FINDINGS AND RECOMMENDATIONS
Plaintiff, a former inmate at the Solano County Jail, is proceeding pro se with several claims brought pursuant to 42 U.S.C. § 1983 and state law. Defendant Stanton is the Sheriff/Coroner of Solano County and defendant Headley was a correctional lieutenant at the Solano County Jail until his retirement in March 2006. The defendants are sued by plaintiff in both their personal and official capacities. Now pending before the court is the motion for summary judgment brought on behalf of defendants Stanton and Headley.*fn1 Plaintiff has filed his opposition and defendants have filed a reply.
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On December 8, 2006, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
LEGAL STANDARDS RELATING TO SUPERVISORIAL LIABILITY
Supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).
"Liability under section 1983 arises only upon a showing of personal participation by the defendant." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Therefore, a supervisor is only liable for his own acts taken under color of state law. Kentucky v. Graham, 473 U.S. 159, 165 (1985). As the Ninth Circuit has recently observed:
Under § 1983 a supervisor is only liable for his own acts. Where the constitutional violations were largely committed by subordinates the supervisor is liable only if he participated in or directed the violations.
Humphries v. County of Los Angeles, ___F.3d___, ___, 2009 WL 102101, at * 27 (9th Cir. Jan. 15, 2009).
The U.S. Supreme Court has recognized as follows:
Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.
Kentucky v. Graham, 473 U.S. at 165-66 (internal quotation marks and citation omitted). Suits against government officials in their official capacity are to be treated as suits against the government entity and the real party in interest is the entity for which the official works. Hafer v. Melo, 502 U.S. 21, 25 (1991).*fn2 Because the real party in interest in an official capacity suit is the governmental entity and not the named official, to establish municipal liability the plaintiff must show that the entity is a moving force behind the deprivation or that the entity's policy or custom played a part in the violation of federal law. Kentucky v. Graham, 473 U.S. at 166; Hafer, 502 U.S. at 361-62. In an official capacity suit, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body's officers.
Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments . . . may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels.
Monell v. Dep't of Social Services, 436 U.S. 658, 690 (1978). Such unwritten customs, although not authorized by written law, can be so permanent and well settled as to constitute a custom or usage with the force of law. Monell, 436 U.S. at 691.
Plaintiff presents forty-nine claims for relief in his complaint. Defendants Stanton and Headley have been named in several of those claims based on their supervisorial positions.
I. Right to Privacy Claims
In claiming that his right to privacy under both state and federal law was violated by the defendants, plaintiff alleges:
It is the practice, and custom for defendant Stanton's agents to stand next to pretrial detainees during all medical visits and doctor visits eaves dropping on the confidential physician patient conversations in violation of penal [sic] §636(b).
The failure of defendant Stanton to ensure his agents do not violate California Penal Code § 636 (b) by eavesdropping on confidential physican [sic] patient conversations constitutes diliberate [sic] indifference and further denied the plaintiff the right of privacy explicitly guaranteed by Article 1 §1 of the California Constitution and the Fourth Amendment of the United States Constitution. (Compl. at 19, ¶ 96 and at 36, ¶ 173.) Plaintiff has not sought compensatory damages with respect to this claim but rather seeks punitive damages from defendant Stanton in the amount of $25,000. (Id. at 45.)
Defendant Stanton has moved for summary judgment on these claims, arguing both that plaintiff failed to comply with the California Tort Claims Act claim presentation requirement with respect to such claims and that, in any event, the evidence before the court establishes that no right to privacy enjoyed by plaintiff was violated by defendants.
In recently considering another motion for summary judgment brought in this action, the court determined that the defendant was entitled to summary judgment on these claims because plaintiff had failed to comply with the California Tort Claim Act. In addition, the court recommended that summary judgment be granted in favor of the defendant with respect to plaintiff's federal privacy claim because plaintiff did not enjoy a federal constitutional right to privacy based on the doctor-patient privilege as he alleged under the facts established by the evidence before the court. In this regard, the undersigned observed:
Citing California Government Code § 950[fn omitted], plaintiff argues that the claims presentation requirement applies only to claims brought against a public entity and not to claims against a public employee. (Opp'n at 29.) Plaintiff is mistaken. As a district judge of this court has observed:
To the extent that plaintiffs bring state tort claims against Officer Sexson and Agent Corral, these claims must be dismissed. It is well established that to sue a public employee under California law, a plaintiff must first file a claim with the employing public entity. See Cal. Gov. Code § 950.2. [fn omitted] Section 950.2 of the California Government Code mandates that a cause of action against a public employee . . . for injury resulting from an act or omission in the scope of his employment as a public employee is barred unless a timely claim has been filed against the employing public entity. Fowler v. Howell, 42 Cal. App.4th 1746, 1750, 50 Cal. Rptr.2d 484 (1996). The California Legislature included in the Tort Claims Act what amounts to a requirement that . . . one who sues a public employee on the basis of acts or omissions in the scope of the defendant's employment [must] have filed a claim against the public-entity employer pursuant to the procedure for claims against public entities. Briggs v. Lawrence, 230 Cal. App.3d 605, 612-13, 281 Cal. Rptr. 578 (1991) (citing Cal. Gov. Code §§ 911.2, 945. 4, 950.2, 950.6(a)). Indeed, failure to adequately allege ...