United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTHARTE JUDGE.
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the court is defendants’ motion for summary
judgment. (ECF No. 257.) For the reasons stated herein, the
undersigned recommends that defendants’ motion be
granted in part and denied in part.
Legal Standard for Summary Judgment
judgment is appropriate when it is demonstrated that the
standard set forth in Federal Rule of Civil procedure 56 is
met. “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a).
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
then-numbered Fed.R.Civ.P. 56(c)).
the nonmoving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party’s case.”
Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In
re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th
Cir. 2010) (citing Celotex Corp., 477 U.S. at 325);
see also Fed.R.Civ.P. 56 advisory committee’s
notes to 2010 amendments (recognizing that “a party who
does not have the trial burden of production may rely on a
showing that a party who does have the trial burden cannot
produce admissible evidence to carry its burden as to the
fact”). 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. Celotex Corp., 477 U.S. 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.
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. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of such a 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 such a
dispute exists. See Fed.R.Civ.P. 56(c);
Matsushita, 475 U.S. at 586 n.11. The opposing party
must demonstrate that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,
Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 630 (9th Cir. 1987), and that the dispute is genuine,
i.e., the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, see Wool v.
Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.
1987), overruled in part on other grounds,
Hollinger v. Titan Capital Corp., 914 F.2d 1564,
1575 (9th Cir. 1990).
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).
resolving a summary judgment motion, the court examines the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any.
Fed.R.Civ.P. 56(c). The evidence of the opposing party is to
be believed. See Anderson, 477 U.S. at 255. All
reasonable inferences that may be drawn from the facts placed
before the court must be drawn in favor of the opposing
party. See Matsushita, 475 U.S. at 587.
Nevertheless, inferences are not drawn out of the air, and it
is the opposing party’s obligation to produce a factual
predicate from which the inference may be drawn. See
Richards v. Nielsen Freight Lines, 602 F.Supp. 1224,
1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898,
902 (9th Cir. 1987). Finally, to demonstrate a genuine issue,
the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts. .
. . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no ‘genuine issue for trial.’”
Matsushita, 475 U.S. at 586 (citation omitted).
contemporaneous notice provided on September 13, 2010 (ECF
No. 28), plaintiff was advised of the requirements for
opposing a motion brought pursuant to Rule 56 of the Federal
Rules of Civil Procedure. See Rand v. Rowland, 154
F.3d 952, 957 (9th Cir. 1998) (en banc);
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.
action is proceeding on the fifth amended complaint filed
November 14, 2014. (ECF No. 171.) Plaintiff alleges that
defendants failed to provide him with adequate mental health
care for paraphilia, exhibitionism and voyeurism, in
violation of the Eighth Amendment. (Id. at 4.)
Plaintiff alleges that he has not been treated for these
conditions at any California Department of Corrections and
Rehabilitation (“CDCR”) institution in which he
has ever been incarcerated. (Id. at 9-13.) In other
words, the gravamen of this action is plaintiff’s claim
that CDCR fails to provide treatment for these conditions.
Plaintiff requests injunctive relief in the form of an order
directing defendants to provide him with treatment for these
conditions in a safe and therapeutic environment.
(Id. at 12, 14.) Plaintiff also seeks money damages.
(Id. at 15.)
defendants in this action are Howlin, Belavich, Sirkin, Wynn,
Silva and Spearman. At the time plaintiff filed the fifth
amended complaint, defendant Belavich was the Deputy Director
of the CDCR Statewide Mental Health Program. The other
defendants are employed at the Correctional Training Facility
(“CTF”), where plaintiff was incarcerated when he
filed the fifth amended complaint. Plaintiff is still
incarcerated at CTF.
Legal Standard for Eighth Amendment Claims
succeed on an Eighth Amendment claim predicated on the denial
of medical care, or mental health care, a plaintiff must
establish that he had a serious medical need and that the
defendant's response to that need was deliberately
indifferent. Jett v. Penner, 439 F.3d 1091, 1096
(9th Cir. 2006); see also Estelle v. Gamble, 429
U.S. 97, 106 (1976). A serious medical need exists if the
failure to treat the condition could result in further
significant injury or the unnecessary and wanton infliction
of pain. Jett, 439 F.3d at 1096. Deliberate
indifference may be shown by the denial, delay or intentional
interference with medical treatment or by the way in which
medical care is provided. Hutchinson v. United
States, 838 F.2d 390, 394 (9th Cir. 1988). To act with
deliberate indifference, a prison 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 v. Brennan, 511 U.S. 825,
837 (1994). Thus, a defendant is liable if he knows that
plaintiff faces “a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures
to abate it.” Id. at 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.
physician need not fail to treat an inmate altogether in
order to violate that inmate's Eighth Amendment rights.
Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th
Cir. 1989). A failure to competently treat a serious medical
condition, even if some treatment is prescribed, may
constitute deliberate indifference in a particular case.
well established that mere differences of opinion concerning
the 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).
Serious Medical Need
argues that he suffers from paraphilia, exhibitionism and
voyeurism. Defendants first argue that paraphilia is not
included within the diagnostic categories of serious mental
illnesses that would allow transfer of an inmate to the
Department of State Hospitals (“DSH”), and DSH
would neither accept nor treat plaintiff for paraphilia.
(See ECF No. 190-1 at 31.)
undersigned understands paraphilia to be an
“umbrella” term that includes people with
abnormal sexual behaviors, such as exhibitionism and
voyeurism. See Yancy v. Voss, 2011 WL 1532323 at *2
(C.D. Cal. 2011) (containing DSM definition of paraphilia).
In other words, plaintiff’s alleged paraphilia includes
exhibitionism and voyeurism, the two alleged conditions on
which plaintiff’s Eighth Amendment claim is based.
Plaintiff does not seriously dispute that paraphilia is not a
separate condition requiring separate treatment. For these
reasons, the undersigned does not separately consider
plaintiff’s alleged paraphilia in the analysis of
plaintiff’s Eighth Amendment claims.
next argue that plaintiff has latent exhibitionism and latent
voyeurism, which do not qualify as serious medical needs. In
support of this claim, defendants cite the declaration of R.
Schwartz, a psychologist at CTF. (ECF No. 257-10.) Dr.
Schwartz served as plaintiff’s clinician at CTF from
June 2, 2015, until September 18, 2015. (Id. at 1.)
In relevant part, Dr. Schwartz states,
3. I am aware of a limited number of CDCR programs designed
to address and treat indecent exposure (IEX) behavior in
inmates. IEX behavior in prison poses a significant risk to
the inmate exhibiting that behavior, as it may lead to
violent reprisals against the inmate by other inmates. Due to
this risk, CDCR’s IEX treatment programs are designed
for inmates who exhibit IEX behavior while incarcerated.
4. To my knowledge, plaintiff has never exposed himself while
incarcerated. While plaintiff’s criminal history
exhibits tendencies toward voyeurism and exhibitionism,
specifically involving young women, plaintiff has not acted
on these tendencies while incarcerated. It is my opinion that
plaintiff’s proclivities do not affect his day-to-day
life in prison, as there is no ability for plaintiff to act
on these specific proclivities in a prison setting.
5. To my knowledge, there is no specific treatment available
within CDCR for latent paraphilia, including voyeurism and
exhibitionism where the inmate-patient does not express
symptoms. To provide such treatment, CDCR psychologists would
require specific additional training on how to identify and
treat these disorders.
6. I am aware that the Department of State Hospitals (DSH)
has two units that deal with specialized sexual behavior
treatment: the Mentally Disordered Offender (MDO) Unit and
the Sexually Violent Predator (SVP) Unit. These specialized
treatment programs are run by DSH as a condition of parole
after an inmate’s time has been served within CDCR. MDO
and SVP eligibility is determined by separate evaluation by
independent evaluators or by court order.
(Id. at 1-2.)
Dr. Schwartz’s declaration, defendants argue that
because plaintiff’s exhibitionism and voyeurism are in
remission, he does not require treatment for these
conditions. Defendants argue that if plaintiff exhibited
tendencies toward indecent exposure, he could be placed in a
specific treatment program. Accordingly, defendants argue,
plaintiff cannot show the existence of a serious medical need
that has not been addressed.
opposition, plaintiff admits that he has not “outwardly
exhibited symptoms of exhibitionism and voyeurism while
incarcerated.” (ECF No. 269 at 5.) However, he argues
that these conditions qualify as serious medical needs
because they require treatment despite being in remission. In
support of this argument, plaintiff has attached two
psychological reports to his opposition.
first report, prepared by Dr. Mohandie, is dated April 25,
2001. (Id. at 36.) This report was apparently
prepared for plaintiff’s counsel during criminal
proceedings. (Id.) This report describes
plaintiff’s history of voyeurism and exhibitionism.
(Id. at 45-46.) All of the incidents of voyureism
and exhibitionism occurred while plaintiff was not
incarcerated. (Id.) Dr. Mohandie diagnosed plaintiff
with several mental disorders, including voyeurism and
exhibitionism. (Id. at 55.) Dr. Mohandie recommended
that plaintiff receive psychological treatment for voyeurism
and exhibitionism. (Id. at ...