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Reynaldo J. Castillo v. Solano County Jail


August 11, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Plaintiff, a state prisoner currently incarcerated at Mule Creek State Prison, proceeds in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. Presently pending for decision are motions for summary judgment filed by defendants Kadevari and Pilaczynski (Dkt. No. 60), defendants Solano County, Stanton, Dolan, Marsh and Grapentine (Dkt. No. 65), and by plaintiff (Dkt. No. 71). Also pending is plaintiff's motion to voluntarily dismiss defendants Stanton, Dolan, Marsh and Grapentine (Dkt. No. 67), which those defendants do not oppose (Dkt. No. 69). Plaintiff has filed an opposition to defendants' motions (Dkt. No. 71), and defendants have filed their replies and oppositions thereto (Dkt. Nos. 70, 72, 73).

For the reasons set forth below, this court recommends the dismissal of defendants Stanton, Dolan, Marsh and Grapentine, as well as Solano County; the court further recommends that the remaining defendants' motion for summary judgment should be granted in part and denied in part, and that plaintiff's motion for summary judgment should be denied.

II. Background

This action proceeds on plaintiff's amended complaint filed January 28, 2001.

(Dkt. No. 11 ("complaint," "Amended Complaint," or "AC").) Plaintiff alleges that he contracted scabies and a "Methicillin-resistent Staphylococcus Aureau" ("MRSA" or "staph") infection while incarcerated at Solano County Jail, due to defendants' alleged failure to isolate other infected inmates, compounded by the facility's allegedly unsanitary conditions. This court previously dismissed plaintiff's claim against defendant Dolan, for allegedly placing plaintiff in an unsanitary cell on January 13, 2009 (after this case was filed), for failure to exhaust administrative remedies. (Dkt. No. 14 at 2-4; see also Dkt. No. 19.) The court also dismissed plaintiff's "third party claims" to the extent that plaintiff sought to represent the interests of other inmates who may have contracted scabies and/or a staph infection, including as the alleged result of defendants' failure to quarantine plaintiff. (Dkt. No. 14 at 1-2, 4; see also Dkt. No. 19.)

This case now proceeds on plaintiff's Fourteenth Amendment due process claims (informed by the proscriptions of the Eighth Amendment) that defendants failed to: (1) provide plaintiff adequate medical care; and (2) protect plaintiff from contracting scabies and an MRSA infection. Plaintiff alleges that he has residual "scars on my arms and torso area, and a silver-dollar size scar on my right leg, thigh area." (Dkt. No. 11 at 8.) He contends that these diseases put him "in a state of fear for my life with continu(ous) anxiety and stress," in part because "[i]t is known in Solano County Jail that inmates who recklessly expose other inmates to contagious disease will get physically attacked." (Id.) Plaintiff alleges that contracting these diseases caused him "psychological stress" and "physical and psychological pain," and required plaintiff to isolate himself so as not to put others at risk. (Id. at 8-9.)

Plaintiff seeks damages totaling $1,200,000, as recompense for the alleged violation of his constitutional rights, and his pain and suffering. Plaintiff's requests for injunctive relief are now moot because each such request pertained only to plaintiff's former detention at Solano County Jail.*fn1 Thus, plaintiff's request for monetary damages is the only remaining relief sought.

III. Plaintiff's Motion to Dismiss

Plaintiff requests voluntary dismissal of the following defendants: Solano County Sheriff Stanton, Sergeant Dolan, and correctional officers Marsh and Grapentine. (Dkt. No. 67.) Plaintiff states that, "[b]ased upon the evidence acquired through discovery with the medical defendants in this case, plaintiff finds no evidence to support culpability of [these] defendants. . . ." (Id. at 1.) As plaintiff concedes, these correctional officials are not responsible for making medical decisions at Solano County Jail, and plaintiff's reliance on a provision in the County's "Inmate Rules Handbook," which authorizes administrative segregation for disciplinary reasons, is not relevant to the jail's isolation of inmates for medical reasons. Defendants filed a statement of non-opposition to plaintiff's motion. (Dkt. No. 69.)

Accordingly, defendants Stanton, Dolan, Marsh and Grapentine should be dismissed from this action. The remaining defendants are Solano County*fn2 (dismissal is recommended infra), and the medical defendants, physician Ravinder Kadevari, M.D., and physician assistant Chris Pilaczynski.

IV. Legal Standards

A. Legal Standards for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . 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).

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 Federal Rule of Civil Procedure 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. 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. at 323. 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.

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 exists. See Matsushita Elec. Indus. Co., Ltd. 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 Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809

F.2d at 631.

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 630. 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. 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. 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. 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 586 (citation omitted).

On May 15, 2009 (Dkt. No. 16), the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 29.) See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

B. Legal Standards for Municipal Liability Under Section 1983 Title 42, United States Code, section 1983, provides a private right of action

based on proof that a "person," acting under color of state law, committed an act that deprived the plaintiff of a right, privilege, or immunity protected by the Constitution or other federal law.

42 U.S.C. § 1983. Counties and other local governmental entities are "persons" within the meaning of the statute. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978). However, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694.

