable issue of material fact as to whether the Medical Defendants were deliberately

8

indifferent to plaintiff’s serious medical needs. Accordingly, summary judgment will be granted as

9

to defendants Drs. Ritchie, Grewal, Purdy, Varsales and Khan.
B.

11
United States District Court
Northern District of California

10

Plaintiff does not allege that defendants Dr. Meade or Nurse Ferry provided him

12

inadequate health care at SCCJ. Rather, plaintiff sues Dr. Meade and Nurse Ferry based solely

13

upon the testimony (through sworn declarations) that they submitted in plaintiff’s earlier lawsuit,

14

No. C 09-5527 SBA (PR). See FAC ¶¶ 36-41; Pl.’s. Opp’n Summ. J. Exs. D1, E1.

15

Defendants Meade and Ferry

Both private individuals and government officials who serve as witnesses are absolutely

16

immune from suit for damages with respect to their testimony. Paine v. City of Lompoc, 265 F.3d

17

975, 980 (9th Cir. 2001) (“Witnesses, including police witnesses, are accorded absolute immunity

18

from liability for their testimony in judicial proceedings.”) Because they are protected by absolute

19

immunity, summary judgment will be granted as to defendants Dr. Meade and Nurse Ferry.

20

C.

Supervisory Defendants

21

Plaintiff also alleges that defendants Smith, Flores, and Sepulveda are liable in their

22

capacity as supervisors. Specifically, plaintiff alleges that the Supervisory Defendants maintained

23

policies by which (1) the main jail medical staff delayed in providing adequate mental health care

24

to inmates; and (2) inmates with mental health issues were required to complete “disciplinary

25

time” before they could be housed in an acute care step-down ward. FAC ¶¶ 62, 63 at 29-31.

26

Plaintiff has produced no evidence of any such policies. Further, defendants have

27

submitted the official policies regarding mental health and medical treatment for inmates at SCCJ,

28

which policies contradict plaintiff’s allegations. See Declaration of David Sepulveda (“Sepulveda
9

1

Decl.”) Exs. A-F. Specifically, defendants submit evidence of policies that provide numerous

2

avenues for inmates, such as plaintiff, to receive timely and adequate mental health treatment. See

3

id.

4

Finally, defendants submit evidence that plaintiff never served time in disciplinary housing

5

while at SCCJ. See Declaration of Thomas Duran (“Duran Decl.”) ¶ 8. Outside of medical or

6

mental health housing, the only housing units plaintiff was confined to were general housing and

7

administrative segregation. Id. Administrative segregation is different from disciplinary housing

8

in that administrative segregation is not used to punish inmates. Id. Administrative segregation is

9

assigned to inmates who are prone to escape, prone to assaulting staff or other inmates, or likely to
need protection from other inmates. Id. ¶ 11. Plaintiff did not remain in administrative

11
United States District Court
Northern District of California

10

segregation during his entire stay at the main jail, but he was assigned to administrative

12

segregation at times due to his history of being the target of assaults and his own assaultive

13

behavior, including stabbing a correctional officer at another facility, physically assaulting

14

corrections officers at the main jail, threatening to harm correctional officers, and increased

15

altercations with and aggressive behavior toward other inmates. Id. ¶ 12. Plaintiff admits that he

16

had assaulted officers and was a “high risk candidate for suicide and assaultive behavior.” FAC ¶

17

61 at 29; Pl’s Decl. ¶¶ 5-6 at 3-5. Conditions in administrative segregation at the main jail result

18

in little deviation from the conditions imposed on inmates in general housing to the extent

19

possible. Duran Decl. ¶ 11.

20

A supervisor may be liable under § 1983 upon a showing of (1) personal involvement in

21

the constitutional deprivation or (2) a sufficient causal connection between the supervisor's

22

wrongful conduct and the constitutional violation. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

23

2011). A supervisor therefore generally “is only liable for constitutional violations of his

24

subordinates if the supervisor participated in or directed the violations, or knew of the violations

25

and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

26

It is well-established that in order to defeat summary judgment, a plaintiff must come

27

forward with significantly probative evidence from which a jury could reasonably render a verdict

28

in his favor. See Liberty Lobby, 477 U.S. at 249-52; In re Oracle Corp. Sec. Litigation, 627 F.3d.
10

1

376, 387 (9th Cir. 2010). Plaintiff has not. His mere allegations regarding policies that are unfair

2

to mentally ill inmates are simply not enough to show a genuine dispute.
In any event, as discussed above, plaintiff has failed to raise a triable issue of material fact

3
4

that he was subjected to constitutionally inadequate medical care. Therefore, plaintiff has failed to

5

produce sufficient evidence regarding an essential element of his supervisory liability claim, i.e.,

6

an underlying constitutional violation. Accordingly, the Court finds that defendants Smith, Flores,

7

and Sepulveda are not liable, as supervisors, for deliberate indifference, and they are entitled to

8

summary judgment.4
CONCLUSION

9
10

United States District Court
Northern District of California

11

For the foregoing reasons, defendants’ motion for summary judgment is GRANTED. The
Clerk shall enter judgment for defendants and close the file.

12

This order terminates Docket No. 23.

13

IT IS SO ORDERED.

14

Dated: 2/27/2017

15
16
HAYWOOD S. GILLIAM, JR.
United States District Judge

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

4

Because the Court finds all defendants are entitled to summary judgment on the merits of
plaintiff’s Eighth Amendment claims, it need not address defendants’ alternative argument that the
claims are also untimely.
11