United States District Court, N.D. California
August 9, 2004.
DARRYL WAKEFIELD, Plaintiff,
RONALD BORTMAN; et al., Defendants.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
Defendants are entitled to judgment as a matter of law on their
defense of qualified immunity against plaintiff's complaint.
Judgment is entered in favor of defendants and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Darryl Wakefield, an inmate at the California State Prison in
Corcoran, filed this pro se civil rights action under
42 U.S.C. § 1983 complaining that doctors at Pelican Bay State
Prison improperly medicated him while he was in custody there.
Defendants now move for summary judgment on the ground that the
undisputed facts show that they are entitled to qualified
immunity against Wakefield's claims. For the reasons discussed
below, the motion for summary judgment will be granted.
This action concerns the administration of psychotropic
medications to Wakefield for an eight-day period in July 2000.
Unless otherwise noted, the following facts are undisputed.
At the relevant time, Wakefield was an inmate at Pelican Bay
State Prison and defendants Ronald Bortman and John Douglas were
staff psychiatrists at Pelican Bay. The duties for Dr. Bortman and Dr. Douglas included treatment of inmates at the
Pelican Bay infirmary, management of all the acute care patients,
and administration of involuntary medications.
Under California law, state prisoners cannot be involuntarily
medicated unless Keyhea provisions are followed.*fn1 The
Keyhea procedures are set out in the October 31, 1986 Order
Granting Plaintiffs' Motion For Clarification And Modification of
Injunction And Permanent Injunction filed in Keyhea v. Rushen,
Solano County Superior Court Case No. 67432. See Defendants'
Exh. A. The Keyhea injunction provides procedural requirements
and substantive standards for medication of different durations.
An individual may not be involuntarily medicated in excess of
three days unless the individual is provided with one set of
procedural protections, an individual may not be involuntarily
medicated in excess of ten days unless the individual is provided
with another set of procedural protections, and an individual may
not be involuntarily medicated in excess of 24 days unless the
individual is provided with another set of procedural
protections; all the procedural protections are described in the
injunction. See Keyhea injunction, p. 2.
The Keyhea injunction does not prohibit the emergency
administration of antipsychotic medication. Keyhea injunction,
p. 22. "An emergency exists when there is a sudden marked change
in the prisoner's condition so that action is immediately
necessary for the preservation of life or the prevention of
serious bodily harm to the patient or others, and it is
impracticable to first obtain consent. If antipsychotic
medication is administered during an emergency, such medication
shall be only that which is required to treat the emergency
condition and shall be provided in ways that are least
restrictive of the personal liberty of the patient." Id.
Plaintiff does not dispute defendants' recitation of the
requirements of the Keyhea injunction for the procedures to
certify an inmate for involuntary medication longer than for 72
hours, which the court repeats here. First, a certification
hearing must be held within ten days of the initial involuntary
medication. Second, a notice of certification must be signed by
two people: a psychiatrist or licensed psychologist and the physician
or psychologist who participated in the evaluation. This notice
must be given to the inmate within five days of the initial
involuntary medication. Third, the inmate must be informed that
he is entitled to a certification review hearing, must be given
assistance in preparation for the hearing and must be given an
opportunity to present evidence at the hearing. If the
certification hearing officer finds that the inmate is a danger
to himself or others as a result of his mental condition and the
inmate still refuses medication, he may be involuntarily
medicated for up to 21 days. The inmate must receive written
notification of the decision which includes a statement of the
evidence relied on in the decision. (There are additional
procedures for longer medication terms, but they are not relevant
to this action.)
Wakefield was involuntarily medicated from July 23, 2000
through July 31, 2000 with the antipsychotics olanzapine and
haloperidol. The notice of certification for involuntary
medication was signed by Dr. Bortman on July 23, 2000, as the
evaluating physician, and was signed by Dr. Douglas on July 24,
2000, as the chief psychiatrist or his designee. On the notice of
certification, Dr. Bortman checked the boxes that Wakefield was a
"danger to others" and "[g]ravely disabled in that the inmate is
unable to use the elements of life that are essential to health
safety including food, clothing and shelter, even though provided
to the inmate by others." Watkins Decl., Exh. A. In the portion
of the form that was for the facts that formed the basis of the
allegation, Dr. Bortman wrote, "inmate defecated on floor,
threatened to gas staff, loud threatening to fight COs and M.D.