"A plaintiff may . . . establish municipal liability by demonstrating that (1) the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) the tortfeasor was an official whose acts fairly represent official policy such that the challenged action constituted official policy; or (3) an official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate." Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (citation and internal quotation marks omitted). Thus, a plaintiff may establish, under Section 1983, the liability of a local governmental entity by showing that the alleged "constitutional violation resulted from: (1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or custom; or (3) an employee acting as a final policymaker." Delia v. City of Rialto, 621 F.3d 1069, 1081--82 (9th Cir. 2010) (as amended).

However, "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, supra, 436 U.S. at 691. "Liability under section 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under section 1983." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted). Hence, "[a] supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (citing Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987)).

Additionally, "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the 'policy' and the constitutional deprivation." City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) (fns. omitted).

C. Assumption of Municipal Liability by Private Medical Provider When a state contracts with a private party to provide medical care to its prisoners, the obligations of the Eighth Amendment attach to the persons with whom the state contracts. West v. Atkins, 487 U.S. 42, 55-56 (1988). As found by the Supreme Court in West:

Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide adequate medical care to [petitioner]; the State delegated that function to respondent []; and respondent voluntarily assumed that obligation by contract.

Id. at 56 (fn. omitted).

Similarly, employees of a private entity hired by a county to provide medical care to jail inmates thereby act under color of state law, subject to liability under Section 1983. See Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704-06 (11th Cir. 1985) (although county is responsible for providing and paying for the health services of jail inmates, the acts, policies and customs of the jail's delegated medical provider made within the scope of the provider's delegated responsibilities are thereby official acts, policies and customs); see also Howell v. Evans, 922 F.2d 712, 724 (11th Cir. 1991)*fn3 ("when the state contracts out its medical care of inmates, the obligations of the eighth amendment attach to the persons with whom the state contracts"), citing West v. Atkins, supra, 487 U.S. 42; Hagan v. California Forensic Medical Group et al., 2009 WL 728465, *7 (E.D. Cal. 2009) (J. Karlton) ("CFMG employees have assumed a public function in providing medical care to inmates on behalf of the County.

In performing this function, they are state actors whose conduct is limited by the Eighth Amendment."), citing Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999) (identifying several cases which have made the "necessarily fact-bound inquiry" whether private conduct constitutes state action, quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)); George v. Sonoma County Sheriff's Department, 732 F. Supp. 2d 922, 933-36 (N.D. Cal. 2010) (private physician and private hospital contracting with a public prison system to provide medical treatment for inmates perform a public function actionable under Section 1983), and cases cited therein; Newman v. County of Ventura, 2010 WL 4025618, *5 n.8 (C.D. Cal. 2010) ("private § 1983 defendants" are state actors under the statute if they perform functions traditionally within the exclusive authority of a governmental entity), citing Buckner v. Toro, 116 F.3d 450, 453 (11th Cir. 1997), cert. denied, 522 U.S. 1018 (1997); and Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003), cert. denied, 540 U.S. 1179 (2004); see also Hickey By and Through Timalu v. County of Stanislaus, 1996 WL 73371, *3 (9th Cir. 1996) (because a "private corporation [CFMG] providing medical services under contract with the State Department of Corrections cannot be held liable on a theory of respondeat superior," plaintiff must name individual staff members as defendants) (citations omitted); Baker v. County of Sonoma, 2010 WL 1038401, *13 (N.D. Cal. 2010) (assuming without deciding that CFMG employees assume a public function when providing medical care to inmates and are therefore subject to the proscriptions of the Eighth Amendment); Atilano v. County of Butte, 2008 WL 4078809 (E.D. Cal. 2008) (same); Knowles-Browder v. California Forensic Medical Group Staff, 2007 WL 210518 (E.D. Cal. 2007) (same).

D. Legal Standards for the Provision of Medical Care to Pretrial Detainees Plaintiff contends that, as a pretrial detainee during the events at issue, his right to obtain constitutionally adequate medical care was premised on the "broader protections" of the Fourteenth Amendment's Due Process Clause, rather than merely on the prohibitions of the Eighth Amendment. (Dkt. No. 71 at 1, 7.) Defendants respond that the standard of care is "the same" under either constitutional provision. (Dkt. No. 72 at 4.)

The Eighth Amendment's prohibition against cruel and unusual punishment does not apply "until after conviction and sentence." Graham v. Connor, 490 U.S. 386, 392 n.6 (1989), and related text. However, "[p]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners." Bell v. Wolfish, 441 U.S. 520, 545 (1979). "Thus, while the eighth amendment proscribes cruel and unusual punishment for convicted inmates, the due process clause of the fourteenth amendment proscribes any punishment of pretrial detainees." Redman v. County of San Diego, 942 F.2d 1435, 1441 n.7 (9th Cir.1991) (en banc). "In light of the Supreme Court's rulings that conditions of confinement violate pretrial detainees' Fourteenth Amendment rights if the conditions amount to punishment, and that failure to prevent harm amounts to punishment where detention officials are deliberately indifferent, we have concluded that the 'deliberate indifference' standard applies to claims that correction facility officials failed to address the medical needs of pretrial detainees." Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242-43 (9th Cir. 2010), citing Bell, supra, 441 U.S. at 535, and Farmer v. Brennan, 511 U.S. 825, 834 (1994). "Because pretrial detainees' rights under the Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment . . . we apply the same standards." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998), citing Redman, supra, 942 F.2d at 1441.

