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Soares v. Paramo

United States District Court, S.D. California

March 29, 2017

MANUEL M. SOARES, CDCR #F-39579, Plaintiff,
DANIEL PARAMO, Warden; G. STRATTON, Associate Warden; M. FLYNN, Correctional Counselor; E. PHAN, Psychologist; and LAURA LEARD, Personal Representative for the Estate of Jan Hansson, Defendants.


          Hon. Barry Ted Moskowitz, Chief Judge

         MANUEL M. SOARES (“Plaintiff”), a prisoner currently incarcerated at the California Health Care Facility in Stockton, is proceeding pro se and in forma pauperis (“IFP”) in this civil action pursuant to 42 U.S.C. § 1983.

         In his Complaint (ECF No. 1), and in a Supplemental Complaint (ECF No. 7), Plaintiff contends Defendants violated his Fourteenth Amendment rights in 2012 when they transferred him involuntarily from Richard J. Donovan Correctional Facility (“RJD”) to Atascadero State Hospital (“ASH”), and then retaliated against him after he returned to RJD in 2013 for exercising his First Amendment right to petition for redress regarding the transfer. See ECF No. 1 at 8, 13; ECF No. 7 at 9-10.

         I. Procedural History

         On August 5, 2014, the Court granted Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) and screened both Plaintiff's Complaint and his Supplemental Complaint before service as required by 28 U.S.C. § 1915(e)(2) and § 1915A(b) (ECF No. 9). The Court sua sponte dismissed Warden Paramo without prejudice as a party on respondeat superior grounds, see ECF No. 9 at 7-8, but found Plaintiff's due process and retaliation allegations against Defendants Stratton, Flynn, Hansson, [1] and Phan sufficient to state plausible claims upon which relief may be granted. Id. at 9 (citing Carty v. Nelson, 426 F.3d 1064, 1074 (9th Cir. 2005); Vitek v. Jones, 445 U.S. 480, 494-97 (1980); Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012)).

         On September 8, 2015, the Court denied Defendants' Motion for Summary Judgment based on claims that Plaintiff had failed to exhaust his administrative remedies before filing suit pursuant to 42 U.S.C. § 1997e(a) (ECF No. 34). Defendants filed an Answer on September 22, 2015 (ECF No. 35), and soon after, on October 9, 2015, U.S. Magistrate Judge Ruben B. Brooks issued a Scheduling Order Regulating Discovery and other Pre-trial Proceedings (ECF No. 43). On May 25, 2016, the Court granted Plaintiff leave to join additional parties and/or amend his pleadings, and denied without prejudice his subsequent Motion for Summary Judgment (ECF No. 55) as premature in light of his anticipated amendment (ECF No. 61). However, Plaintiff later decided to stand on his original pleadings (ECF Nos. 67, 68). The discovery period closed on August 15, 2016 (ECF No. 43 at 3).

         On August 16, 2016, one day after the close of discovery and approximately one month before the September 12, 2016 pre-trial motion cut-off date, Defendants' counsel filed their initial notification of Hansson's February 23, 2016 death (ECF No. 83).

         On September 9, 2016, counsel for the surviving Defendants (Phan, Flynn, and Stratton) filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 (ECF No. 84).[2] On September 13, 2016, the Court notified Plaintiff of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and set a briefing schedule (ECF No. 85).

         On October 4, 2016, the Court granted Plaintiff's subsequent request to “recall” his previously filed Motion for Summary Judgment (ECF No. 55), and granted Defendants an opportunity to file an Opposition (ECF No. 89). Plaintiff filed his Opposition to Defendants' Motion on October 6, 2016 (ECF No. 90), and Defendants filed their Opposition to Plaintiff's Motion on October 21, 2016 (ECF No. 93). After no replies were submitted, on November 4, 2016, the Court determined no oral argument was required, and took both Plaintiff's and Defendants' Motions for Summary Judgment under submission for resolution on the papers pursuant to S.D. Cal. CivLR 7.1.d.

