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Rodney Womack v. Tim Virga

March 22, 2013

RODNEY WOMACK, PLAINTIFF,
v.
TIM VIRGA, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This case proceeds on plaintiff's Eighth Amendment claims pertaining to his conditions of confinement and his claim that defendants were deliberately indifferent to his serious mental health needs when they prevented him from being single-celled, causing him to suffer significant emotional and psychological distress. Pending before the court are the following motions: (1) defendants' Jochim, Stabbe, Sullivan, Van Dusseldorp, Virga, and Worrell's motion for summary judgment; (2) plaintiff's Rule 56(d) request that he be provided discovery prior to ruling on the motion for summary judgment; (3) plaintiff's motion to amend his opposition to defendants' summary judgment motion; (4) plaintiff's motion to reinstate allegations against dismissed defendant McElroy; and (5) plaintiff's motions for injunctive relief.

For the reasons stated below, it is recommended that defendants' motion be granted and plaintiff's motions be denied.

I. Plaintiff's Allegations

On December 24, 2009, plaintiff told his treating clinician, Dr. Steenman, that when he was confined to California State Prison-Corcoran (CSP-Corcoran) in 1989-1991, there were "gladiator wars," and that officers at that prison had "used tasers" on him and had put inmates in his cell who "sexually assaulted" him. Pl.'s Apr. 18, 2011 Mot. for Prel. Inj. ("MPI") ("Dckt. No. 1"), Ex. B. Plaintiff claimed he had been housed with fifteen cellmates and "felt vulnerable." Id. Dr. Steenman found plaintiff's report of past trauma "credible" and determined it was "likely" that plaintiff was experiencing post traumatic stress disorder (PTSD). Id. Dr. Steenman recommended a single-cell for one year, "if custody agreed," so that plaintiff would not have to spend his life term in administrative segregation for refusing cellmates. Id. Defendant Warden Virga allegedly "reviewed all documents and conversed with [plaintiff] and Steenman." Id. at 4. Defendant Virga allegedly agreed to grant plaintiff one-year of single cell status. Id.

On October 28, 2009, before the one-year had expired, a prison official allegedly informed plaintiff that he was eligible for double-celling. Id. at 5. The official allegedly told plaintiff that he could either accept a cellmate or go to administrative segregation. Id. When plaintiff objected, the prison official allegedly informed plaintiff that "the doctors don't run the [ ] prison" and that records indicated that plaintiff was eligible for double-celling. Id. Plaintiff refused double-celling and was placed in administrative segregation and the resulting loss of privileges. Id. at 5, 9-10.

While in administrative segregation, defendant psychologist Sullivan was assigned to be plaintiff's mental health clinician. Id. Plaintiff allegedly asked her to obtain copies of Dr. Steenman's diagnosis and single-cell recommendation to assist plaintiff in getting released from administrative segregation. Id. at 4-5. Defendant Sullivan allegedly refused, and told plaintiff she would not recommend single-cell status. Id. at 5. Subsequently, plaintiff filed an inmate appeal against Sullivan and she was removed as his clinician psychologist. Id.

Plaintiff claims he also filed an inmate appeal requesting that his single-cell status be reinstated. Id. at 8. Defendant psychologist Worrell allegedly assigned the appeal to defendant psychologist Stabbe. Id. Defendant Stabbe allegedly reviewed the December 2009 single-cell recommendation, but denied plaintiff's appeal without mentioning it. Id.

Plaintiff allegedly remained in administrative segregation, where he repeatedly received disciplinary actions for refusing cellmates. Id. at 9. He claims that the disciplinary actions were improper because defendant Jochim had falsely stated that compatible cellmates were available to double-cell with plaintiff. Id. As a result of the numerous disciplinary actions, plaintiff allegedly lost certain privileges, such as television, visits, and good time credits. Id. at 9. He claims that defendant Van Dusseldorp also denied him toiletries and writing materials. Id. at 10.

Plaintiff contends the real reason he was asked to accept a cellmate was because of limited bed space in the prison. Id. at 5.He believes that the defendants have conspired against him to deny him single-cell status and to harass him for refusing a cellmate, just for financial gain. Id. at 6-8.

According to plaintiff, he personally informed each of the defendants that if they attempt to force him to accept a cellmate, he will "unquestionably kill any cellmate before the cellmate has the opportunity to kill plaintiff," and that his past experiences "honestly warrant[ ] single cell status." Pl.'s May 6, 2011 Compl. ("Dckt. No. 8") at 12. Plaintiff requests injunctive relief in the form of an order allowing him to be single-celled indefinitely. Id. § V.

This action proceeds on plaintiff's claim that defendants Jochim, Stabbe, Sullivan, Van Dusseldorp, Virga, and Worrell ("defendants"), violated plaintiff's Eighth Amendment right to be free from cruel and unusual punishment by refusing to permit him to be housed in a single cell for the duration of his incarceration, causing him to suffer significant emotional and psychological distress.*fn1 Plaintiff also claims that defendants subjected him to cruel and unusual punishment by wrongfully issuing disciplinary write-ups for his refusal to accept a cellmate, thereby retaining him in administrative segregation and revoking his privileges. See Dckt. No. 1; Pl.'s May 6, 2011 Affidavit in Supp. of MPI ("Dckt. No. 7"); Dckt. No. 8. See also May 21, 2011 28 U.S.C. § 1915A Screening Order ("Dckt. No. 11").

II. Defendants' Motion for Summary Judgment

Defendants' motion, originally filed on February 17, 2012, was re-filed and re-served on August 3, 2012, in accordance with the court's July 25, 2012 order.*fn2 See Dckt. No. 65 (ordering defendants to re-serve the motion along with the notice to plaintiff required by Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and allowing plaintiff to either rely on his original opposition or file an amended opposition); Dckt. No. 66. Plaintiff filed an amended opposition on August 14, 2012.*fn3 Dckt. No. 69.