While some courts within this circuit maintain that the Eighth Amendment provides only the minimum standard of care for pretrial detainees, thus suggesting that greater protections may be required by the Fourteenth Amendment, see e.g. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187-88 (9th Cir. 2002); Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996); Redman, supra, 942 F.2d at 1443; Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986), this court has found no case clearly identifying such greater protections.

Accordingly, for present purposes, the court will apply Eighth Amendment standards to plaintiff's Fourteenth Amendment due process claims.

V. Undisputed Facts

The following facts are either undisputed by the parties or, following the court's review of the evidence, have been deemed undisputed. 1. Plaintiff Reynaldo J. Castillo, now a prisoner at Mule Creek State Prison, was a pretrial detainee at the Solano County Jail from October 19, 2006, to August 2009.

2. Defendant physician Ravinder Kadevari, M.D., and defendant physician assistant ("PA") Chris Pilaczynski, were at all relevant times employees of the California Forensic Medical Group, Inc. ("CFMG"), which contracted to provide medical services for prisoners at the Solano County Jail. Dr. Kadevari was also Medical Director during the relevant period. (Dkt. No. 67 at 15 (Dr. Kadevari's answer to plaintiff's Interrogatory No. 11).)

3. According to the publication, "Inmate General Information Rules and Disciplinary Penalties for Solano County Sheriff's Department Detention Facilities" (set forth as Exh. A to Stanton Decl., Dkt. No. 65-8 at 1-37), "[t]he medical staff will make ALL decisions relative to medical care." (Id. at 19 (p. 18 of publication) (original emphasis).) In contrast, the authority of jail staff to administratively segregate jail inmates is limited to non-medical disciplinary decisions. (Id. at 8 (pp. 7-8 of publication).)

4. On June 20, 2008, defendant Kadevari treated plaintiff for a skin rash that Dr. Kadevari suspected may be scabies. (See Dkt. No. 71 at 35 (Exh. A).) Plaintiff complained of a rash on "both lower extremities and upper extremities [with] itching." (Dkt. No. 61-2 at 6.) Dr. Kadevari noted diffuse papulis and diagnosed possible scabies; he prescribed antiparasitic cream (Permethrin), to be applied all over plaintiff's body at bedtime, and morning showers. (Dkt. No. 61-2 at 9.) Dr. Kadevari also prescribed Benadryl, and instructed that plaintiff have a daily change of clothes and bed sheets. (Id.) In a follow-up appointment on June 27, 2008, Dr. Kadevari concluded that the suspected scabies problem had resolved. (Id. at 6.)

5. On October 30, 2008, defendant Pilaczynski diagnosed and treated plaintiff for a "dime-sized abscess" on the lateral side of his right thigh, noting that plaintiff's "prior celly [was diagnosed] w/ MRSA."*fn4 (See Dkt. No. 71 at 64 (Exh. F); Dkt. No. 61-2 at 5.) Pilaczynski performed an "I & D" (incision and drainage) of the abscess, and prescribed plaintiff an antibiotic (Bacitracin), pain medication (Vicodin initially, then Ibuprofen), and a daily change of the dressing over the incision site until it was healed. (Dkt. No. 61-2 at 1.) Plaintiff's medical records indicate that plaintiff took Bacitracin through November 9, 2008, as well as a pain medication, and that the dressing was changed daily through November 18, 2008, when the skin was noted to be "clean," "pink" and "stable." (Id. at 2-4.)

6. Neither defendant Kadevari nor defendant Pilaczynski ordered that plaintiff be quarantined,*fn5 or notified custodial staff that plaintiff may have had a communicable disease;*fn6 nor had a quarantine been imposed on others at Solano County Jail prior to plaintiff's initial treatment by either medical defendant.

7. It is the sworn opinion of defendants' medical expert, Dr. John Levin, M.D.,*fn7 that the treatment provided by Dr. Kadevari "was appropriate, effective and within the standard of care. No other or different treatment was medically required or needed for Mr. Castillo's problem in addition to or instead of the care provided by Dr. Kadevari." (Dkt. No. 61 at 4.)

8. It is the sworn opinion of defendants' medical expert, Dr. John Levin, M.D., that the treatment provided plaintiff by Pilaczynski met the applicable standard of care. Dr. Levin opined (Dkt. No. 61 at 3):

The treatment of P.A. Pilaczynski for the abscess was effective, resolved the abscess without residual problems and the case was within the applicable standard of care. There is no suggestion and, in fact, the records and the recovery of Mr. Castillo do not support, any claim by him that he had an MRSA infection; as noted, the bacitracin was effective in resolving the infective process and there was no need to have isolated or quarantined Mr. Castillo for what was a routine procedure. Neither is there any indication of any iatrogenic [physician-induced] or care-giver induced problem associated with the incision and drainage. The care and treatment was appropriate and effective and without medical residual of any consequence.

9. CFMG's "Policy and Procedure Manual" provides in pertinent part that "reportable" communicable diseases (including scabies and skin infections) should receive "the earliest possible identification and treatment . . . and utilize proper isolation techniques." (Dkt. No. 71 at 120, 122 (Exh. N).) The Manual provides that "[e]ctoparasitic infections shall be treated by health services staff on an individual basis promptly and thoroughly confined (sic) to prevent the spread of communicable conditions within the jail." (Id. at 121 (Exh. N).) This protocol requires that inmates "suspected of having scabies will be isolated and placed on priority list for next sick call." (Id.)