Smeared cell window. He is mentally ill and he refuses
medication." Id.. The form stated that the inmate had been
notified of the evaluation and had been advised of but unable or
unwilling to accept mediation on a voluntary basis. Dr. Bortman
and Dr. Douglas signed off on the form that they "certify this
inmate to receive involuntary medication related to the mental
disorder for no more than twenty-one (21) days beginning the 23
day of July 2000 at 1515." Id. On the form a third party wrote
that she delivered the notice of certification to Wakefield on
July 24, 2000. Dr. Bortman wrote the following in his treatment notes for
Wakefield on July 25, 2000:
The patient was admitted out of the SHU unit after he
apparently told custody that he was "suicidal." A
review of his record and interview of the patient
revealed repeated history of outbursts and apparent
loss of control that recently have seemed to be
escalating. A review of his record and assessment by
SHU Staff felt that there may be some more
significant underlying psychiatric problem than
adjustment difficulties and the patient was referred
to the infirmary because of his suicide statement and
for further evaluation. On arrival at the Infirmary
the patient varied in presentation from calm to
agitated. He at times would be very loud and
demanding and at other times would be quiet and
complaint. Initially, the patient seemed to present
no difficulties regarding his behavior other than the
aforementioned occasional loud verbal exchanges.
However he became increasingly agitated and angry and
began threatening staff. At one point he threatened
to strangle a female custody officer; at another
point he defecated on the floor and threatened to
throw feces at staff. At that point it was felt that
his behavior had reached uncontrolled levels and that
he required intervention including restraints and
medication. The patient refused to cooperate. He
required extraction and he was placed in restraints.
He was placed on a KEYHEA for danger to others and
grave disability and was started on medications.
Bortman Decl., Exh. A.
Wakefield claims that the factual basis for Dr. Bortman's
evaluation in the notice of certification was false. Wakefield
stated: "I `never' threatened to gas and fight any officer on
July 23, 2000. I `never' defecated on the floor, `never' smeared
feces on the cell window." Wakefield Decl., ¶ 3. He also states
that defendant Bortman used racial slurs and unidentified
defamatory language against him. Id. at ¶ 6.
A hearing on the medication was held on July 31, 2000, and the
hearing officer, a licensed social worker, checked the box on the
hearing decision form stating that the "criteria for involuntary
medication have not been met." Watkins Decl., Exh. B. The hearing
officer wrote, "Reviewed records. Interviewed inmate,
psychiatrist & staff. Records do not support involuntary
medication request." Id. The involuntary medication was
terminated on July 31 and the hearing decision form was issued to
Wakefield has been involuntarily medicated on a long-term basis
several times since the hearing at issue in this case. He was
placed on involuntary medication on July 26, 2001 and the order
was upheld in a hearing before the Office of Administrative
Hearings For The State Of California. That independent tribunal
ordered that psychotropic medication could be involuntarily
administered to Wakefield for a one-year period starting
September 11, 2001. Watkins Decl., Exh. C. The same tribunal
later issued orders for another year of involuntary medication starting in September 2002 and another year starting
in September 2003. Id.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California because
the events or omissions giving rise to the claims occurred at
Pelican Bay State Prison in Del Norte County, which is located
within the Northern District. See 28 U.S.C. § 84, 1391(b).
This Court has federal question jurisdiction over this action
brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is proper where the pleadings, discovery and
affidavits show that there is "no genuine issue as to any
material fact and [that] the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). A court will grant
summary judgment "against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial . . . since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if
it might affect the outcome of the lawsuit under governing law,
and a dispute about such a material fact is genuine "if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Generally, when a party challenges the merits of the opponent's
claim, the moving party bears the initial burden of identifying
those portions of the record which demonstrate the absence of a
genuine issue of material fact. The burden then shifts to the
nonmoving party to "go beyond the pleadings, and by his own
affidavits, or by the `depositions, answers to interrogatories,
or admissions on file,' designate `specific facts showing that
there is a genuine issue for trial.'" Celotex, 477 U.S. at 324
Where, as is the situation with defendants' qualified immunity
defense, the moving party bears the burden of proof at trial and
must come forward with evidence which would entitle the defendant to a directed verdict if the evidence went
uncontroverted at trial. See Houghton v. Smith,
965 F.2d 1532, 1536 (9th Cir. 1992). A defendant must establish the
absence of a genuine issue of fact on each issue material to the
affirmative defense. Id. at 1537; see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 248. When the defendant-movant
has come forward with this evidence, the burden shifts to the
non-movant to set forth specific facts showing the existence of a
genuine issue of fact on the defense.
