Gonzalez v. Zika et al

Filing 66

ORDER by Judge Claudia WilkenGRANTING DEFENDANTS 18 MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS 35 CROSS-MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS 59 REQUEST TO RENEW PRELIMINARY INJUNCTION, DENYING DEFENDANTS 43 MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 8/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIC L. GONZALEZ,
Plaintiff,

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v.

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DR. ZIKA, DR. GARBARINO,
Defendants.

United States District Court
For the Northern District of California 

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__________________________/

No. C 11-5561 CW (PR)
ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, DENYING PLAINTIFF’S
CROSS-MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFF’S REQUEST TO RENEW
PRELIMINARY INJUNCTION, DENYING
DEFENDANTS’ MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION
(Docket nos. 18, 35, 43, 45, 47, 59)

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Plaintiff, a state prisoner incarcerated at the Correctional

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Training Facility (CTF) in Soledad, California, filed this pro se

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civil rights action pursuant to 42 U.S.C. § 1983, alleging

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deliberate indifference to his serious mental health and medical

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needs.

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preliminary injunctive relief, asking the Court to order that he

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be housed in a single cell for ninety days.

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With his complaint, Plaintiff filed a motion for

On September 26, 2012, the Court granted in part Plaintiff’s

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motion for a preliminary injunction and ordered Defendants to

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recommend to prison officials that Plaintiff be single-celled for

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ninety days.

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the Court granted Plaintiff’s request to renew the preliminary

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injunction.

Docket no. 24.

Thereafter, on December 27, 2012,

Docket no. 40.

Now pending before the Court are the following motions, each

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of which has been fully briefed by the parties: (1) Defendants’

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motion for summary judgment, (2) Plaintiff’s cross-motion for

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summary judgment, (3) Plaintiff’s motion to renew the preliminary

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injunction for a second time, and (4) Defendants’ motion for leave
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to file a motion for reconsideration of the order renewing the

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preliminary injunction for the first time.

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For the reasons discussed below, Defendants’ motion for

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summary judgment is GRANTED, Plaintiff’s cross-motion for summary

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judgment and motion to renew the preliminary injunction are

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DENIED, and Defendants’ motion for leave to file a motion for

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reconsideration is DENIED.

United States District Court
For the Northern District of California 

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BACKGROUND

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The following statement of facts is taken from the

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allegations in Plaintiff’s verified complaint and the exhibits

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attached thereto, as summarized in the Court’s prior order

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partially granting the motion for preliminary injunction.1

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Plaintiff is a convicted sex offender. He entered
the CDCR [California Department of Corrections and
Rehabilitation] prison system in 1998 and is serving a
term of thirty-one years to life. Compl. Ex. A-5.

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Prior to entering the CDCR, Plaintiff served some
jail time, living in a dorm set-up. He did not suffer
any anxiety or panic attacks. When he entered the CDCR,
he was double celled. Soon thereafter, he became
fearful that his cellmate would discover he was a sex
offender, and he began to suffer from physical symptoms
that resulted in his being admitted to the hospital for
evaluation. He was not referred for mental health care.
Compl. Ex. A-6.

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In 2003, at CTF, his cellmate assaulted him after
discovering he was a sex offender. After this event,
Plaintiff began to suffer from frequent panic attacks
and symptoms associated with post-traumatic stress
disorder (PTSD), including nightmares, flashbacks, poor

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A verified complaint may be used as an affidavit on summary
judgment, as long as it is based on personal knowledge and sets
forth specific facts admissible in evidence. See Schroeder v.
McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). The Court
addresses the disputed facts presented by Defendants in its
analysis of the summary judgment motion.

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sleep and paranoia. He was seen in the medical clinic,
but was not referred for mental health care. Compl.

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Ex.A-6.

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In June 2007, Plaintiff’s symptoms worsened during
a prolonged lockdown. He was referred for mental health
care. Plaintiff’s psychologist, Dr. Katz, diagnosed him
as suffering from serious panic attacks as the result of
having been attacked by his cellmate and his fear of
being attacked again. In August 2008, Plaintiff was
prescribed cognitive therapy that consisted of breathing
techniques and relaxation skills while housed in a
double cell. He also was prescribed Celexa, an antidepressant, and Vistaril, an anti-anxiety medication.
Nevertheless, his symptoms worsened. Compl. at 1:11-2:2
& Ex. A-7.

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United States District Court
For the Northern District of California 

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Dr. Katz then brought Plaintiff before the CTF
Mental Health Interdisciplinary Treatment Team (IDTT) to
determine whether double celling posed a serious threat
to Plaintiff’s mental health. The IDTT members were Dr.
Katz, Dr. Bony, Ph.D., and Defendant Dr. Zika. On
October 9, 2008, all IDTT members approved the following
recommendation to CTF custody staff:

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Single cell status for 90 days based on Dx
[diagnosis] of panic disorder without agoraphobia
300.01 comorbid with multiple medical problems and
emergency room visits ongoing since 1998 when
placed in double cell housing.

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Compl. Ex. A-1.12

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CTF custody staff followed the IDTT’s
recommendation and placed Plaintiff on single cell
status for ninety days. Compl. at 2:22-3:1. During
that period, Plaintiff’s panic attacks subsided.

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Additionally, Dr. Katz informed him that, because
his anxiety was “worse” than panic disorder, it would be
“virtually impossible” for him to manage it effectively
in double cell housing. Compl. at 3:1-8 & Ex. A-7. Dr.

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The IDTT cannot order that a prisoner be housed in a single
cell or a double cell; it can only make a recommendation to
custody staff about medically appropriate housing. According to
Plaintiff, custody staff “will grant single-cell status 100% of
the time when requested by the IDTT committee.” Compl. at 2 n.2.

