The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Plaintiff Rodolfo Anderson ("Anderson") is a California state prisoner. He is serving a sentence of over 210 years for multiple counts of assault with a machine gun, carjacking, and robbery. (Anderson Deposition 8:13-17; Doc. No. 62 ¶ 4.) On May 15, 2007, Anderson filed an in pro per complaint, pursuant to 42 U.S.C. §1983, against "Dr. Mark Talisman (Psychiatrist), a psychiatrist at California State Prison, Corcoran (CSPC), Rn. Leblue (Registered Nurse)." (Doc. No. 1.) Dr. Talisman filed an answer to the complaint on June 26, 2008. Anderson filed a reply to the answer to his complaint on August 1, 2008.
In his complaint, Anderson alleged that the Defendants administered anti-psychotic medications against his will without due process in violation of the Fourteenth Amendment, because he was talking loudly while exercising his First Amendment right to freedom of speech.
On November 13, 2008, Anderson, acting in pro per, filed a pleading, styled as a first amended complaint, solely against Dr. Talisman.*fn1 (Doc. No. 27.) Dr. Talisman filed an answer to the first amended complaint on December 15, 2008. (Doc. No. 31.)
On January 20, 2009, Anderson filed a reply to Dr. Talisman's answer to the first amended complaint. (Doc. No. 35.) On January 28, 2009, Anderson filed a motion requesting the appointment of counsel because he was "currently a patient in the Mental Health Delivery System at the C.O.P. level of care and taking four (4) psychotropic medications and the issues are too complexed for Plaintiff's comprehension." (Doc. No. 40.) This Court granted the motion for the appointment of counsel on February 9, 2009. (Doc. No. 41.)
Following discovery cutoff, Dr. Talisman filed a motion for summary judgment on June 15, 2009. (Doc. No. 47.) Anderson's counsel filed an opposition to Dr. Talisman's motion for summary judgment on July 9, 2009. (Doc. No. 59.) Dr. Talisman filed a reply on July 15, 2009. (Doc. No. 65.)
After reviewing the pleadings and submissions by the parties, for the reasons set forth below, the Court will grant Dr. Talisman's motion for summary judgment.
In his first amended complaint, Anderson alleged that he was admitted to the CSP-COR Acute Care Hospital ("ACH") on August 8, 2006 "due to paranoia thoughts relating to an unexpected attempt to transfer complainant to another facility." (Doc. No. 27 at 4.)
He also alleged that while he was talking loudly in his cell at the ACH on August 9, 2006, to another inmate "about how America wrongfully went to war with Iraq based upon lies," a female nurse directed him to drink the contents of a clear plastic cup. (Id.) Anderson asked the nurse what was in the cup. (Id. at 5.) He was told that it was Resperdal and had been prescribed by a doctor. (Id.) When Anderson asked to see the doctor, the nurse departed without giving him the medication. (Id.)
Anderson further alleged that five minutes later, two correctional officers came to his cell, handcuffed him, and took him to Dr. Talisman's office. (Id.) Dr. Talisman informed him that he was ordering involuntary medication three times a day for three days. (Id.) Anderson further alleged that when he inquired of Dr. Talisman why he was being subjected to a medication against his will since he had done nothing wrong, Dr. Talisman replied, "You're psychosis [sic], you're hearing voices." (Id. at 6.) Anderson alleges he responded: "No I'm not. I never told you that." (Id.) Dr. Talisman replied: "Oh well. That's what I've ordered. Get him out of here!" (Id.) Anderson alleged that after he was returned to his cell, a nurse administered "psychotropic medication into his veins" while he was still handcuffed. (Id.)
Anderson alleged that on August 30, 2006, he was again admitted to ACH "due to paranoia thoughts relating to another attempt to transfer complainant to another facility that complainant was afraid to go to." (Id.) Two hours after being admitted, he saw another inmate forcibly medicated. (Id. at 7.) After the nurses and guards left, Anderson asked the inmate if he was under a court order that authorized involuntary medication. Anderson alleged that he spoke loudly because "the cells are sealed without any openings in the door or anywhere to talk through." (Id.)
Anderson alleged that Dr. Talisman approached his cell and stated: "Mr. Anderson, somehow I knew all this noise was coming from you. You just can't keep your mouth shut, can you? Well, I'm going to put you on involuntary medication for 72 hours until you learn how to keep quiet." (Id.)
