FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. While confined at Sacramento County Jail as a pretrial detainee, Plaintiff alleges in his first amended complaint that the named defendants violated his Eighth Amendment rights by failing to provide him with adequate psychiatric care for his depression and suicidal thoughts. Plaintiff also alleges a violation of his Fifth and Fourteenth Amendment rights to due process by Defendant Sacramento County Board of Supervisors for their alleged failure to provide adequate funds to the Sacramento County Jail, resulting in inadequate mental health care for inmates, and its alleged failure to hold the Sacramento County Jail to the standards set forth by California statute.
Before the court are two motions for summary judgment. The first was filed by defendants Dr. Gregory Sokolov, M.D.; Barbara McDermott, Ph.D.; Laurie Severance; and Mark Hopkins. (Doc. No. 115.) The second motion for summary judgment was filed by defendants Sacramento County Board of Supervisors, Sergeant Julie Pederson, Deputy Brian Painter, Deputy Ryan Kacalek, and Deputy Jason Kearsing. (Doc. No. 129.)
For the reasons set forth below, the undersigned recommends that the court partially grant the motion for summary judgment filed by defendants Dr. Sokolov, Dr. McDermott, Severance; and Hopkins; and grant the motion for summary judgment filed by defendants Sacramento County Board of Supervisors, Sergeant Pederson, Deputy Painter, Deputy Kacalek, and Deputy Kearsing.
On May 7, 2007, plaintiff filed a complaint against Sacramento County, Sacramento County Sheriff Department, Dr. Sokolov, Deputy Pederson, Deputy Painter, Deputy Kacalek, and Deputy Kearsing. (Doc. No. 1.)
On January 10, 2008, defendants County of Sacramento and Sacramento County Sheriff Department were terminated from this action by order of the Honorable Kimberly J. Mueller. (Doc. No. 14.)
On April 24, 2008, this matter was referred to the undersigned in light of a notice of a related case. (Doc. No. 30.)
On June 19, 2008, plaintiff filed an amended complaint against defendants Sacramento County Board of Supervisors; Barbara McDermott, Ph.D.; Gregory Sokolov, M.D.; Lori Severance, L.C.S.W.; Mark Hopkins, A.S.W.; Sergeant Pederson; Deputy Painter; Deputy Kakalach; and Deputy Kearsing. (Doc. No. 64.)
On April 3, 2009, defendants Sokolov, McDermott, Severance, and Hopkins filed a motion for summary judgment. (Doc. No. 115.) These defendants seek summary adjudication on the ground that plaintiff cannot demonstrate that they acted with deliberate indifference. They argue plaintiff was malingering his symptoms in order to obtain psychiatric care and/or psychiatric medication for potential drug abuse and a mental health defense for his criminal trial where he was facing life imprisonment on a three strikes charge. They rely upon the following in support of their motion: (1) the declaration of Charles Meyers, Ph.D.; (2) the deposition of plaintiff; (3) plaintiff's medical records from Jail Psychiatric Services ("JPS"); (4) plaintiff's records from Sacramento Superior Court; (5) plaintiff's records from U.C. Davis Medical Center; and (6) the declaration of Michael Vitacco, Ph.D. Alternatively, these defendants seek qualified immunity.
On April 24, 2009, defendants Sacramento County Board of Supervisors, Julie Pederson, Brian Painter, Ryan Kacalek, and Jason Kearsing filed a motion for summary judgment. (Doc. No. 129.) These defendants seek summary adjudication on the ground that plaintiff cannot demonstrate that they acted with deliberate indifference. They rely upon the following in support of their motion: (1) the declaration of John O'Shaughnassy; (2) the declaration of Julie Pederson; (3) the deposition of plaintiff; (4) the declaration of Charles Meyers, Ph.D.; (5) the declaration of Michael Vitacco, Ph.D.; (6) plaintiff's medical records from JPS; (7) the declaration of Ryan Kacalek; (8) the declaration of Brian Painter; (9) the declaration of Jason Kearsing; (10) plaintiff's medical records from U.C. Davis Medical Center; (11) plaintiff's records from Sacramento County Sheriff's department; and (12) the declaration of Lieutenant Chet Madison, Jr. Alternatively, these defendants seek qualified immunity.