         Having carefully considered the record as submitted, the Court denies Plaintiff's and Defendants Phan and Stratton's Motions for Summary Judgment and partially grants and denies Flynn's motion. Genuine disputes of material fact exist as to both Plaintiff's due process and retaliation claims, and as discussed below, they require resolution at trial.

         II. Factual Background

         A. Plaintiff's Claims[3]

         On November 5, 2012, Plaintiff contends he was “called into Defendant Phan's office and asked to sign a referral form to commit him to a mental hospital.” See ECF No. 1 at 6 ¶ 11 & Ex. A at 21; ECF No. 90-1(hereafter “Pl.'s Dep.”) at 38-39, 41-43. Dr. Phan is a RJD psychologist. ECF No. 1 at 2, 5 ¶ 7. Plaintiff “refused to sign the document and became embroiled in a verbal conflict with [] Phan, ” who together with now deceased Defendant Hansson, a RJD psychiatrist, had “prior to this date ... attempted to entice Plaintiff into voluntarily going to ASH.” Id. at 5-6 & Ex. A at 21, Mental Health Due Process Chrono (“CDCR 7480”), dated Nov. 5, 2012.

         On November 16, 2012, Plaintiff claims he was called into Defendant Flynn's Office, and “informed that ... Flynn was going to take him to a Vitek hearing.” ECF No. 1 at 6 ¶ 12; Pl.'s Dep. at 56-59.[4] Flynn is a Correctional Counselor at RJD. ECF No. 1 at 4 ¶ 6; Pl.'s Dep. at 58. Plaintiff claims Flynn “never interviewed or evaluated [him]” before the November 16, 2012 hearing, and that he was “given no written notice before the hearing.” ECF No. 1 at 6 ¶ 12; Pl.'s Dep. at 56-57. Plaintiff alleges Flynn was introduced as his “staff assistant” at the hearing, but Flynn “did not say one word to defend [him], ” “did not act in [his] best interest, ” and instead, “was simply present.” ECF No. 1 at ¶ 13; Pl.'s Dep. at 60-61, 65-66.

         Plaintiff alleges Defendant Stratton, a RJD Associate Warden, “was the fact-finder decision maker” at the November 16, 2012 Vitek hearing, and at its conclusion, Stratton “informed Plaintiff that he was ‘going to have to go with the doctor's recommendations' and commit [him] to a mental hospital.” ECF No. 1 at 7 ¶ 14; Pl.'s Dep. at 60-61, 67. Plaintiff further contends that “at no time whatsoever was [he] given a written statement as to evidence relied on” or the “reasons for th[e] transfer.” ECF No. 1 at 7 ¶ 14; see also Ex. D at 4, Classification: ICC Vitek Hearing (“CDC-128G”) dated Nov. 16, 2012; Pl.'s Dep. at 56-57, 64-65.

         Several days later, Plaintiff alleges he continued to object to Dr. Hansson and expressed his concerns related to the commitment. Specifically, Plaintiff told Hansson that he had spoken to Dr. Phan, and had opposed commitment “many times, ” on grounds that his brother, whom he had seen only once in ten years, was coming to visit from another country, and because he would be “devastated” to lose his culinary job at RJD. ECF No. 1 ¶ 15; Pl.'s Dep. at 42-44, 52, 66. Dr. Hansson allegedly told Plaintiff he would speak with Phan, and later indicated they would “hold off on []his transfer.” ECF No. 1 ¶ 15; Pl.'s Dep. at 67. However, on November 26, 2012, Phan informed Plaintiff that after further consultation, they decided to move forward with his commitment. Id. ¶ 16; see also Ex. B at 28, Interdisciplinary Progress Notes (“CDCR Form MH-7230A”), dated Nov. 26, 2012.

         Plaintiff was “transferred and committed” to ASH on November 27, 2012. See ECF No. 1 at 8 ¶ 17; Pl.'s Dep. at 67. After arrival, Plaintiff continued to object to his commitment, and expressed his desire to return to RJD. ECF No. 1 at 8 ¶ 17. On December 11, 2012, Plaintiff was assessed by a Counseling Psychologist at ASH, who recommended no diagnostic changes, but also noted that “[b]ased on [Plaintiff's] past history and current reporting of symptoms[, ] his depression [could] be managed without issue in corrections.” Id., & Ex. C at 30-31.