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Katz also diagnosed Plaintiff as suffering from
“depressive disorder.” Compl. Ex. A-7.

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On December 23, 2008, Dr. Katz brought Plaintiff
before the IDTT and recommended extending his single
cell status permanently. Compl. at 3:17-22. At the
hearing, Dr. Zika opined that Plaintiff should be double
celled because “exposure therapy” is a common treatment
for those suffering from severe anxiety, and because of
the lack of single cells for more serious cases.
Plaintiff objected to this recommended treatment because
of the real threat he would be attacked again. Compl.
at 4:9-17.

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Dr. Zika denied Plaintiff’s request for permanent
single cell status. He agreed to recommend extending
Plaintiff’s temporary single cell status for another
ninety days, with the caveat that Plaintiff be returned
thereafter to a double cell as part of his treatment
plan. Compl. at 4:18-23. Thus, the IDTT, consisting of
Dr. Katz and Dr. Zika, approved the following
recommendation to CTF custody staff:

United States District Court
For the Northern District of California 

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I/P Gonzalez has been working on his depression and
panic d/o sx. Request permission to extend his
single cell status for 3 months until 3/31/09 and
then return to double cell status as part of his
treatment plan.

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Compl. Ex. A-2

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Plaintiff then filed an administrative health care
appeal requesting that, among other things, he be
diagnosed as suffering from PTSD with panic attacks and
agoraphobia, and that he be single celled permanently
with yearly checkups and monthly counseling. On January
12, 2009 he was interviewed by CTF psychiatrist Dr.
Hutchinson, who prepared a lengthy evaluation of his
mental health history and diagnosed him as suffering
from panic disorder with agoraphobia “in partial
remission,” PTSD and depressive disorder. Compl. Ex. A9. Dr. Hutchinson concluded the evaluation by stating
that Plaintiff “appears to have significant PTSD + panic
attacks that are made worse by double cell situation.”
Id. In response to Plaintiff’s administrative appeal,
Dr. Hutchinson and Dr. Zika granted his diagnostic
request and partially granted his celling request, as
follows:

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You are currently assigned to single cell until
03/31/09. A decision then will be made about
extension at that time and will be reviewed every
six months.

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Compl. Ex. A-3.

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Plaintiff filed a second level appeal which, on
February 4,2009, Dr. Zika reviewed and responded to as
follows:

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Dr. Hutchinson agreed that you meet the criteria to
be diagnosed with Post Traumatic Stress Disorder
and Panic Disorder. He has recommended that you be
considered for single cell status, in part, based
upon this diagnosis. He, therefore, referred you
to another Special IDTT that will look at extending
your single cell status beyond 03/31/09. This must
be done in a Special IDTT meeting, since it is a
program change and all program changes must go
through a Special IDTT, according to our Program
Guide. If you are granted an extension of the
single cell status, it can be made for up to one
year. It can be re-evaluated after one year for a
subsequent year, and so forth. A new chrono would
be written at that time.

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United States District Court
For the Northern District of California 

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It should also be made clear that no one is
recommending “exposure therapy” for either Post
Traumatic Stress Disorder or Panic Disorder.
However, your case manager (psychologist) and your
psychiatrist can work with you, using a variety of
treatments, to help you manage your stress and
anxiety more effectively. This is done on a
voluntary treatment basis, and cannot be given
without your consent (unless you are a danger to
yourself, a danger to others, or gravely disabled).
We are required by law to follow this mandate.

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I hope that this clarifies the situation for you
and that your mental health clinicians can help you
better manage your stress and anxiety.

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Compl. Ex. A-11.

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On March 19, 2009, the IDTT, which included Dr.
Zika, recommended that Plaintiff’s single cell status be
continued for one year, “based on mental health
condition.” Compl. Ex. A-12.

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On March 25, 2010, the IDTT, which included
Plaintiff’s psychologist, Defendant Dr. Garbarino,
recommended that Plaintiff’s single cell status be
continued for another year, “based on mental health
condition.” Compl. Ex. A-25.

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In March 2011, Dr. Garbarino met with Plaintiff to
discuss his upcoming IDTT meeting to determine whether
his single cell status would be continued. She told him
that Dr. Zika no longer would recommend extending his
single cell status because of pressure from custody
staff, and that being double celled would force him to
participate in exposure therapy. Compl. at 12:22-13:14.

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Plaintiff filed an administrative appeal, asking
that his single cell status be extended. Defs.’ Ex. A3. Before he received a response, his scheduled IDTT
meeting was held on March 28, 2011. At the meeting,
Plaintiff argued to Dr. Zika that returning him to a
double cell would seriously harm his mental health.
Although Dr. Garbarino initially recommended that
Plaintiff be single celled for another year, the IDTT,
which consisted of Dr. Zika and Dr. Garbarino,
recommended to custody staff that Plaintiff’s request be
denied, and that he receive “treatment for
PTSD/Exposure/medical intervention.” Compl. Ex. A-27.

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On April 5, 2011, Dr. Zika responded to Plaintiff’s
administrative appeal. The decision was also signed by
G. Ellis, Chief Executive Officer. In the response, Dr.
Zika clarified for Plaintiff that only the IDTT could
recommend single cell status. He also summarized what
had occurred at the IDTT meeting, as follows:

United States District Court
For the Northern District of California 

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. . . The Treatment Team was patient in
letting you present your case for extension of your
single cell status. The IDTT also offered you
alternatives, such as living on a Sensitive Needs
Yard and taking psychotropic medication that can
help with your symptoms of anxiety.

