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United States District Court, N.D. California

August 9, 2004.

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.




  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.

  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 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.


  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 (citations omitted).

  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 information.

  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 disabled.

  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.


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