10. CFMG's "Policy and Procedure Manual" further provides in pertinent part that any "diagnosis" ("actual or confirmed diagnosis, initial impression or solely by statement of inmate") of a reportable communicable disease shall be reported by health services staff "to the officer in charge of the facility," and to the Solano County Public Health Department. (Dkt. No. 71 at 153-57 (Exh. R).) Such report may be cancelled "when any of the following occur: (1) Formal testing shows no evidence of reportable communicable disease; (2) Follow-up testing indicates inmate past stage of infectivity; (3) Inmate/ward has show[n] adequate response to medical interventions; (4) Following history taking and physical exam reveals inmate no longer contagious and presents no communicable disease risk." (Id. at 157.)

11. A March 2008 handbook published by the California Department of Public Health ("CDPH"), Division of Communicable Disease Control, entitled "Management of Scabies Outbreaks in California Health Care Facilities," submitted by plaintiff (Dkt. No. 71 at 97-118 (Exh. M)), supports plaintiff's contention that the CDPH recommends that every suspected case of scabies in a residential health facility should be tested by taking skin scrapings, and individuals with suspected scabies should be isolated until the infection has been ruled out, or has been adequately treated. (Dkt. No. 71 at 17-18 (emphasis added).)

12. In 2008 and 2009, the Solano County Jail (two facilities) had a combined average daily population of 1000 to 1100 inmates, reported the following instances of actual or suspected ectoparasites (including scabies), and MRSA in 2008 and 2009 (Declaration of Karina Purcell, R.N., CFMG Program Manager (Dkt. No. 64 at 2-3)):*fn8

Months (2008) J F M A M J J A S O N D Totals Ectoparasite 2 0 1 0 0 0 2 1 1 2 0 0 9 MRSA 6 1 7 1 7 3 1 1 3 2 0 0 32

Months (2009) J F M A M J J A S O N D Totals Ectoparasite 0 0 1 1 0 0 1 0 0 2 0 0 5 MRSA 2 6 5 1 1 1 0 1 0 2 1 0 20

VI. Sworn Affidavits

The following opinions have been submitted under penalty of perjury. Defendants have not refuted plaintiff's detailed construction of the evidence. The court has compared plaintiff's opinions with the available evidence (noted in detail below), and finds that plaintiff's assessments are generally accurate. Neither the court's assessment of the evidence, nor its summary of plaintiff's assessments, is intended to be thorough or conclusive, but both are sufficient to conclude that plaintiff's "failure to protect" claim cannot be decided on summary judgment.

1. It is plaintiff's sworn statement that he was celled with an inmate diagnosed with MRSA for five days before plaintiff was diagnosed with MRSA. (Dkt. No. 71 at 28-29 (quoted in full infra).)

2. It is the sworn opinion of Ms. Purcell, R.N., CFMG Program Manager, that the above-noted statistics demonstrate "[t]here were isolated instances of reports of suspected scabies . . . but no infestation that would have called for a quarantine," and that the number of "suspected MRSA infections were [not] in any way approaching a need for quarantine." (Dkt. No. 64 at 2.)

3. It is the sworn opinion of defendants' medical expert, Dr. John Levin, M.D., that the subject statistics "do not support any argument or conclusion that the Solano County Jail had experienced an 'outbreak' of either condition much less that the suspected but not confirmed report of scabies concerning Mr. Castillo that was treated and resolved, or the equally successfully treated abscess on his leg without sequellae were the result of any failure by the jail medical staff to quarantine the facility from an outbreak of either condition . . . [or] necessitated a[] shut down of the Solano County Jail in a jail wide quarantine." (Dkt. No. 63 at 2, 4.)

4. It is plaintiff's sworn assessment of the evidence that, in 2008, only two of the eight inmates with suspected or actual scabies (Inmates 50 through 57)*fn9 were medically isolated, and that the isolation of these inmates (Inmates 50 and 54) was ordered upon intake; plaintiff states that none of the inmates housed within the general jail population, who had suspected or actual scabies (Inmates 51-53, 55-57), were ever isolated. (Dkt. No. 71 at 12-13; see also id. at 6 (Plaintiff's Opposition Memorandum).) Plaintiff further avers that, while each of the eight inmates with suspected or actual scabies was given standard treatment for scabies, none were actually tested by taking skin scrapings to confirm or rule out the diagnosis. (Id. at 13.) The court's review of this evidence generally supports plaintiff's assessment, except it appears that, in addition to the isolation of Inmate 50 upon intake, Inmate 54 was isolated after being admitted tothe general population (not upon intake), while Inmate 55, a general population inmate, may have been temporarily isolated.*fn10 The court further notes that defendant Kadevari is identified in many of these records as the attending physician and/or the physician charged with supervising the attending nurses and physicians' assistants, including defendant Pilaczynski.

5. It is plaintiff's further sworn assessment that the 2009 evidence demonstrates that only two of the five inmates treated for suspected or actual scabies (Inmates 58 through 62) were medically isolated, and that the isolation of these inmates (Inmates 59 and 61) was ordered only upon intake. (Dkt. No. 71 at 15.) Plaintiff opines that none of the three inmates who were already within the prison population when treated for scabies (Inmates 58, 60, 62) were isolated. (Id. at 14-15; see also id. at 6 (Plaintiff's Opposition Memorandum).)