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You refused to accept any of those alternatives.
Since you do not suffer from a major mental illness
and there are other ways to treat your mental
health symptoms that do not require living in a
single cell situation, the IDTT did not recommend
an extension of your single cell living situation
on mental health grounds. Your Primary Clinician
is still happy to work with you to manage your
symptoms through psychotherapy, which can lead to
cognitive, behavioral, and emotional change. A
Psychiatrist can also work with you by reviewing
psychotropic medications that can help manage your
symptoms.

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Defs.’ Ex. A-9.

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On April 6, 2011, Plaintiff was returned to a
double cell with a cellmate. Compl. at 8:12-16.

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On April 27, 2011, Plaintiff was seen by his
primary care physician, Dr. Kohler, who noted that since
being returned to a double cell Plaintiff was unable to
sleep more than two hours per night, his asthma was
exacerbated due to the lack of sleep, he was suffering
chest pain resulting from increased asthma inhaler use,
and he was suffering from continued migraine cluster
headaches and sleep apnea. In evaluating Plaintiff’s
medical condition, Dr. Kohler reached the following
conclusion about his need to be single celled:

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PTSD - pt has been attacked in his cell and his
commitment offense makes him vulnerable to further
violence. Has been single celled since 10/2008 and
was recently given a cellie. Housing with a cellie
is not therapeutic but poses real threat to the
patient of violence, worsening mental health, and
physical health consequences. Single cell status
is needed for his protection and to maintain stable
mental health and physical health.

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Compl. Ex. A-21.

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On May 11, 2011, Plaintiff’s administrative
grievance was denied at the second level of review. The
response was prepared and signed by Dr. Zika and G.
Ellis, the same two individuals who denied the response
at the first level of review. In addition to the
information Dr. Zika had provided in the first level
response, he included the following in the second level
response:

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United States District Court
For the Northern District of California 

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. . . The members of the IDTT offered you a
number of alternatives to help you with your mental
health symptoms. You were offered support for
living on a Sensitive Needs Yard. This would give
you a more protective environment and be less
stressful. You were also offered an appointment
with a psychiatrist to review possible psychotropic
medications that can help manage your mental health
symptoms. Your primary clinician (Dr. Garbarino,
psychologist) was also part of the IDTT and she
offered to continue treating you, using
recognized treatment approaches to help you manage
your mental health symptoms. You have refused
these alternatives, saying they are not helpful to
you. If your functioning was so impaired that you
couldn’t live in a General Population environment,
we could recommend a change in level of care to
Enhanced Outpatient Program from CCCMS
{Correctional Clinical Case Management System].
However, your Global Assessment of Functioning
(GAF) is too high and you are functioning at too
high a level to indicate going to an E.O.P. living
environment. With all of this in mind, we still
believe that treatment of your symptoms, so that
you can manage your condition more successfully, is
the best approach. Living in a single cell would
not, in our opinion, lead to an improvement in your
condition in the long run. It would be similar to
a person with panic and agoraphobia never leaving
their home in order to manage their symptoms. This
would not lead to an improvement in their
condition, but would lead to reinforcing their
panic and agoraphobia. Your Primary Clinician, Dr.
Garbarino, is still happy to work with you so that
you can improve and manage your symptoms more

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effectively. I hope that you will work with her
toward this goal.

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Defs.’ Ex. A-7.

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In May 2011, Plaintiff relayed Dr. Kohler’s
evaluation to Dr. Zika and Dr. Garbarino. Both
responded that, regardless of what Plaintiff’s doctor
opined, they would not recommend single cell status for
him. Compl. at 10:6-12, 16:28-17:6.

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Plaintiff saw Dr. Garbarino on September 14, 2011,
at which time he informed her that, because he was
double celled, his migraine headaches were more frequent
and his medication had been changed to a stronger
prescription, his asthma was exacerbated, and he was now
prescribed two inhalers, one of which is a steroid.
Compl. at 17:26-18:13 & Ex. A-24.

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United States District Court
For the Northern District of California 

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On October 12, 2011, Plaintiff’s administrative
appeal was denied at the third level of review. Dr.
L.D. Zamora, Chief of California Correctional Health
Care Services, concluded that, based on a review of
Plaintiff’s appeal file, he had received adequate mental
health care. Dr. Zamora also reiterated that mental
health staff does not have the authority to write a
chrono for single cell status, but can only recommend
single cell status for mental health concerns. Defs.’
Ex. A-2.

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On October 20, 2011, Plaintiff again saw Dr.
Garbarino to request single cell status; she informed
him that he was wasting his time and she would not
recommend such status. Compl. at 18:18-19:4.

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On February 15, 2012, Dr. Kohler re-evaluated
Plaintiff and made the following assessment: “Sleep
deprivation related to concern re potential assault. Pt
becoming increasingly agitated.” Reply Ex. A-4. She
also noted that it was difficult to assess whether
Plaintiff’s asthma symptoms “are related to bronchospasm
vs panic.” Id.

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On February 6, 2012, Plaintiff filed another
administrative appeal requesting single cell status.
Dr. Zika responded to the appeal on February 22, 2012.
He granted Plaintiff’s request to schedule an IDTT
meeting to discuss a recommendation for single cell
status. He denied Plaintiff’s request that a case
manager, rather than the IDTT, have authority to
recommend single cell status, and that his serious
mental disorders be recognized as a disability under the
ADA. He stated, however, that the ADA request was
partially granted because “mental health staff have
already placed you into the Mental Health Service
Delivery System for treatment of a mental disorder that

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is significantly impairing your functioning.”
A-5.