         A week later, on December 17, 2012, Plaintiff was “transferred back” to RJD where he was “placed in administrative segregation [“ASU”] due to no available beds.” Id. ¶ 19. After his release from segregation, Plaintiff alleges to have begun “researching Vitek procedures, ” to have “written letters to the Prison Law Office” complaining that his commitment lacked the “appropriate procedural protections, ” and to have filed a CDCR 602 administrative appeal, Log No. RJD HC 13047781, on February 6, 2013, challenging the decision to commit him. Id. at 8, ¶¶ 19-20 & Exs. D & E at 32-50. On November 5, 2013, Plaintiff alleges Log No. RJD HC 13047781 was “denied at the highest level and exhausted.” Id. at 12 ¶ 27 & Ex. E at 44-62.

         In his Supplemental Complaint, Plaintiff contends that on February 27, 2013, he informed Dr. Hansson that he was “filing a complaint against him and Defendant Phan, ” and that he “wanted another psychiatrist appointed to [treat] him.” See ECF No. 7 at 2 ¶ 2. Plaintiff claims Hansson was “irate, ” left his cell, and returned 15-20 minutes later with a correctional officer and a “prepared CDC 7225 Form (a Refusal of Examination and/or Treatment), ” which indicated Plaintiff was “refusing to take his medication.” Id. ¶ 3; Pl.'s Dep. at 47-49. Plaintiff claims Hansson told Plaintiff to sign the CDC 7225, but Plaintiff “crossed X out Defendant Hansson's writing and began to write down his reason why he did not want to see Defendant Hansson.” Id. Plaintiff then claims Hansson “ordered Correctional Officer S. Masterson to confiscate [the CDC 7225] and they both left.” Id. at 3 ¶ 4; Pl.'s Dep. at 48-51. Plaintiff contends Hansson “ended up shredding” the CDC 7225, on which Plaintiff had written “Due to a conflict of interest, I don't want to see this doctor anymore.” Pl.'s Dep. at 50. Plaintiff denies telling Hansson he “want[ed] out of mental health, ” and claims he “never told [Hansson] [he] didn't want to take medication.” Id. at 49.

         A week later, when Plaintiff “noticed his blue pill for his depression was not being administered, ” he was “informed by the nurse it was discontinued.” ECF No. 7 at 3 ¶ 5. Plaintiff requested a review of his medical file and alleges to have discovered “falsified medical documentation” related to his February 27, 2013 interaction with Hansson. Id. Specifically, Plaintiff alleges Hansson “destroy[ed] the original CDC 7225 Form” presented to him, and “falsified documentation” in his medical file indicating he had refused medication. Id. at 3-6, 11-12, ¶¶ 5-6, 11-12; Pl.'s Dep. at 48-51.

         Plaintiff alleges to have filed a CDCR 602 administrative appeal, Log No. RJD HC 13048401, requesting a “criminal investigation” related to the incident. ECF No. 7 at 3-6 ¶¶ 5-6, 11-12 & id. at 46-50, Pl.'s “602 Exhibit B.” On May 15, 2013, Plaintiff was interviewed regarding Log No. RJD HC 13048401, “appointed another psychiatrist and … placed back on his medication.” Id. at 4 ¶ 6. Because prison officials “failed to investigate” his claims related to Hansson's alleged falsification of his medical records, however, Plaintiff alleges he “resubmitted this appeal requesting an investigation.” Id.