The court's review of this evidence (Dkt. No. 71-3 at 17-53) generally supports plaintiff's assessment, including the lack of evidence that any skin scrapings were taken for affirmative diagnosis. The court further notes that Inmate 59 ("April 2009"), was treated a second time for suspected or actual scabies in October 2009 (Dkt. No. 71-3 at 21), although this incident is not included in defendants' data (Dkt. No. 71 at 171). Similarly, Inmate 62 ("October 2009") was apparently treated in April 2009 for suspected or actual scabies (Dkt. No. 71-3 at 50- 53), although this incident does not appear to be included in defendants' data (Dkt. No. 71 at 171). Additionally, Inmate 60 ("July 2009") was subsequently treated, in August 2009, for cellulitis (a staph infection), although it appears that he initially sought medical treatment for this condition as early as May 2009 (Dkt. No. 71-3 at 32, 37.)

6. It is plaintiff's further sworn assessment of the evidence that, of the thirty-two incidents of actual or suspected MRSA in 2008 (Inmates 1 through 31 (Dkt. No. 71 at 169-70)), only one inmate (Inmate 2) was isolated, and this decision appears to have been made based on other medical concerns; sixteen of these inmates were treated by defendant Pilaczynski. (Dkt. No. 71 at 20-21, 178-90; see also id. at 172-77, 191-250; Dkt. No. 71-1 at 1-155.)

7. Plaintiff further avers that, in 2009, of the twenty incidents of suspected or actual MRSA infections (Inmates 32 through 49 (Dkt. No. 71 at 170)), none of the these inmates were medically isolated; eight of these inmates were treated by defendant Pilaczynski. (Dkt. No. 71 at 22-23; see also Dkt. No. 71-1 at 156-85; Dkt. No. 71-2 at 1-98.)*fn11

VI. Discussion

A. Dismissal of County

Plaintiff fails to allege any basis for holding defendant Solano County liable for

the medical decisions it delegated to defendant CFMG employees. It is undisputed that the County delegates all medical care and decisions at its detention facilities to CFMG and its employees. Moreover, as plaintiff alleges, the policies at issue are those of CFMG, and the question whether these policies were followed rests on the conduct of the defendant CFMG employees. The only challenged policy of the County itself, authorizing the administrativesegregation of prisoners for disciplinary reasons, is not relevant to the medical decisions challenged herein. Nor does plaintiff allege any basis for finding that the County remains liable for the actions of CFMG or its employees. See George v. Sonoma County Sheriff's Department, supra, 2010 WL 4117381 at *12 (absent binding authority that CFMG policies, practices and manuals would impose liability on the County Defendants, plaintiffs fail to raise a triable issue of fact as to County Defendants' liability based on actions by CFMG employees). Rather, this case does not appear to present any circumstances warranting a finding that the County continues to bear some liability notwithstanding its delegation to CFMG for the provision of inmate medical services. Cf. e.g. Ancata, supra, 769 F. at 704-705 (county remains liable for providing access to, and funding of, medical services); Hagan, supra, 2009 WL 728465 at *7 ("if CFMG employees commit a constitutional violation, and the moving force behind this violation was a County policy manifesting deliberate indifference to constitutional rights, then the County may be liable"). Therefore, the County of Solano should be dismissed from this action.

The court further finds that remaining defendants Dr. Kadevari and PA Pilaczynski, employees of CFMG, were at all relevant times performing a public function on behalf of Solano County, and were therefore state actors subject to liability under Section 1983. This conclusion is underscored by plaintiff's allegation that these defendants, as a matter of practice or custom, failed to adhere to CFMG's own policies. Private actors performing a public function "can only be liable under § 1983 if [p]laintiff[] raise[s] a triable issue of fact that the [alleged constitutional] violations occurred as a result of a policy, decision, or custom promulgated or endorsed by the private entity," or its delegees, George v. Sonoma County Sheriff's Department, supra, 732 F. Supp. 2d at 940.

Additionally, it appears, at all relevant times, that Dr. Kadevari was "Medical Director" at Solano County Jail (Dkt. No. 67 at 15), and was therefore acting in a policy-making and supervisory role, as well as directly providing medical services.

B. Alleged Deliberate Indifference to Plaintiff's Serious Medical Needs In order to demonstrate a violation of the Eighth Amendment based on inadequate

medical care, plaintiff must prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to obtain appropriate treatment could result in further significant injury or the unnecessary and wanton infliction of pain. A serious medical need includes an injury that a reasonable doctor or patient would find important and worthy of comment or treatment, a medical condition that significantly affects an individual's daily activities, or that causes chronic and substantial pain. See Wood v. Housewright, 900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989); McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

The dispositive question is not identification of the most appropriate course of treatment, but whether the chosen course was, in essence, criminally reckless. In Farmer v. Brennan, supra, 511 U.S. 825, the Supreme Court set a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Negligence is insufficient. Id. at 835. Civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37, 842. Rather, the official must both reasonably infer that there exists a substantial risk of serious harm and consciously disregard that risk "by failing to take reasonable measures to abate it." Id. at 837, 847. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842.