A. Plaintiff's Rule 56(d) Affidavit

After defendants moved for summary judgment, plaintiff filed a request to defer ruling on the summary judgment motion pending further discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. Dckt. No. 73. Rule 56(d) permits a party opposing a motion for summary judgment to request an order deferring the time to respond to the motion and permitting that party to conduct additional discovery upon an adequate factual showing. See Fed. R. Civ. P. 56(d) (requiring party making such request to show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition."). A Rule 56(d) affidavit must identify "the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). A Rule 56(d) affidavit must also identify "some basis for believing that the information sought actually exists." Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009).

Plaintiff claims that defendants have withheld relevant documents that he believes will "strengthen" his opposition to defendants' motion. Dckt. No. 73 at 3-4, 5. Specifically, plaintiff seeks: (1) Dr. Hewette' June 20, 2007 mental health evaluation, (2) Dr. Delgado's 2009 mental health evaluation, (3) the December 24, 2009 chrono for 365 days of single-cell status, (4) five disciplinary actions (referred to by plaintiff as "write ups") taken against him for refusing a cellmate during the months of July through December 2011, and (5) mental health records from July through December 2011. Id. ¶¶ 7, 9, 10-12. According to plaintiff, the more disciplinary actions he can produce based upon his refusal to accept a cellmate, the "stronger" his claims will be. Id. at 3-4. Plaintiff also claims that without all of his medical records, he cannot demonstrate that his significant mental health issues make him unsuitable for double-celling. Id. at 4. In opposition, defendants either produce the record requested by plaintiff or submit a declaration explaining that the requested record does not exist. See Dckt. No. 76, Defs.' Exs. AC.

Mental Health Records: Defendants produce Dr. Hewette's June 20, 2007 mental health evaluation, Dr. Delgado's 2009 mental health evaluation, and mental health records from July through December 2011. Dckt. No. 76, Defs.' Ex. B, Attach. 1; Ex. C, Attach. 1 & 2. None of these records demonstrate that plaintiff is not a suitable candidate for double-celling. Delgado's report of May 12, 2009 notes that the plaintiff "is currently in ASU for refusal to take a celly, which has reportedly been an ongoing issue for him with multiple 602 due to his concern for his own safety and the safety of others." Dckt. No. 76-3, p. 17 (Ex. C, Attach. 2). But the report in no way asserts that plaintiff's medical or mental condition prevents him from having a cellmate.

Hoffman's report of November 30, 2011 similarly notes plaintiff's safety concern that he not be double-celled with a cellmate and appears to reflect an assessment of whether plaintiff's mental health contributed to his rule violation report (referred to as "RVR") for refusal to accept a cellmate. Dr. Hoffman, a Senior Psychologists, concluded that "Mental disorder did not contribute to the behavior described in this RVR, although mental health factors are potentially involved. It is clear that his actions were willful, with full awareness of the reality and context of his behavior." Dckt. No. 76-2, p. 13 (Ex. B, Attach. 1).

In his reply, plaintiff claims that the Hewette mental health evaluation produced by defendants is "fabricated" because not every page includes plaintiff's name, Hewette's signature, and a confidentiality notice. Dckt. No. 78 at 4-5. According to plaintiff, this demonstrates that defendants are withholding or destroying documents. Id. Plaintiff's argument lacks merit. The pages of the evaluation referred to by plaintiff are boilerplate forms that do not require the information listed by plaintiff. Plaintiff has not called into question the authenticity of these records. Moreover, plaintiff advances no argument as to what the allegedly withheld documents would reveal, or how they would preclude summary judgment.

Plaintiff also claims that defendants intentionally withheld or destroyed three pages from Dr. Delgado's 2009 mental health evaluation because they lend credibility to plaintiff's need for single-cell status. Dckt. No. 78 at 4, 6. Plaintiff offers no specific facts regarding what information would be contained in the allegedly withheld pages. Nor does the text of Delgado's report reflect that something is missing from the narrative discussion. There are no sentences or phrases that are abruptly cutoff or incomplete text or any other indication that Delgado wrote more than what is shown in the exhibit. Moreover, defendants explained when they submitted the Delgado evaluation, that pages 2, 4, and 6 were blank and therefore, not reproduced for the court. Dckt. No. 76, Defs.' Ex. C. Plaintiff's contention that certain documents were withheld because they favor his position is based on mere speculation.

In responding to plaintiff's Rule 56(d) request, defendants also submitted plaintiff's Interdisciplinary Treatment Team mental health treatment plans dated July 26, 2011 and October 18, 2011, and his mental health progress notes for November 7, 10, 15, 17, 21, 24, 28, 30 and December 1, 5, 8, 13, 15, 22, 27, 31, 2011. Dckt. No. 76, Ex. B, Attach. 1. According to plaintiff, defendants failed to produce all of Dr. Hillary's progress notes. Dckt. No. 78 at 3. Contrary to plaintiff's contentions, however, he has not "unquestionably proven that defendants are withholding or ha[ve] destroyed" the progress notes. Dckt. No. 78 at 4. The July 26 and October 18 mental health treatment plans suggest that the purportedly "destroyed" progress notes never existed. Dr. Hillary's July 26, 2011 report notes that plaintiff's participation in his mental health treatment was "minimal" and that plaintiff had made no progress in participating in weekly one-on-one sessions. Dckt. No. 76, Ex. B, Attach. 1 at 48. The October 18, 2011 report states that given plaintiff's "refusals to attend 1:1 sessions, it is difficult to assess his mood symptoms." Id. at 41. These notes indicate that plaintiff was not fully participating in his mental health treatment, and provide ...


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