O'Keefe v. Brown

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTHARTE JUDGE.

         I. Introduction

         Plaintiff 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.

         II. Legal Standard for Summary Judgment

         Summary 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).

         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 then-numbered Fed.R.Civ.P. 56(c)).

         “Where 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.

         Consequently, 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).

         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 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).

         By 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. 1988).

         III. Plaintiff’s Claims

         This 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.^[1] (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.)

         The 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.

         IV. Legal Standard for Eighth Amendment Claims

         To 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.

         A 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. Id.

         It is 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).

         V. Discussion

         A. Serious Medical Need

         Plaintiff 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.)

         The 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.

         Defendants 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.)

         Citing 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.

         In his 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.

         The 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 ...