Deliberate indifference does not require that a physician altogether fail to treat an inmate. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). Even if some treatment is prescribed, a failure to competently treat a serious medical condition may constitute deliberate indifference in a particular case. Id. Additionally, mere delay in medical treatment without more is insufficient to state a claim of deliberate indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985). Rather, "the more serious the medical needs of the prisoner, and the more unwarranted the defendant's actions in light of those needs, the more likely it is that a plaintiff has established deliberate indifference on the part of the defendant." McGuckin, 974 F.2d at 1061.

Mere differences of opinion concerning appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Nonetheless, in cases involving complex medical issues, expert opinion will almost always be necessary to establish both the standard of care and the contours of deliberate indifference. Hutchinson v. United States, 838 F.2d 390, 392-93 (9th Cir. 1988). However, unless plaintiff can demonstrate a material issue of fact by providing expert evidence that the treatment he received may have been deliberately indifferent, summary judgment should be entered for defendants.

Defendants do not dispute that plaintiff presented "serious medical needs" to Dr. Kadevari and PA Pilaczynski. While the precise nature of those needs is addressed in detail below, for present purposes the court finds that the first, objective component of plaintiff's deliberate indifference claim has been satisfied.

It is axiomatic that a serious medical need, left untreated, poses a substantial risk of serious harm. An official acts with deliberate indifference if he recognizes such a risk and deliberately fails to take reasonable measures to abate it, Farmer v. Brennan, supra, 511 U.S. at 837, 847, thus satisfying the subjective component of an Eighth Amendment claim.

Both Kadevari and Pilaczynski immediately and aggressively treated plaintiff's presenting medical problems. Plaintiff's skin rash resolved within a week after plaintiff's initial appointment with Dr. Kadevari. After seven days following Dr. Kadevari's instructions -- daily use of Permithrin cream, taking Benedryl, daily change of clothing and bed linen -- plaintiff's rash resolved by June 27, 2008. Similarly, plaintiff's thigh abscess healed within three weeks after PA Pilaczynski opened and drained it,*fn12 prescribed ten days of antibiotic and pain medication, and instructed staff to change the dressing on the incision site daily. By November 18, 2008, nineteen days after the procedure, the site had healed.

Although plaintiff complains of residual scarring as a result of both skin ailments, he does not contend that he experienced any residual infections. Defendants have submitted the persuasive sworn opinion of Dr. Levin that the treatment provided by both Dr. Kadevari and PA Pilaczynski was not only "within the standard of care," but "appropriate" and "effective." (Dkt. No. 61 at 3, 4.) Consistently, the County argues that plaintiff "was treated promptly, recovered quickly and has no evidence of reinfection." (Dkt. No. 65-1 at 7.) In contrast, plaintiff has presented no evidence suggesting that the subject medical care was inherently inadequate.

Therefore, drawing all reasonable inferences in favor of plaintiff, Matsushita, 475 U.S. at 587, the court finds that both Dr. Kadevari and PA Pilaczynski treated plaintiff's skin ailments seriously, quickly, and effectively. Accordingly, defendants' motion for summary judgment on plaintiff's claim of deliberate indifference to his serious medical needs should be granted; and plaintiff's motion for summary judgment on this matter should be denied.

C. Failure to Protect Plaintiff from Substantial Risk of Serious Harm

A different analysis is triggered by plaintiff's claim that defendants failed to protect him from contracting scabies and an MRSA infection. An inmate may state an Eighth Amendment claim premised on the failure of correctional officials to remedy a condition of confinement that poses a substantial risk of harm to a prisoner's future health. Helling v. McKinney, 509 U.S. 25, 33 (1993). It is well accepted that such "substantial risks of harm" include "exposure of inmates to a serious, communicable disease," and "the mingling of inmates with serious contagious diseases with other prison inmates." Id. at 33, 34 (citations omitted). "[T]he risk of contracting MRSA has been specifically identified . . . as the type of condition which may form the basis of a medical indifference claim." Lopez v. McGrath, 2007 WL 1577893, *5 (N.D. Cal. 2007), citing Kimble v. Tennis, 2006 WL 1548950, at *1 (M.D. Pa. 2006), and Cunningham v. Belleque, 2006 WL 468377, at *3 (D. Or. 2006); accord, Wooler v. Hickman County, Kentucky, 2008 WL 5412826, *7 (W.D. Ky 2008) (alleged failure of jail officials to prevent plaintiff's exposure to MRSA infection satisfied objective component of Eighth Amendment claim).

Similarly, the weight of authority supports a finding that scabies presents a serious medical need, and that the risk of exposure to scabies presents a substantial risk of harm. See Hemphill v. Hochberg, 2008 WL 2668946, *5 (D. N.J. 2008) (allegations of the widespread presence of scabies "surely suggest that Plaintiff was exposed to an unreasonable risk of serious harm"); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977) (affirming trial court's finding that permitting "persons with contagious or communicable diseases, such as scabies . . . [to be] incarcerated and left, in the midst of other inmates, without medical attention for a month or more. . . . would violate the required standard of adequate medical services"); Mende v. Rainner, 1994 WL 90062, *2-3 (N.D. Cal. 1994) (dismissing with leave to amend for purpose of naming proper defendants upon finding that "plaintiff may well have cognizable claims for intentional exposure to a serious medical condition [scabies and/or lice] and the refusal to treat same rising to the level of deliberate indifference to serious medical needs"); Ciccone v. Sapp, 238 Fed. Appx. 487, *3 (11th Cir. 2007) (viewed in the light most favorable to plaintiff, "the facts . . . establish that scabies could be deemed objectively serious").*fn13