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 v.
McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir. 1995) (treating
plaintiff's verified complaint as opposing affidavit where, even
though verification not in conformity with 28 U.S.C. § 1746,
plaintiff stated under penalty of perjury that contents were true
and correct, and allegations were not based purely on his belief
but on his personal knowledge).
The court's function on a summary judgment motion is not to
make credibility determinations or weigh conflicting evidence
with respect to a disputed material fact. See T.W. Elec. Serv.
v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987). The evidence must be viewed in the light most favorable to
the nonmoving party, and the inferences to be drawn from the
facts must be viewed in a light most favorable to the nonmoving
party. See id. at 631.
The defense of qualified immunity protects "government
officials . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
rule of qualified immunity "`provides ample protection to all but
the plainly incompetent or those who knowingly violate the law.'"
Burns v. Reed, 500 U.S. 478, 495 (1991) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
set forth a particular sequence of questions to be considered in
determining whether qualified immunity exists. The court must consider this threshold question: "Taken in the light
most favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a constitutional
right?" Id. at 201. If no constitutional right was violated if
the facts were as alleged, the inquiry ends and defendants
prevail. See id. If, however, "a violation could be made out
on a favorable view of the parties' submissions, the next,
sequential step is to ask whether the right was clearly
established. . . . `The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.'" Id. at 201-02
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Both California law and the Due Process Clause itself confer
upon an inmate a right to be free from the arbitrary
administration of antipsychotic medication. See Keyhea
injunction, supra; Washington v. Harper, 494 U.S. 210, 221-22
(1989). However, "given the requirements of the prison
environment, the Due Process Clause permits the State to treat a
prison inmate who has a serious mental illness with antipsychotic
drugs against his will, if the inmate is dangerous to himself or
others and the treatment is in the inmate's medical interest."
Id. at 227. The decision whether to medicate an inmate against
his will satisfies due process when facilitated by an
administrative review by medical personnel not then involved in
the inmate's treatment. Id. at 233. Due process does not
require a judicial hearing before an inmate may be involuntarily
medicated, does not require that the hearing be conducted in
accordance with the rules of evidence, and does not require a
"clear, cogent, and convincing" standard of proof. Id. at 228,
235. Due process is satisfied if the inmate is provided with
notice, the right to be present at an adversarial hearing, and
the right to present and cross-examine witnesses. Id. at 235.
Appointment of counsel is not required; the provision of a lay
adviser who understands the psychiatric issues involved is
sufficient protection. Id. at 236.
The Ninth Circuit has recognized that Harper's procedural
protections may not apply in an emergency situation.*fn2 In
Kulas v. Valdez, 159 F.3d 453, 456 (9th Cir. 1998), cert.
denied, 528 U.S. 1167 (2000), the court appeared to agree that an
emergency could excuse compliance with notice and a
pre-medication hearing, even though the facts of the case before
it did not present an actual emergency: "There is no evidence
that Kulas posed such an imminent and serious danger to himself
or others that the minimal procedural requirements of Harper
notice and the right to be present at and participate in a
hearing could not be met." Kulas, 159 F.3d at 456; see also
Hogan v. Carter, 85 F.3d 1113, 1116-17 (4th Cir.), cert.
denied, 519 U.S. 974 (1996) (Harper procedural protections do
not apply in emergency). Thus, although the law was clearly
established that an inmate could not be involuntarily medicated
without the state providing procedural protections regarding such
a decision, the federal law on the procedural protections
necessary for emergency administration of antipsychotic drugs was
not very well fleshed out.