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An IDTT meeting was held on March 20, 2012, at
which Plaintiff told Dr. Zika and Dr. Garbarino that
because he still fears being assaulted by his cellmate
he is not getting more than three and one-half hours of
sleep per night, is having multiple asthma attacks, is
unable to use his C-pap machine for sleep apnea because
of severe panic attacks, and is waking up at least four
times a week choking and gasping for air. Dr. Zika and
Dr. Garbarino denied Plaintiff’s request to recommend
single cell status. Pl.’s Decl. Supp. Reply (Decl.) at
1:26-3:2.

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United States District Court
For the Northern District of California 

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On July 3, 2012, Plaintiff went to his annual IDTT
hearing, at which Dr. Zika and custody staff were
present. He requested a different case manager, because
his present case manager is “trying to force [him] to
use cognitive therapy in a double-cell situation which
previously proved ineffective and painful.” Decl. at
3:10-13. Dr. Zika told Plaintiff it doesn't matter who
his case manager is because he will be provided only
with cognitive therapy treatment, and if he will not
accept cognitive therapy treatment then Dr. Zika wants
him “out” of the CCCMS program. Decl. at 3:3-21.

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As of July 8, 2012, the date on which Plaintiff
signed his declaration in support of his reply,
Plaintiff still was experiencing all of the ailments
described in Dr. Kohler’s progress notes and continues
to fear he will be killed by another inmate while double
celled. Decl. at 3:22-4:5.

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Docket no. 24 at 4:2-13:5.

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Reply Ex.

DISCUSSION
I.

Defendants’ Motion for Summary Judgment

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A.

Legal Standard

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Summary judgment is only proper where the pleadings,

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discovery and affidavits show there is “no genuine issue as to any

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material fact and that the moving party is entitled to judgment as

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a matter of law.”

Fed. R. Civ. P. 56(c).

Material facts are

those that may affect the outcome of the case.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute as to a

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material fact is genuine if the evidence is such that a reasonable

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jury could return a verdict for the nonmoving party.

Id.

The court will grant summary judgment “against a party who

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fails to make a showing sufficient to establish the existence of

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an element essential to that party’s case, and on which that party

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will bear the burden of proof at trial.”

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Catrett, 477 U.S. 317, 322-23 (1986).

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initial burden of identifying those portions of the record that

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United States District Court
For the Northern District of California 

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demonstrate the absence of a genuine issue of material fact.

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burden then shifts to the nonmoving party to “go beyond the

Celotex Corp. v.

The moving party bears the

The

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pleadings, and by his own affidavits, or by the ‘depositions,

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answers to interrogatories, or admissions on file,’ designate

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‘specific facts showing that there is a genuine issue for trial.’”

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Id. at 324 (citing Fed. R. Civ. P. 56(e)).
In considering a motion for summary judgment, the court must

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view the evidence in the light most favorable to the nonmoving

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party.

See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir.

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1999).

The court’s function on a summary judgment motion is not

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to make credibility determinations or weigh conflicting evidence

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with respect to a disputed material fact.

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

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1987).

See T.W. Elec. Serv. v.

A district court may consider only admissible evidence in

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ruling on a motion for summary judgment.

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56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

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A verified complaint may be used as an opposing affidavit under

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Rule 56, as long as it is based on personal knowledge and sets

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forth specific facts admissible in evidence.

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McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995).
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See Fed. R. Civ. P.

See Schroeder v.

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B.

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Deliberate indifference to serious medical needs violates the

Deliberate Indifference Standard

Eighth Amendment’s proscription against cruel and unusual

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punishment.

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled

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on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133,

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1136 (9th Cir. 1997) (en banc).

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United States District Court
For the Northern District of California 

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serious mental health needs.

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F.3d 540, 546 (9th Cir. 1994).

See Estelle v. Gamble, 429 U.S. 97, 104 (1976);

Serious medical needs include

See Doty v. County of Lassen, 37
A determination of “deliberate

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indifference” involves an examination of two elements: the

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seriousness of the prisoner’s medical need, and the nature of the

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defendant’s response to that need.

McGuckin, 974 F.2d at 1059.

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A serious medical need exists if the failure to treat a

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prisoner’s condition could result in further significant injury or

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the unnecessary and wanton infliction of pain.

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of an injury that a reasonable doctor or patient would find

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important and worthy of comment or treatment, the presence of a

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medical condition that significantly affects an individual’s daily

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activities, or the existence of chronic and substantial pain are

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examples of indications that a prisoner has a serious need for

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medical treatment.

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Id.

The existence

Id. at 1059-60.

A prison official is deliberately indifferent if he knows

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that a prisoner faces a substantial risk of serious harm and

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disregards that risk by failing to take reasonable steps to abate

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it.

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official must not only “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists,”

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but he “must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Id.

The prison

In order for

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deliberate indifference to be established, therefore, there must

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be a purposeful act or failure to act on the part of the defendant

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and resulting harm.

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See McGuckin, 974 F.2d at 1060.

Deliberate indifference may be shown when prison officials
deny, delay or intentionally interfere with medical treatment, or

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it may be shown in the way in which they provide medical care.

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See id. at 1062.

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United States District Court
For the Northern District of California 

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prisoner-patient and prison medical authorities regarding

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treatment nor a showing of nothing more than a difference of

But neither a difference of opinion between a

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medical opinion as to the need to pursue one course of treatment

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over another is sufficient to establish deliberate indifference.

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See Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004).

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order to prevail on a claim involving choices between alternative

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courses of treatment, a plaintiff must show that the course of

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treatment the doctors chose was medically unacceptable under the

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circumstances, and that they chose this course in conscious

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disregard of an excessive risk to the plaintiff’s health.

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1058.

In

Id. at

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C.