The conclusion that both MRSA and scabies are serious medical needs warranting protection from preventable exposure is underscored by CFMG's own written policies requiring that inmates "suspected of having scabies" be isolated and promptly treated (CFMG's "Policy and Procedure Manual" (Dkt. No. 71 at 121 (Exh. N)), and that inmates with any communicable diseases, including scabies and skin infections, obtain "the earliest possible identification and treatment," and be subject to "proper isolation techniques" in order "to prevent the spread of communicable diseases" (id. at 120). However, as set forth in the operative complaint, plaintiff contends that defendants "deliberately do not practice as a mandatory procedure to quarantine inmates with highly contagious diseases and deliberately place uninfected inmates with infected inmates." (Dkt. No. 11 at 7-8.) Thus, contends plaintiff, he contracted scabies and MRSA due to the failure of defendants to comply with their own policies requiring isolation of inmates previously exhibiting these diseases.

Before the court can assess whether defendants failed to protect plaintiff from contracting these diseases, it must determine whether the record evidence supports a reasonable inference that plaintiff did in fact have scabies and/or MRSA. Plaintiff was never tested for, or definitively diagnosed with, scabies or an MRSA infection. However, defendants concede that plaintiff may have had scabies (Dkt. No. 72 at 9), as noted by Dr. Kadevari when he initially examined plaintiff (Dkt. No. 71 at 35). This medical observation supports a reasonable inference that plaintiff had scabies, for which he was treated by Dr. Kadevari.

In contrast, defendants rely on the sworn statement of their medical expert, Dr. John Levin, M.D., that plaintiff did not have an MRSA infection because "bac[i]tracin was effective in resolving the infective process."*fn14 (Dkt. No. 61 at 3.) However, Dr. Levin's opinion does not rule out the possibility that bacitracin was prescribed precisely because PA Pilaczynski suspected that plaintiff had an MRSA infection. This inference is supported by PA Pilaczynski's notation, when he examined plaintiff on October 30, 2008, that plaintiff's "prior celly [was diagnosed] w/MRSA." (Dkt. No. 71 at 64.) Moreover, in his sworn declaration, plaintiff asserts that PA Pilaczynski tentatively diagnosed plaintiff with MRSA (Dkt. No. 71 at 28-29):

On 10-25-08, inmate Edgar Elrod was placed in my cell. He was diagnosed with MRSA. Mr. Elrod had continues (sic) drainage of bodily fluid. His dressing would continuesly (sic) be soiled and he had to change it periodically throughout the day. At that time I was not infected with MRSA and was not a suitable cohort. Mr. Elrod and myself shared a locked cell 23 hours a day. In this cell we shared toilet and sink facilities. I was not provided gloves or gowns nor allowed disinfected (sic) in the cell to clean everytime Mr. Elrod changed his dressing. Gloves, gowns and disinfected (sic) in the cell was considered contraband and subject to disciplinary action. Five days later I contracted MRSA . . .

On 10-30-08,*fn15 I was diagnosed with tentative MRSA and given an I&D. I was placed in the cell with [another inmate, not Mr. Elrod] who was uninfected and not a suitable cohort. I shared a locked cell with [this inmate] for 23 hours a day. We shared the same toilet and sink facilities. . . .

Plaintiff's sworn statement that he was provisionally diagnosed with MRSA is supported by the documented treatment provided by PA Pilaczynski, which was both aggressive (incision, drainage, and antibiotic), and extended (nearly three weeks of daily dressing changes by medical staff). Additionally, because the absence of any definitive diagnosis (both in plaintiff's case and in cases involving other inmates) was apparently due to defendants' failure to conduct diagnostic testing (despite the provisions of CFMG's "Policy and Procedure Manual" requiring "the earliest possible identification and treatment" of reportable communicable diseases (Dkt. No. 71 at 120, 122)), the absence of this evidence weighs against defendants when drawing reasonable inferences based on the record as a whole. Therefore, construing the evidence in plaintiff's favor, Matsushita, 475 U.S. at 587, the court finds it reasonable to infer that plaintiff had an MRSA staff infection, for which he was treated by PA Pilaczynski.

Accordingly, for purposes of summary judgment, the court finds it reasonable to infer that the serious medical needs for which plaintiff was treated were scabies and an MRSA staff infection. Plaintiff contends that he contracted these diseases as a result of defendants' failure to previously isolate other infected inmates. "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. at 842 (citation omitted).

The available evidence indicates that, as a matter of practice or custom, defendants failed to adhere to their own formal policies requiring the testing and isolation of inmates with suspected or diagnosed scabies and MSRA,*fn16 and that such practice or custom was executed and endorsed by defendant Dr. Kadevari, as Medical Director at Solano County Jail. Significantly, defendants do not assert that they acted in conformance with CFMG policies, but broadly contend that there was no practical reason for isolating inmates or imposing a "quarantine of the jail." Relying on the statistical data ordered disclosed by this court, defendants assert that there were only three instances of "reported or suspected ectoparasites" prior to plaintiff's medical appointment with Dr. Kadevari -- two instances in January (four months before plaintiff's appointment), and one instance in March (more than two months before plaintiff's appointment). (Dkt. No. 60-1 at 4-5.) Defendants conclude that "[t]hree reports of suspected or confirmed instances of ectoparasites does not constitute an epidemiological outbreak necessitating a quarantine of the jail." (Id. at 5, citing Defendants' Proposed Undisputed Facts 11 and 13 (not adopted by the court).) Stated differently, defendants assert that "[t]here was no medical necessity to quarantine inmates at the Solano County Jail suspected of carrying scabies in the 5 months in 2008 leading up to the June 20, 2008 treatment by Dr. Kadevari." (Id.)