Anderson alleged that he replied: "Dr. Talisman, that's not right. I am not suicidal nor a threat to anyone else. Can I speak to another doctor or anyone else because I feel that you're bias [sic] towards me." (Id.) Anderson alleged that Dr. Talisman replied: "I'm sorry Mr. Anderson you cannot. Maybe this time you'll learn to keep your mouth shut." (Id. at 8.) Anderson further alleges that after Dr. Talisman left, he was handcuffed by two correctional officers and a male nurse administered a high dosage of Geodon, a psychotropic medication. (Id.)
Anderson alleged in his first amended complaint that the failure to advise him of the possible side affects of the drugs before they were administered against his will, the denial of an administrative hearing, and the denial of an opportunity to speak to an unbiased physician demonstrates "gross negligence, deliberate indifference and reckless disregard for complainant's well being, were undue retaliatory measures exercised under the color of authority, not to advance a legitimate medical or correctional goal (because complainant was not a harm or threat to himself or anyone else,) but to punish him solely for exercising his First Amendment right to free speech." (Id. at 11.)
Anderson prayed for injunctive relief, and compensatory, as well as punitive damages.
Dr. Talisman contends that his motion for summary judgment should be granted because there is no genuine issue of material fact regarding whether he violated due process by injecting Anderson with a medication against his will on three separate dates as immediately necessary for the preservation of Anderson's life and the prevention of serious bodily injury to himself or others due to a sudden change in his mental condition. Dr. Talisman also asserts that he did not retaliate against Anderson because he exercised his First Amendment right to the freedom of speech.
In his response to Dr. Talisman's motion for summary judgment, Anderson argues that the motion should be denied because there are genuine issues of material fact in dispute regarding whether he "posed an imminent threat of harm to himself or to others justifying Defendant's orders to involuntarily medicate him on August 9, 2006 and on August 30, 2006," (Doc. No. 59 at 5) and whether Dr. Talisman ordered an involuntary injection of Geodon so that "next time you will learn to keep your mouth shut." (Id. at 9.)
A district court may grant a motion for summary judgment when "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under this standard, "the substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is genuine for the purpose of summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
[A] party seeking summary judgment 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.
The movant may satisfy this burden by either "submit[ting] affirmative evidence that negates an essential element of the nonmoving party's claim" or "demonstrat[ing] to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Id. at 331. "Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party." Id. at 332. The material lodged by the moving party "must be reviewed in the light most favorable to the opposing party." Adickes, 398 U.S. at 457. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255.
[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.
Id. at 254-55. If the moving party carries its burden, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In his opposition to Dr. Talisman's motion for summary judgment, Anderson's sole contention is that "[t]here are triable issues of fact as to whether Mr. Anderson posed an imminent threat of harm to himself and others justifying Defendant's orders to involuntarily medicate him on August 9, 2006 and on August 30, 2006." (Doc. No. 59 at 1.) This argument is directed at Anderson's claim that his Fourteenth Amendment right to due process was violated. The opposition fails to address the First Amendment claim set forth in Anderson's first amended complaint. In his reply to Anderson's opposition to the motion for a summary judgment, Dr. Talisman argues that "this Court should consider the . . . First Amendment issues conceded by Anderson." (Doc. No. 65 at 2.)
It is the law of the Ninth Circuit that a federal constitutional claim that is not referred to in an opposition to a motion for summary judgment "must be dismissed." Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008). Therefore, the claim that Dr. Talisman ordered that Anderson be injected with a psychotropic medication against his will in violation of, or in retaliation for, his right to freedom of speech must be dismissed.
Accordingly, this Court must consider the evidence presented by the parties in the light most favorable to Anderson to determine whether Anderson's substantive or procedural Fourteenth Amendment rights were violated by Dr. Talisman.
In Washington v. Harper, 494 U.S. 210 (1990), the Supreme Court instructed that a state prisoner "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Id. at 221. In a subsequent passage, the Supreme Court held that "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 Court held that Harper's substantive Due Process rights were met because the "proper use of [antipsychotic] drugs is one of the most effective means of treating and controlling a mental illness that is likely to cause violent behavior. Id. at 226. The inmate in Harper "was involuntarily medicated for about one year." Id at 217.
The Court also rejected Harper's claim that his procedural due process rights were violated because a judicial hearing was not conducted as a prerequisite for his involuntary treatment. Id. at 228. The Court concluded that the procedure adopted by the state of Washington that required that an administrative hearing be held to determine whether the decision made by a medical professional to administer an antipsychotic medication if an inmate suffers a mental disorder and is "dangerous to himself, others, or their property" satisfied procedural due process protections. Id. at 232-233.
In his opposition, citing Kulas v. Valdez, 159 F.3d 453 (9th Cir. 1998), Anderson concedes that under the law of this Circuit, the due process procedural requirements described in Harper are not applicable when an emergency exists requiring the involuntary ...