Plaintiff Eric Martin*fn2 has a lengthy criminal record, including the following convictions: (a) on June 28, 1990, plaintiff was convicted of robbery, a "serious felony" that comes within the provisions of Cal. Penal Code § 667(b)-(i) and 1192.7(c), California's three strike law; (b) on April 25, 1994, plaintiff was convicted of robbery and attempted kidnapping, both also considered "serious felonies" under California's three strike law. (See Doc. No. 116, Ex. D at 8-11.)
While incarcerated, plaintiff's medical records reflect an extensive mental health history. (See Am. Compl., Ex. A; Pl.'s Opp'n, Ex. D.) The records document diagnoses of depression and bipolar disorder, as well as the numerous medications he had been prescribed, including Amitriptyline, Zoloft, lithium, and Sertraline. (Id.)
On June 27, 2004, plaintiff was arrested on charges of receiving stolen property, possession of a switch blade knife, and a parole violation. (See Pl.'s Decl. ¶ 4; Doc. No. 116, Ex. D at 17-18.) He was housed at the Sacramento County Jail awaiting trial facing his third strike. (Pl.'s Dep. at 13-14.)
In early July 2005, plaintiff's brother was murdered. (Pl.'s Dep. at 12.) Plaintiff posted bail to assist with his brother's burial. (Id.)
During the period of June 27, 2004 to his release on bail in early July 2005, plaintiff was not seen by nor requested to be seen by Jail Psychiatric Services ("JPS"). (Doc. No. 116, Ex. C at 5, 12.)
On July 18, 2005, plaintiff returned to Sacramento County Jail following his arrest for robbery, burglary and a parole hold. (Pl.'s Dep. at 11:4-5; Doc. No. 116, Ex. D at 8-11.)
On July 26, 2005, plaintiff requested to see psychiatric staff because he was "having sleep problems and hearing voices." (See Doc. No. 116, Ex. C at 22.) There is no evidence that plaintiff was seen following this request.
On August 8, 2005, JPS was contacted by a housing officer regarding plaintiff. (See Doc. No. 116, Ex. C at 21.) The referral form provides: "[Inmate] states 'He's going through it.' Wants to speak to someone in Psych Services. Officer states he's been really quiet and not his usual self -- Is requesting a [psych] evaluation soon (please)." (Id.)
On August 8, 2005, plaintiff was seen by Mark Hopkins, a social worker employed by JPS. (Doc. No. 116, Ex. C at 8.) Defendants assert both plaintiff and custody staff requested that plaintiff be seen by JPS. (See Doc. No. 116 at 3.) Although plaintiff's amended complaint is congruous with this statement, in his amended complaint plaintiff stated that he did not affirmatively request to be seen by JPS; rather, custody staff initiated the request based on plaintiff's altered demeanor from his incarceration prior to posting bail. (See Pl.'s Decl. ¶ 6.)
Hopkins' notes indicate that the purpose of his visit was that the "[d]eputies report that he has not been acting his usual self, tending to be isolative and less social than prior incarcerations. . . . The deputies report that he has been very quiet and withdrawn this incarceration which they report is completely different from previous incarcerations." (Pl.'s Mem. of P & A's, Ex. A at 5 (2 of 3)*fn3 .)
Hopkins' notes further provide, in relevant part:
Thought processes linear. Depressed mood with tearful affect by the end of the interview. No S/I, H/I. Reports no Hx of suicide attempts. No evidence of psychotic sxs. Reports 1-2 hours sleep per night. Reports that he has been "going through it" like he never has before during this incarceration.