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Plaintiff claims that Defendants’ refusal, in 2011, to

Analysis

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recommend that he continue to be single celled amounted to

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deliberate indifference to his serious mental health and medical

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needs.

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1.

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Defendants’ Evidence

Defendants do not dispute that Plaintiff has serious mental

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health and medical needs.

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on the ground that he cannot show that they acted with deliberate

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indifference because their revised recommendation that he no

Instead, they move for summary judgment

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longer be single celled is based on their considered evaluation of

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his mental health needs and his objections thereto amount to

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nothing more than a difference of opinion from that of his mental

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health care providers.

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although they previously diagnosed Plaintiff with PTSD and

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determined that he required single cell housing for that reason,

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they subsequently determined that he does not have PTSD and,

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United States District Court
For the Northern District of California 

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consequently, their treatment plan has changed.

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Defendants maintain that Plaintiff has more generalized panic

In particular, Defendants assert that,

Specifically,

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attacks and anxiety, which conditions are most amenable to being

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treated by, among other things, housing him with a cellmate.

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Defendants present the following evidence in support of their

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argument.

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into CDCR’s mental health delivery system, evaluated and diagnosed

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his condition, and developed a treatment plan that focused on

16

having him address and control his anxiety disorder.

17

Zika Supp. Mot. Summ. J. (“Zika Decl.”) ¶ 4.

18

Plaintiff was diagnosed by mental health staff with Panic Disorder

19

Without Agoraphobia, a condition which includes sudden, intense,

20

and brief anxiety, but without avoidance, related to open spaces

21

or any place outside of one’s home or a safe zone.

22

Following this diagnosis, mental health staff recommended to CTF

23

custody staff that Plaintiff be placed in single cell housing for

24

a short duration.

25

In 2008, CTF mental health staff accepted Plaintiff

Decl. B.

In October 2008,

Id. ¶ 5.

Id.

In February 2009, Plaintiff’s mental condition was reassessed

26

and clinical staff diagnosed him with PTSD and Panic Attacks with

27

Agoraphobia, stemming from an incident that occurred in 2003.

28

Zika Decl. ¶ 8.

According to a 2004 confidential memorandum in
13  

1

Plaintiff’s central file, the incident involved physical pushing

2

and shoving between Plaintiff and his former cellmate after the

3

cellmate found some of Plaintiff’s legal paperwork.

4

Supp. Reply ¶ 5.

5

Zika Decl.

PTSD is classified as an anxiety disorder, characterized by
adverse anxiety-related experiences, behaviors, and physiological

7

responses that develop after exposure to a psychologically

8
United States District Court
For the Northern District of California 

6

traumatic event, sometimes referred to as a “triggering event.”

9

Zika Decl. ¶ 8.

At regular intervals after diagnosing Plaintiff

10

with PTSD, mental health staff recommended extending his single

11

cell status as he worked on his panic symptoms, with the intention

12

that he eventually be returned to double cell housing.

13

Id.

Plaintiff began seeing Defendant Dr. Garbarino, a staff

14

psychologist, in March 2010.

15

met with him at least twenty-one times concerning his anxiety

16

disorder.

17

of this treatment, Dr. Garbarino assessed him with significant

18

PTSD and panic attacks, and developed a treatment plan that

19

included helping him to identify triggers to increased anxiety,

20

depression and hopelessness; establish rapport and trust to

21

provide appropriate and constructive communication of moods;

22

address triggers to trauma and engage in proactive relaxation

23

techniques.

24

request for single cell housing at IDTT meetings.

25

treatment progressed, however, Dr. Garbarino’s diagnosis changed

26

from PTSD to Adjustment Disorder and then Depressive Disorder, Not

27

Otherwise Specified.

28

Plaintiff’s evolving symptomology and response to treatments.

Through October 2011, Dr. Garbarino

Zika Decl. ¶ 10 & Ex. A at 245-444.

Dr. Garbarino also recommended renewal of Plaintiff’s

As his

These diagnostic changes resulted from

14  

During the course

1

Decl. J. Garbarino Supp. Mot. Summ. J. (“Garbarino Decl.”) ¶¶ 4-

2

22; Zika Decl. ¶ 10.

3

One piece of information Defendants considered when adjusting
Plaintiff’s diagnosis and treatment plan was the fact that they

5

were unable to identify a “triggering event” that led to PTSD,

6

because it appeared that his anxiety disorder more likely stemmed

7

from perceived threats by other inmates as a consequence of his

8
United States District Court
For the Northern District of California 

4

rape conviction, rather than the alleged assault that occurred in

9

2003.

This was not the only factor on which they based their

10

assessment, however.

11

that his problems were “mood and situational,” he admitted mental

12

issues with the death of his mother, disappointment in his

13

accomplishments and acceptance of his life in prison.

14

¶¶ 9-11; Garbarino Decl. ¶¶ 9-11.

15

In addition to Plaintiff’s stated beliefs

Zika Decl.

Plaintiff had been in single cell housing for two-and-one-

16

half years by March 2011, when CTF mental health staff determined

17

that his mental condition had not satisfactorily improved and

18

another treatment course was needed that did not include single

19

celling.

20

CTF staff and Defendants’ determination that his mental condition

21

did not justify continued placement in single cell housing, they

22

believed that his continued single cell housing placement could

23

actually reinforce and harden his panic disorder.

24

offered Plaintiff a variety of housing, programmatic and treatment

25

options to address and work on his anxiety disorder, but he

26

refused each, insisting that single celling is his only treatment

27

option.

28

Zika Decl. ¶ 16; Garbarino Decl. ¶ 16.

Zika Decl. ¶¶ 13-28.
2.