Similarly, defendants contend that the instances of "suspected or confirmed MRSA/staph infections in 2008," prior to plaintiff's appointment with PA Pilaczynski in October 2008 -- two instances in July, one instance in August, one instance in September, and three instances in October -- "do not support any claim that the jail should have been [the] subject of a quarantine." (Id. citing Defendants' Proposed Undisputed Facts 12 and 14 (not adopted by the court).) Stated another way, defendants assert that "there is no qualified, competent medical testimony nor any chronological evidence from the jail medical provider to support any claim that a quarantine for MRSA staph infections should have been instituted at the Solano County Jail." (Id.)

Defendants conclude that "[t]here is . . . no evidence that either Defendant was presented with a medical situation that called for quarantine at the jail as to suspected scabies and/or MRSA staph. . . . . There was no medical indication that a quarantine was needed at the Solano County Jail either with respect to an alleged outbreak of scabies or the claimed contagious staph infections[,] neither of which is confirmed by the medical records or by competent medical testimony supporting Plaintiff's personal claims." (Id. at 10.)

This reasoning -- that there was no practical reason for isolating inmates or imposing a "quarantine of the jail" -- appears to ignore not only CFMG's written policies but the rationale underlying those policies. In notable contrast are the facts and holding in Shelley v. Bartels, 2006 WL 3834213 (W.D. Wis. 2006), in which the court granted the motion for summary judgment filed by defendant correctional officials, based on their compliance with the institution's own policies aimed at preventing the spread of communicable diseases among inmates. The district court reasoned (id. at *3):

Defendants had policies in place to prevent the spread of infectious diseases such as MRSA and scabies. All cases of suspected infectious skin conditions were treated free of charges. Inmates were educated on ways of preventing the spread of infection. Inmates' cells were disinfected and the laundry of infected inmates was separated from the regular laundry. Defendants did not act with callous disregard to any known risk to plaintiff of scabies or other dangerous conditions. Defendants are entitled to judgment as a matter of law on plaintiff's Eighth Amendment claim that they exposed him to scabies or other dangerous conditions.

In contrast, the instant scenario appears to support an intentional failure to comply with such policies, and hence potential liability under Monell, where defendants' challenged conduct represents the "standard operating procedure" by "an official with final policy-making authority," whose own acts "fairly represent official policy," and who "ratified the challenged conduct of a subordinate." Price v. Sery, supra, 513 F.3d at 966, citing Monell, 436 U.S. at 694, and Ulrich v. City & County of San Francisco, 308 F.3d 968, 984--85 (9th Cir. 2002).

However, in order to establish liability, plaintiff must demonstrate that the challenged conduct was the "actual and proximate cause" for plaintiff contracting the subject infections. See Lopez, supra, 2007 WL 1577893, at *10 (citation omitted); Wooler, supra, 2008 WL 5412826, at *12 (citations omitted) ("[a] § 1983 plaintiff cannot recover unless he or she establishes a causal connection between the challenged conduct of the defendants and the harm suffered"). In this regard, plaintiff asserts, "I can not specifically prove how I contracted scabies, I can, however, prove how I contracted staph -- through my roommate Edgar Elrod." (Dkt. No. 71 at 5 (citations omitted).) Defendants argue that the statistical data demonstrates that plaintiff is unable to prove that he contracted either communicable disease as a result of "any failure on the part of the jail medical staff. . . ." (Dkt. No. 72 at 9.)

The parties' disagreement regarding causation, as well as their underlying disagreement whether plaintiff actually contracted scabies or an MRSA infection, present genuine factual disputes requiring resolution by a trier of fact. As earlier noted, the party opposing a motion for summary judgment need not conclusively establish a material issue of fact in his favor, only that "the claimed factual dispute . . . require[s] a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630.

Accordingly, defendants' motions for summary judgment on plaintiff's claim that defendants failed to protect plaintiff from a serious risk of harm should be denied; and plaintiff's motion for summary judgment on this claim should also be denied.

VII. Conclusion

For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. Plaintiff's motion to dismiss (Dkt. No. 67) be granted; defendants Stanton, Dolan, Marsh, and Grapentine should be dismissed from this action.

2. Defendant Solano County should be dismissed from this action.

3. The motion for summary judgment filed by the County defendants (Dkt. No. 65) should be denied as moot.

4. The motions for summary judgment filed by defendants Kadevar and Pilaczynski (Dkt. No. 60), should be granted in part and denied in part; plaintiff's claim for deliberate indifference to his serious medical needs should be dismissed; plaintiff's remaining "failure to protect" claim should proceed to trial.

5. Plaintiff's motion for summary judgment (Dkt. No. 71) should be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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