         Approximately two weeks later, on June 6, 2013, Plaintiff claims he was called into the Program Office and informed by Lt. Pendleton that he was suspected of writing “graffiti ... against a mental health clinician.” Id. ¶ 7; Pl.'s Dep. at 46. Four hours after, Plaintiff was “placed into administrative segregation” based on his allegedly “inappropriate behavior.” Id. at 4 ¶ 8; id. at 20 “CDC 114-D, ” dated June 6, 2013; Pl.'s Dep. at 46-47. Plaintiff was issued another CDC 114-D on August 1, 2013, informing him that he was “being retained” in segregation “pending ICC review for appropriate program and housing needs, ” and based in part on a confidential memorandum dated June 7, 2013, which implicated him. ECF No. 7 at 4-5 ¶¶ 8-10; id. at 22.

         Plaintiff claims he remained in segregation for six months “without any evidence or disciplinary write up, ” and based “on a false premise of ‘inappropriate behavior on a mental health clinician.'” Id.; Pl.'s Dep. at 54-55. Plaintiff further contends “these actions were deliberately planned” for “retaliatory purposes” due to his having filed CDCR appeal Log Nos. RJD HC 13047781 and RJD HC 13048401. Id. at 9-10, ¶¶ 20-21. Plaintiff claims he was eventually transferred from RJD's ASU to “another institution” on December 11, 2013. (ECF No. 7 at 8; ECF No. 55 at 45.)

         B. Defendants' Claims

         Dr. Phan, a licensed psychologist, was Plaintiff's clinician, and a member of his Interdisciplinary Treatment Team (“IDTT”) at RJD from September 6, 2012, through November 26, 2012, when he was transferred to ASH. See ECF No. 84-8 (hereafter “Phan Decl.”) at 1 ¶¶ 1-2. In that capacity, Phan treated Plaintiff, who had been transferred from a “basic level” of mental health care (CCCMS) to the “EOP” or Enhanced Outpatient Program, which provided inmates with a “higher level” of mental health care, “approximately once a week, every week.” Id. at 2 ¶¶ 2, 4. During that time, Plaintiff was diagnosed with a “major depressive disorder, recurrent, severe without psychotic features.” Id. ¶ 3. Phan claims Plaintiff was “angry and continually depressed, ” that he “cr[ied] during the majority of their sessions together, had pent-up rage, ” “made statements of passive suicidal ideation, ” had a criminal “history of impulsive behaviors, ” and “was not improving despite long-term treatment.” Id. ¶ 3. Phan claims that based on her training, “[t]he combination of [Plaintiff's] limited family support, continual worsening depression, anger, passive suicidal ideation, and history of impulsivity” increased the risk that he would harm himself or others. Id. ¶ 4. For “these reasons alone, ” Phan recommended Plaintiff “be referred for an involuntary transfer” to the Department of Mental Health (“DMH”). Id. at 2 ¶ 4.

         Phan met with Plaintiff, together with the rest of his treatment team, on November 5, 2012, to discuss his mental health, their “recommendation for further treatment, ” and to request that he voluntarily agree to a transfer to ASH. Id. at 3 ¶ 5. Dr. Phan claims she “offered [Plaintiff] a CDCR Form 7480 ‘Inmate/Patient Response'” form which explained the IDTT's recommendation for further psychiatric treatment, and which also requested his consent to the transfer. Phan claims Plaintiff “understood what was said, ” but “continued to argue that he did not need to go to DMH, that the IDTT was making a mistake.” Id. at 4 ¶ 8. Therefore, Plaintiff “disagreed with the recommendation, ” “refused to voluntarily go to ASH, ” and “would not sign the Form 7480.” Id. at 4-5 ¶¶ 5, 8. Phan claims that she, “along with Licensed Clinical Social Worker (“LCSW”) H. House, [5]signed the Form 7480 and noted Plaintiff's refusal to sign.” Id.; see also Ex. A.