Plaintiff’s Opposition
15  

In addition to

Id.

Defendants

1

In opposition to Defendants’ motion for summary judgment,

2

Plaintiff argues that their refusal to renew the single cell

3

recommendation was not medically reasonable, but his opposition

4

evidence does not raise a triable issue of material fact with

5

respect to the reasonableness of Defendants’ diagnosis and

6

treatment.

7

Plaintiff argues that Defendants’ contention that he does not

United States District Court
For the Northern District of California 

8

have PTSD is not medically reasonable because they had previously

9

properly diagnosed him with PTSD, as did seven other CDCR doctors.

10

Defendants do not deny that they at one time diagnosed Plaintiff

11

with PTSD.

12

period when he was diagnosed with PTSD, he also had other

13

diagnoses that did not include PTSD.

14

2011, not only Defendants but other CTF mental health staff as

15

well have concluded that he does not have PTSD and is not entitled

16

to single cell housing for his mental health condition.

17

Decl. ¶¶ 21-27; Zika Decl. Supp. Reply ¶¶ 8-9.

18

The evidence shows, however, that, during the two-year

Additionally, since March

Zika

Plaintiff claims his PTSD diagnosis is supported by progress

19

notes written on March 14, 2011, by Dr. Burton, a psychiatrist,

20

eight days before the CTF IDTT declined to recommend him for

21

continued single cell housing.

22

telepsychiatry meeting between Dr. Burton and Plaintiff, during

23

which Dr. Burton spoke with him about his medications and concerns

24

about being single celled.

25

meeting, Dr. Burton did not diagnose Plaintiff with PTSD; rather,

26

he wrote that Plaintiff presented “with symptoms of depression,

27

panic disorder, and PTSD,” that he declined a prescription for an

28

anti-depressant to help him with his depression and anxiety, and

The notes were the product of a

In his notes memorializing the

16  

1

that he was not a danger to himself or others and was able to

2

provide for himself in a correctional setting.

3

at 363.

4

Zika Decl. Ex. A

Plaintiff also claims that his PTSD diagnosis is supported by
Dr. Kohler’s progress notes from her April 27, 2011 and February

6

15, 2012 medical appointments with him, which took place after he

7

had been returned to a double cell.

8
United States District Court
For the Northern District of California 

5

2011, Dr. Kohler recorded her medical assessment of Plaintiff’s

9

condition as “PTSD” and wrote that “[h]ousing with a cellie is not

In the notes from April 27,

10

therapeutic but poses real threat to the patient of violence,

11

worsening mental health, and physical health consequences.

12

cell status is needed for his protection and to maintain stable

13

mental health and physical health.”

14

from February 15, 2012, Dr. Kohler recorded her medical assessment

15

of Plaintiff’s condition as: “Sleep deprivation related to concern

16

re potential assault.

17

Ex. A-23.

18

Plaintiff’s asthma symptoms “are related to bronchospasm vs

19

panic.”

20

Opp’n Ex. A-14.

Single

In her notes

Pt becoming increasingly agitated.”

Opp’n

She also wrote that it was difficult to assess whether

Id.

Notwithstanding the above assessments, Dr. Kohler, in her

21

declaration in support of Defendants’ reply to Plaintiff’s

22

opposition, asserts that she is not a mental health clinician

23

qualified to make a diagnosis of PTSD and, based on her experience

24

with PTSD, she does not believe that Plaintiff has the appropriate

25

case factors to indicate that he suffers from PTSD.

26

Kohler Supp. Reply (“Kohler Decl.”) ¶ 3.

27

in her April 2011 and February 2012 medical progress notes, she

28

did not determine that Plaintiff was suffering physical harm
17  

Decl. L.

Further, she avers that,

1

because of his double-cell housing status, rather, she only

2

recorded his statements to her concerning his experience.

3

4.

4
5

Further, in response to Plaintiff’s reliance on Dr. Kohler’s
progress notes, Dr. Zika attests:

6

As a mental-health professional with nearly thirty
years of practice experience, I disagreed with Dr.
Kohler’s assessment of Plaintiff’s need for single-cell
housing. I believed that her diagnosis and plan resulted
from incomplete information provided by Plaintiff, and
lacked the professional insight that CTF mental-health
staff had concerning anxiety disorders and Plaintiff’s
particular case. Prolonged single-cell housing had not
fully addressed Plaintiff’s evolving anxiety disorders,
and I agreed with my mental-health care practitioners
that Plaintiff needed to return to a double-cell prison
environment to address his anxiety symptoms, while also
engaging in and benefitting from the many treatment
options we afforded him.

7

United States District Court
For the Northern District of California 

8
9
10
11
12
13
14

Id. ¶

Zika Decl. ¶ 20.

15

3

Based on the above, the Court finds that, even if Dr.

16

Kohler’s progress notes reflect her assessment that Plaintiff has

17

PTSD and has manifested adverse physical effects as a result of

18

being double celled, such evidence does not raise a triable issue

19

of material fact with respect to whether Defendants’ diagnosis and

20

treatment of Plaintiff was medically reasonable.

21

that Dr. Kohler is not a mental health care professional and was

22

23
24
25
26

3

It is undisputed

Plaintiff moves to strike the declarations submitted by Dr.
Kohler and Dr. Zika in support of the reply on the ground that the
statements made therein are contradicted directly by the evidence
he has presented in support of his opposition to the motion for
summary judgment. The motion is DENIED. The declarations are
evidence the Court may consider in support of Defendants’ motion.
Plaintiff’s request that he be granted leave for his motion to
exceed the applicable page limit is GRANTED.

27
28
18  

1

not responsible for diagnosing or treating Plaintiff’s mental

2

health needs.