Wakefield does not contend that the Keyhea procedural scheme
used in California does not comport with the requirements in
Harper. Rather, his complaint is that his due process rights
were violated because the medication order was based on false
Both Dr. Bortman and Dr. Douglas reached the conclusion that
Wakefield suffered a harmful mental disorder and was a danger to
others. "[T]he decision, if made by a professional, is
presumptively valid; liability may be imposed only when the
decision by the professional is such a substantial departure from
accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the
decision on such a judgment." Youngberg v. Romeo, 457 U.S. 307,
323 (1982). Although Youngberg involved decisions for the
appropriate training of institutionalized mentally retarded
persons, it does reflect the Court's deference to professional
medical opinions. Indeed, Harper itself acknowledged that
medical personnel were better-suited to deciding the treatment
issues than were judicial officers: "We cannot make the facile
assumption that the patient's intentions, or a substituted
judgment approximating those intentions, can be determined in a
single judicial hearing apart from the realities of frequent and ongoing clinical observation by medical
professionals." Harper, 494 U.S. at 231-32; see also id. at
230-31 n. 12 (Court should not discount the "benefits of these
[antipsychotic] drugs, and the deference that is owed to medical
professionals who have the full time responsibility of caring for
mentally ill inmates like respondent and who possess, as courts
do not, the requisite knowledge and expertise to determine
whether the drugs should be used in an individual case.")
Wakefield does not demonstrate a triable issue of fact that Dr.
Bortman and Dr. Douglas failed to comply with due process
requirements. He does not present probative evidence which calls
into question the presumptive reliability of the doctors'
decisions. He argues that Drs. Bortman and Douglas did not have
any declarations or written reports to support their
determinations. Wakefield argues, without any evidentiary
support, that there would have been a written disciplinary report
if he had threatened any officer. Due process and standard
medical practice do not require that doctors base their decisions
only on written reports. The doctors could have received oral
reports of the problems or could have directly observed the
problems. Indeed, the court would find the existence of
disciplinary reports odd under the circumstances: the inmate was
in the psychiatric unit and misbehavior was a manifestation of
his mental illness. (Wakefield also has not submitted records
showing that he received rule violation reports on later
occasions where he was involuntarily medicated for similar
conduct as that alleged in July 2000.) The hearing officer did
later determine that the records did not support the involuntary
medication order but the absence of records does not show that
the original decision was fabricated. It does not appear that the
inmate's mere denial of doing the conduct that formed the basis
for the doctor's order is sufficient to defeat qualified
immunity; otherwise, every medication order would subject the
treating physician to a court action that could not be resolved
without a trial.
Wakefield claims that he received the notice of certification
on July 25, rather than the July 24, 2000, date on the notice.
This dispute of fact is immaterial because due process did not
require that the notice be given within one rather than two days
of the beginning of medication. The Keyhea injunction requires
that the notice be given within five days of the initiation of medication and, whether the notice was given on July 24 or July
25, it was timely.
On the submissions of the parties, there does not appear to
have been a violation of Wakefield's constitutional rights. He
received the procedural protections to which he was entitled.
Even if defendants' conduct did amount to a constitutional
violation, the contours of the right were not sufficiently clear
that a reasonable doctor would have understood that signing the
notification of certification was unlawful. Dr. Bortman and Dr.
Nelson, knowing that procedural protections were required for any
inmate who was to be involuntarily medicated, reasonably could
have believed their conduct lawful when they authorized the
administration of antipsychotic medication for Wakefield in
compliance with California's Keyhea procedures and upon their
observation that Wakefield was a danger to others and was gravely
Because the law did not put defendants on notice that their
conduct would be clearly unlawful, summary judgment based on
qualified immunity is appropriate. See Saucier, 533 U.S. at
202. Defendants met their burden of proof in their moving papers.
Wakefield did not introduce evidence to show the existence of a
genuine issue of fact on the defense. Defendants are entitled to
judgment as a matter of law on the qualified immunity defense.
For the foregoing reasons, defendants are entitled to judgment
as a matter of law on their defense of qualified immunity against
Wakefield's suit. Defendants' motion for summary judgment is
GRANTED. (Docket # 14.) Judgment will now be entered in favor of
defendants and against Wakefield. The clerk shall close the file.
IT IS SO ORDERED.