Described a strange scenario leading up to his arrest and being unaware of things for the first almost 24 hours in jail. Reports his brother had been killed recently and he got out of jail on bond to be able to go to the funeral. No Hx with JPS on prior incarcerations.
Reports he had been with [the Correctional Clinical Case Management System ("CCCMS")*fn4 ] when he got out of prison the last time and showed some paperwork that indicated getting out of prison on 10/02 with CCCMS circled on it. (Pl.'s Mem. of P & A's, Ex. A at 5 (2 of 3).)
During his deposition, plaintiff testified as to the following regarding his visit with defendant Hopkins:
Q: Did you tell [Hopkins] you were thinking about suicide or not thinking about it?
A: No. What took place was, it was the first time -- I didn't know he was coming to see me. But the officers in my unit, the same place that I bailed out of, when I bailed out the county jail, I was in
8 West 200 pod. And when I got brought back in, they put me back in that unit because that's where I was before I bailed out.
A: And the officers there, later on I talked to them and they told me, "Man, you came in here tripping. You was tripping big time, and we start referring you to Jail Psych Services because you wasn't talking to nobody. You was crying all the time."
And when I met this person, . . . [Hopkins] came to see me, and he told me that "The officers asked me to come see you; what's going on?"
And I explained to him, "Man, you know, man, I just bailed out of here. I'm back. I went to bury my brother. My brother got murdered, and it's really bothering me."
And he said, "Well, what's going on with you?"
I said, "Man, I'm on parole. I've taken medication before for depression, and I'm going through it again."
And he said, "Well, can you verify that you took medication or that you're on parole?"
And I gave him a paper, and it's a paper that you get when you get arrested and you come to Sac County jail. You have to see people from parole. They come and notify you that you're getting your parole revoked, and they give you a form that says -- I have it.
Q: But, [Plaintiff], did you tell him on that day that you were thinking of killing yourself?
A: Did I tell him on that day?
A: I told [Hopkins] that I'm having bad thoughts and I don't want to hurt myself, and I told him that I'm going through it, and can you guys just check with CDC and see what I took in the past so I can get some medication.
Q: Did he ask you whether you were thinking of hurting yourself right then that same day?
Q: He has here that you did not have -- and you see where it says S slash I? That's shorthand for suicidal ideation. That means thoughts of suicide in shorthand.
A: He had -- I understand, I understand. And he never asked me, did I feel suicidal. He never asked me, did I have any thoughts of harming myself.
Q: And did you have any thoughts of harming yourself on that day?
A: On that day, no. On that day, I just wanted somebody to help me get my medication, get me started on some medication. That's all. I was going through it. (Pl.'s Dep. at 33-35.)
Defendant Hopkins found that plaintiff did not meet "5150 criteria"*fn5 and advised that he remain housed "per custody." (Pl.'s Mem. of P & A's, Ex. A at 5 (2 of 3).) Hopkins also referred plaintiff to be seen by a psychiatrist with JPS. (Id.)
On August 11, 2005, plaintiff's medical notes indicate that defendant Dr. Sokolov, the Medical Director for JPS, attempted to meet with plaintiff, but the latter was unavailable. (Pl.'s Mem. of P & A's, Ex. A at 5(2 of 3).) Dr. Sokolov rescheduled the visit for August 24, 2005. (Id.)
On August 22, 2005, custody staff contacted JPS at 4:30 a.m. (See Doc. No. 116, Ex. C at 23.) Per the referral notes, "Custody really wants this guy seen! Tonite?" (Id.) The custody staff was advised that plaintiff was scheduled for a meeting on August 24, 2005 with JPS. (Id.)
On August 24, 2005, plaintiff was seen by Dr. Sokolov. (Doc. No. 116, Ex. C at 13; O'Shaughnassy Decl. ¶ 4.) Dr. Sokolov's medical notes indicate that plaintiff's family told him he "was acting funny before [his] arrest" and that he "was running down the street" without his clothes. (Doc. No. 116, Ex. C at 13.) The notes also indicate that plaintiff reported not sleeping at night, talking to himself, and having problems upon his return to jail. (Id.) Plaintiff reported people were talking to him "when no one is there," causing plaintiff to laugh. (Id.) Plaintiff had prolonged answers in response to questions and stated "people are following me" and that he was "hearing people." (Id.)