3

Defendants are responsible for making such assessments and are not

4

bound by Dr. Kohler’s medical opinion about Plaintiff’s mental

5

health treatment.

Additionally, the undisputed evidence shows that

Plaintiff further claims that Dr. Bright, with whom he

7

consulted about his request for a single cell as an accommodation

8
United States District Court
For the Northern District of California 

6

under the Americans with Disabilities Act, diagnosed him with

9

PTSD.

The record shows, however, that Dr. Bright is not a mental

10

health professional and assessed Plaintiff based on his subjective

11

description of Plaintiff's mental health needs and medical

12

records.

13

request, Dr. Bright concluded: "The patient has no medical

14

indication for being single cell housed.

15

cell] is a psychiatric evaluation and diagnosis.

16

instructed to follow this up with Psychiatry."

17

Zika Decl. Ex. A at 422-23.

After reviewing Plaintiff’s

[His need for a single
He was

Id. at 423.

Plaintiff maintains that the treatment plans chosen by

18

Defendants are medically unacceptable.

19

presented evidence that raises a triable issue of material fact in

20

this regard.

21

treatment options offered by CTF mental health staff other than

22

being single celled, including further therapy sessions, Special

23

Needs Yard housing and medications.

24

27; Decl. K. Lewis Supp. Reply (“Lewis Decl.”) Ex. B,

25

Response to Request for Admission No. 6.

26

many of these treatment options were ineffective and caused him to

27

be single celled in 2008, there is no medical support in the

28

record for this assertion.

The evidence is undisputed that he has refused all

Zika Decl. ¶¶ 17, 22, 23, 26,
Pl.’s

While he claims that

To the contrary, the record shows that
19  

However, he has not

1

some of the anxiety-management techniques that Dr. Garbarino

2

recommended have helped Plaintiff bring his panic symptoms under

3

control, Garbarino Decl. ¶ 5-6, and that he has been treated with

4

only one drug (Celexa, an antidepressant) and has refused to try

5

any of the myriad other drug options that Defendants attest are

6

available to treat anxiety disorders.

7

Zika Decl. Supp. Reply ¶ 3.

Further, Plaintiff’s objection that placement on a Special

United States District Court
For the Northern District of California 

8

Needs Yard is medically unreasonable because he will still be in

9

fear of the violent inmates housed there is unsubstantiated

10

because he has presented no evidence that he has ever lived on

11

such a yard or that sex offender inmates are targeted for assault

12

on those yards.

13

assaulted or threatened by his cellmate between April 2011, when

14

he was moved to double cell housing, and October 3, 2012, when he

15

was returned to a single cell after the Court granted his request

16

for a preliminary injunction.

17

to Request for Admission No. 5.

18

Moreover, the evidence shows that he was not

Lewis Decl. Ex. B, Pl.’s Response

Finally, Plaintiff claims that Defendants have acted with

19

deliberate indifference because they changed their diagnosis of

20

his condition and prescribed treatment in response to pressure

21

from custody staff to house him in a double cell.

22

any such pressure and attest that custody concerns have no role in

23

the IDTT’s recommendations regarding housing for mental health

24

program inmates; the only reason they refused to recommend

25

Plaintiff for single cell housing was because, in their clinical

26

opinions, it was not needed for his anxiety condition.

27

¶ 18; Garbarino Decl. ¶ 15.

28

acknowledged, custody staff make the final decisions on inmate

Zika Decl.

Further, as Plaintiff has

20  

Defendants deny

1

housing issues and can disregard any IDTT recommendation.

2

the evidence supports the reasonable inference that custody staff

3

would have no reason to pressure mental health staff about making

4

any particular recommendation.

5

3.

6

Thus,

Findings

As discussed above, deliberate indifference is not
established simply by a difference of opinion between a prisoner-

8
United States District Court
For the Northern District of California 

7

patient and prison medical authorities regarding treatment.

9

Franklin, 662 F.2d at 1344.

See

In order to prevail on a claim

10

involving choices between alternative courses of treatment, a

11

plaintiff must show that the course of treatment the doctors chose

12

was medically unacceptable under the circumstances, and that they

13

chose this course in conscious disregard of an excessive risk to

14

the plaintiff’s health.

Toguchi, 391 F.3d at 1058.

15

Having reviewed the parties’ evidence and arguments, the

16

Court finds that Plaintiff has not raised a genuine issue for

17

trial with respect to whether Defendants acted with deliberate

18

indifference to his serious medical and mental health needs.

19

Although Plaintiff disagrees with Defendants' diagnosis of, and

20

treatment plan for, his anxiety disorder, the record evidence

21

shows that over a course of several years Defendants have made

22

reasonable attempts to attend to his mental health needs and the

23

physical manifestations resulting therefrom.

24

record shows that Defendants’ diagnoses and recommended treatments

25

have evolved over time based on their considered evaluation of his

26

symptoms and responses to treatment.

27
28

In particular, the

In sum, Plaintiff has not presented evidence which shows that
Defendants’ care has been medically unacceptable, Toguchi, 391
21  

1

F.3d at 1058, or that they have acted with a “sufficiently

2

culpable state of mind” to establish deliberate indifference to

3

his serious mental health and medical needs.

4

at 847.

5

GRANTED and Plaintiff’s motion to renew the preliminary injunction

6

is DENIED.4

7

II.

United States District Court
For the Northern District of California 

8

See Farmer, 511 U.S.

Accordingly, Defendants’ motion for summary judgment is

Pending Class Action
Defendants argue that Plaintiff is precluded from seeking

9

injunctive relief by the currently pending class actions Coleman

10

v. Brown, et al., No. S 90-0520 LKK-JFM (E.D. Cal.), and Plata v.