         As Plaintiff's clinician, Dr. Phan further claims to have also filled out a “Form 128-B1 Notice of Vitek Hearing, ” on November 5, 2012, and to have given it to House, who as the “coordinator for inmate transfers, ” was “responsible for ensuring that the patient receive[d] a copy of the form through either personal delivery or delivery through the institutional mail.” Id. at 3-4 ¶ 7 & Ex. B; see also ECF No. 84-10 (hereafter “Stratton Decl.”) at 3 ¶ 6. Phan claims that while she was a member of Plaintiff's IDTT, the Vitek committee “plans the hearing date, ” she “was not part of that committee, and [she] did not participate in the Vitek committee's decision.” Phan Decl. at 3 ¶ 7; Stratton Decl. at 3-4 ¶ 8. However, as a member of Plaintiff's IDTT, Dr. Phan believed Plaintiff “fit the criteria” required to justify an involuntary transfer. Phan Decl. at 4 ¶ 9; Stratton Decl. at 3 ¶ 7.

         Because Plaintiff objected to his transfer to DMH, he “invoked his right to a due process hearing, ” governed by Vitek, and as provided by the California Department of Corrections and Rehabilitation's Operations Manuel (“DOM”), section 62030.4.2. See ECF No. 84-10 (hereafter “Stratton Decl.”) at 4 ¶ 9. Defendant Stratton, as RJD's Chief Acting Deputy Warden presided over Plaintiff's Vitek hearing, which was held on November 16, 2016. See Id. at 2, 3 ¶¶ 2, 8. Dr. D. Dumas, PsyD, a RJD psychologist who was not treating Plaintiff, also served on the Committee, as did Correctional Counselor II J. Stovall, who served as the recorder.[6] Id. at 3-4 ¶ 8. Defendant Flynn, another Correctional Counselor, was assigned as Plaintiff's staff assistant for the hearing. Id. at 4 ¶ 8; see also ECF No. 84-6 (hereafter “Flynn Decl.”) at 1-2 ¶¶ 1-2. Defendant Stratton claims Plaintiff was given “more that 72 hours notice of this hearing prior to it occurring, ” and claims that this is “shown in the 128-B1 form dated November 5, 2012, ” which he further attests was signed by Phan, and delivered to LCSW House, for delivery to Plaintiff. See Stratton Decl. at 3, 4 ¶¶ 6, 9 & Exs. B & C.

         Defendant Flynn claims it was not until “the morning of November 16, 2012, ” that he was “inform[ed] … [he] was being assigned as [Plaintiff's] staff assistant, ” and he admits “[t]his was the first time [he] was aware of a Vitek hearing.” Flynn Decl. at 2 ¶ 2. Flynn claims that as staff assistant, “he had no input in the … committee's decision, ” “did not schedule the Vitek hearing, ” and was not asked to give Plaintiff “any notice of the hearing.” Id. at 4 ¶ 8. Instead, Flynn understood his role was to assist Plaintiff in “collecting, presenting and confronting evidence at the hearing.” Id. at 2, 4 ¶¶ 2, 7. Therefore, Flynn “had [Plaintiff] removed from his cell, ” “informed him that [he] would be his staff assistant, ” “met with him to prepare, ” and escorted him to the hearing. Id. at 2, 3 ¶¶ 3, 6. Defendant Flynn attests that Plaintiff “did not request any witnesses or documentary evidence, ” did not object on grounds “that he was not given notice of the hearing, ” and “did not say that he was otherwise unprepared to go forward with the Vitek hearing.” Id. at 2-4 ¶¶ 3, 6-7; see also Stratton Decl. 4 ¶ 11. To the contrary, both Flynn and Stratton claim Plaintiff “specifically rejected … offer[s] to assist, ” and told Flynn he “did not want a staff assistant, ” because he “did not agree that he needed or would benefit from a transfer to DMH” and was “confident” he would not be transferred. Id. Flynn contends he “still attempted to perform [his] duties, ” but Plaintiff “continued to rebuff [his] efforts to help.” Id. Flynn further claims that during the hearing, Stratton “explained” to Plaintiff why he was brought to the Vitek hearing, “what evidence … caused the hearing to be convened, ” what the committee's decision was, and why they reached their conclusion. Flynn Decl. at 3 ¶ 4. Flynn claims Stratton “would always stop after making a brief statement, ” and ask Plaintiff if he understood. Flynn claims Plaintiff “acknowledged that he did.” Id.