The notes further provide that plaintiff had previously been prescribed medication and was seen at the Doctor's Hospital of Manteca. (Id.) Dr. Sokolov indicated that he would request those medical records. (Id.)
Though it does not state how this information was obtained, Dr. Sokolov wrote in his notes the names of the following medications: "Seroquel" and "Wellbutrin." (Doc. No. 116, Ex. C at 13.) Seroquel and Wellbutrin, antipsychotic and antidepressant medication, respectively, allegedly have a reputation for their off-label use as drugs of abuse in jail and prison settings where they are commonly crushed, snorted or bartered. (Meyers Decl. ¶ 6; Doc. No. 116, Ex. C at 4.) A 2004 report in the American Journal of Psychiatry estimated that 30% of the inmates seeking psychiatric services in the Los Angeles County Jail tried to obtain the drug by specifically asking for it and by faking schizophrenic symptoms. (Meyers Decl. ¶ 6.)
Defendants' position is that plaintiff requested these medications. (See Doc. No. 116, Ex. C at 4; Meyers Decl. ¶ 6.) In his deposition, plaintiff refutes this position, testifying instead that he was merely responding to a question posed by Dr. Sokolov:
A: I started having problems. It was bothering me, okay? Losing my brother was bothering me.
A: And I brought to their attention that I was going through it. "Can you please get my file and help me get the medication that I take -- that I've taken previously for depression," okay?
Q: And that was the Seroquel and the Wellbutrin?
A: They asked me, did I take Seroquel. I told them I don't know if I take [sic] Seroquel.
If you see that paper right there, you'll see my initial interview, I told them that I've taken lithium before. I've told them that I've taken sertraline, Amitriptyline. There was numerous things I told them about. The one time that Seroquel was mentioned, it was mentioned when a doctor asked me, "Have you ever taken Seroquel before?"
And I told him, "Yeah, I think I have." On my initial interview, I told them that I've taken lithium before.
They said, "Have you ever taken Seroquel?"
And I said, "Yeah, I believe I had." Because I didn't know what Seroquel was, and I didn't know what lithium was, but I remember they gave it to me, and I know it was because they wanted to balance my highs and my lows . . . . (Pl.'s Dep. at 83-84.)
Lastly, plaintiff was asked whether he ever had any seizures, to which he responded he had previously. (Doc. No. 116, Ex. C at 13.) Plaintiff testified during his deposition that his last seizure was in 1996 and that he was hospitalized at the Doctor's Hospital in Manteca, but Dr. Sokolov's medical notes list the last seizure as July 2005. (Id.; Pl.'s Dep. at 108.)
During his meeting with Dr. Sokolov, plaintiff signed a release to allow the doctor to obtain plaintiff's medical records from the Doctor's Hospital in Manteca. (Pl.'s Mem. of P & A's, Ex. A at 6.)
Dr. Sokolov noted plaintiff's "bizarre" affect. (Doc. No. 116, Ex. C at 13.) He diagnosed plaintiff with a psychotic disorder (not otherwise specified), which he concluded was due to secondary effects of a seizure disorder or from malingering. (Id.) There is no evidence that defendant Dr. Sokolov ever obtained plaintiff's medical records.
Also on August 24, 2005, Dr. Sokolov referred plaintiff for consultation related to his seizures, which, on this document, are listed as having occurred in 1996. (Doc. No. 116, Ex. C at 24.) There is no evidence that plaintiff was in fact seen regarding this referral.
On August 28, 2005, upon request of custody staff, plaintiff was again seen by JPS. (Am. Compl., Ex. A at 20-21.) Defendant Hopkins again interviewed plaintiff. ...