11

Brown, No. 01-cv-01351 TEH (N.D. Cal.).

12

argument in its order granting Plaintiff’s request for preliminary

13

injunctive relief.

14

grounds in the present motion that persuade the Court to rule

15

otherwise.

16

prisoners who are members of the Plata class action seeking

17

systemic medical injunctive relief may proceed with individual

18

claims for medical treatment that pertain solely to their own

19

individual care.

20

Cir. 2013).

21

on this ground is not well-taken.

22

III. Qualified Immunity

23

The Court rejected this

Defendants do not assert new or different

Additionally, the Ninth Circuit recently held that

See Pride v. Correa, 719 F.3d 1130, 1137-38 (9th

Accordingly, Defendants’ motion for summary judgment

Defendants argue that they are entitled to qualified

24
25

4

26
27

Defendants’ motion for reconsideration of the order
granting Plaintiff’s first request to renew the preliminary
injunction is DENIED as moot, as is Plaintiff’s motion to dismiss
that motion.

28
22  

1

immunity.

2

and money damages.

3

suit for money damages, and does not provide immunity from a suit

4

seeking declaratory or injunctive relief.”

5

F.3d 937, 939-40 (9th Cir. 2012).

6

entitled to qualified immunity on Plaintiff’s injunctive relief

7

claims.

United States District Court
For the Northern District of California 

8

In this case, Plaintiff seeks both injunctive relief
“Qualified immunity is only an immunity from

Hydrick v. Hunter, 669

Accordingly, Defendants are not

With respect to Plaintiff’s damages claims, the defense of

9

qualified immunity protects “government officials . . . from

10

liability for civil damages insofar as their conduct does not

11

violate clearly established statutory or constitutional rights of

12

which a reasonable person would have known.”

13

Fitzgerald, 457 U.S. 800, 818 (1982).

14

of qualified immunity must determine whether the plaintiff has

15

alleged the deprivation of an actual constitutional right and

16

whether the right was clearly established, such that it would be

17

clear to a reasonable officer that his conduct was unlawful in the

18

situation he confronted.

19

236 (2009).

Harlow v.

A court considering a claim

See Pearson v. Callahan, 555 U.S. 223,

20

On the facts presented herein, viewed in the light most

21

favorable to Plaintiff, Defendants prevail as a matter of law on

22

their qualified immunity defense because the record establishes no

23

constitutional violation.

24

occur, however, Defendants reasonably could have believed their

25

conduct was lawful.

26

Defendants that they failed to take reasonable steps to abate a

27

substantial risk of harm to Plaintiff by providing him with the

28

above-described care and treatment for his serious mental health

Even if a constitutional violation did

Specifically, it would not have been clear to

23  

1

and medical needs, notwithstanding their refusal to renew their

2

recommendation that he be single celled.

3

are entitled to qualified immunity and their motion for summary

4

judgment is GRANTED for this reason as well.

5

IV.

6

Accordingly, Defendants

Plaintiff’s Cross-Motion for Summary Judgment
Plaintiff has filed a cross-motion for summary judgment in

which he argues that he is entitled to a favorable judgment on his

8
United States District Court
For the Northern District of California 

7

claims as a matter of law.

9

for summary judgment, the district court must consider all of the

10

evidence submitted in support of both motions to evaluate whether

11

a genuine issue of material fact exists precluding summary

12

judgment for either party.

13

County, Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir.

14

2001).

15

When the parties file cross-motions

The Fair Housing Council of Riverside

In considering Plaintiff’s cross-motion, the Court regards as

16

true Defendants’ version of the evidence and draws all reasonable

17

inferences in favor of them.

18

that he is entitled to judgment as a matter of law, Plaintiff must

19

establish there is an absence of a genuine issue of material fact

20

and that he has made a showing sufficient to establish the

21

existence of the elements essential to his case.

Celotex, 477 U.S. at 324.

To show

Id. at 322-23.

22

Under Defendants’ version of the facts discussed above,

23

Plaintiff has not made a showing sufficient to establish that they

24

acted with deliberate indifference to his serious mental health

25

and medical needs by refusing to renew the recommendation that he

26

be single celled.

27

summary judgment is DENIED.

28

Accordingly, Plaintiff’s cross-motion for

CONCLUSION
24  

1

For the foregoing reasons, the Court orders as follows:

2

1.

Defendants’ motion for summary judgment is GRANTED.

3

Docket no. 18.

4

Defendants and against Plaintiff.

5

2.

Judgment shall be entered in favor of all

Plaintiff’s motion to strike Defendants’ reply evidence

6

is DENIED; his request to exceed the applicable page limit of the

7

motion to strike is GRANTED.

United States District Court
For the Northern District of California 

8
9

3.

Docket no. 45.

Plaintiff’s cross-motion for summary judgment is DENIED.

Docket no. 35.

10

4.

Plaintiff’s motion to renew the preliminary injunction

11

for an additional ninety days from the date of this Order is

12

DENIED.

13

5.

Docket no. 59.
Defendants’ motion to file a motion for reconsideration

14

of the Court’s order renewing the preliminary injunction is

15

DENIED.

16

6.

17

22

Docket no. 47.

The Clerk of the Court shall enter judgment and close the
file.

20
21

Plaintiff’s motion to dismiss Defendants’ motion to file

a motion for reconsideration is DENIED.

18
19

Docket no. 43.

This Order terminates Docket nos. 18, 35, 43, 45, 47 and 59.
IT IS SO ORDERED.
Dated: 8/27/2013
CLAUDIA WILKEN
United States District Judge

23
24
25
26
27
28

25