         Defendant Stratton claims Plaintiff's “psychiatric records were available” to the Vitek committee, and that he, Dumas, and Stovall “reviewed those records and [Plaintiff's] psychiatric status and treatment needs.” Stratton Decl. at 4 ¶ 9. Stratton claims the Vitek committee reviewed Plaintiff's IDTT evaluations, his “need of in-patient psychiatric treatment, ” and the recommendation for transfer based on his “major depressive disorder, ” which was “recurrent, [and] sever[e] without psychotic features.” Id. ¶ 10. The Committee noted Plaintiff's “anger, ” “continual[] depress[ion], ” lack of improvement “despite long-term treatment within CDCR, ” and his “statements of passive suicidal ideation, ” which Stratton “understood to mean” that he felt “it would be better if he were no longer alive.” Stratton Decl. at 4 ¶ 10.

         During the Vitek hearing, Plaintiff continued to disagree with the transfer. Id. at 4-5 ¶ 11. Specifically, Plaintiff argued that while he was “a little depressed” due to his mother's death, he “just needed to talk to someone.” Id.; see also Ex. C. Plaintiff further claimed that he would remain depressed no matter where he was, that hospitalization would be costly, and not “beneficial” to him; therefore, he preferred to stay at RJD where he “had not gotten any write-ups, ” and had “a good job [he] d[idn']t want to lose.” Id. However, Defendant Stratton, together with Dr. Dumas, “agreed with the IDTT's recommendation and determined it was in [Plaintiff's] best interests to be transferred to the DMH for further mental health treatment.” Id.

         Stratton contends he directed Defendant Flynn to “meet with [Plaintiff] after the hearing to assist [him] with understanding the committee's decision, ” and “advise [Plaintiff] of his appeal rights.” Stratton Decl. at 5 ¶ 12. Flynn claims Plaintiff refused to meet with him after the hearing. Flynn Decl. at 3 ¶ 6. Stratton further claims the Vitek committee's written decision was “reflected in [a] 128-G form dated November 16, 2012, ” which is “not a confidential document, ” “was readily available, ” and “would have been provided to [Plaintiff].” Stratton Decl. at 5 ¶ 12 & Ex. C.

         Pursuant to the Vitek committee's November 16, 2012 decision, Plaintiff was transferred to ASH “on or about November 27, 2012.” Id. at 3 ¶ 8; Phan Decl. at 4 ¶ 10. Defendant Phan claims that despite Plaintiff's objections, his medical records from ASH show his mental health “actually improved during his stay there.” Phan Decl. at 4 ¶ 10 & Ex. C.

         After his discharge from ASH on December 17, 2012, Plaintiff was transferred back to RJD and placed in the ASU, pending clearance for a housing placement by the Institutional Classification Committee (“ICC”). Stratton Decl. at 5 ¶ 13. Plaintiff was eventually “given a housing assignment on Facility A, ” where Dr. Phan worked. Phan Decl. at 5 ¶ 12.

         Upon his return, Dr. Phan claims Plaintiff “began exhibiting harassing and hostile behavior” toward her. Id. Specifically, on December 20, 2012, Phan claims an ASU clinician named Poage warned her Plaintiff “was harboring a great deal of anger towards [her], ” and that he was being transferred back to Facility A. Poage alerted “various staff and her superiors about her concerns for [Phan's] safety, ” and recommended Plaintiff not be assigned to Dr. Phan “because of his rage and hostility toward [her].” Id. On January 3, 2013, Phan claims Plaintiff “made verbal comments to [her] threatening [her] license, ” and was “hostile” and “aggressive to [her] face.” Id. ¶ 17. Phan also claims that on unspecified occasions, Plaintiff “would give [her] angry looks, ” and “leered at [her] when she walked by, ” or when he “saw [her] in the [Mental Health Services] building while [she] retrieved [her] inmate-patients from the waiting area.” Id. On one occasion, Phan claims Plaintiff entered a group-therapy session she was conducting with other patients, and said, “Oh, wrong room.” Id. ¶ 18. Phan believed the interruption “could not have been an innocent mistake, ” was meant to “intimidate” her, and stemmed from Plaintiff's anger related to his transfer to ASH. Id. ¶¶ 17-18.

         Other clinicians also “noted [Plaintiff's] fixation toward [Phan]” upon his return to Facility A. Id. ¶ 15. For example, D.L. Daub, a Senior Psychologist and Dr. Phan's Supervisor, interviewed Plaintiff in March 2013, and reviewed his mental health records. See ECF No. 84-4 (hereafter “Daub Decl.”) ¶¶ 1-2. Daub claims Plaintiff's records “contain multiple entries documenting [Plaintiff's] anger and vituperation toward Dr. Phan, ” and include “notes taken during psychiatry sessions with [Defendant] Hansson on January 3 and January 30, 2013, ” during which Plaintiff “repeatedly referred to Dr. Phan as a ‘fucking gook.'” Id. ¶ 4. Daub claims Plaintiff again referred to Dr. Phan as a “gook” both during a March 23, 2013 interview with Dr. Kaftarian, the Chief Psychiatrist, and again during an interview with him on March 29, 2013, related to Plaintiff's “inmate appeal.” Id. ¶¶ 6-7. The doctors on both occasions told Plaintiff “such language was inappropriate, ” that it constituted “a racial slur, ” and cautioned him to “be respectful.” Id.

         M. Howard, another licensed clinical social worker who treated Plaintiff “at Donovan in 2013, ” claims Plaintiff “made an impression” during both individual and group therapy sessions by “tak[ing] up most of the time … talking about his anger toward … Dr. Phan … and Dr. Hansson, ” and “maintain[ing] [they] were responsible for his involuntary admission to ASH, which caused him to lose his job in the culinary department.” See ECF No. 84-7 (hereafter “Howard Decl.”) ¶ 2. Howard attests Plaintiff was “mostly angry during individual sessions, ” and often referred to Dr. Phan as “a gook” and Dr. Hansson as “that butcher.” Id. ¶ 3. On May 8, 2013, during a “suicide risk evaluation, ” Plaintiff “stood up from his chair, ” “pounded his finger on [Howard's] desk, ” and “demanded” he not be marked as a “sex offender.” Id. ¶ 4. During the same session, Plaintiff claimed he was “depressed” and “in reference to Dr. Phan, ” stated, “I'm going to tell you something: ‘[I]f I get that job back [in culinary] that woman can shove it up her fucking small gook's ass.'” Id.; see also Daub Decl. ¶ 4. Howard claims to have “made numerous attempts to engage [Plaintiff] in meaningful treatment, ” but claims efforts to “redirect him from making sexist and racist remarks about Dr. Phan were fruitless.” Howard Decl. ¶ 5.[7]

         On or about June 6, 2013, “handwriting was etched on the Mental Health Services Delivery System (MHSDS) building door, ” which read: “E. Phan Gook.” Daub Decl. ¶ 3; see also Phan Decl. ¶ 13. “It was suspected that [Plaintiff] wrote that ‘graffiti'” because it referred to Dr. Phan, who is of South East Asian ancestry, and who was Plaintiff's former psychologist. Daub Decl. ¶ 3. On the same day, Phan claims Plaintiff's clinician, Poage, told her Plaintiff “would talk about [Phan's] breasts, ” while she was treating him, and asked why Phan, who had just given birth, had gotten breast implants. Phan Decl. ¶ 14. Phan claims Plaintiff also told Poage Phan was “sexually inappropriate with him when [she] was his clinician prior to his transfer to ASH.” Id. Phan avers she was “nothing but professional” every time she interacted with Plaintiff. Id.

         “Out of concern for Dr. Phan, ” Dr. Daub reviewed Plaintiff's mental health records on June 6, 2013, id., and “based on [Plaintiff's]] actions and comments, ” rendered a “professional opinion and judgment that [Plaintiff] was fixated on Dr. Phan in a dangerous and unhealthy manner.” Id. ¶ 8. Daub “considered [Plaintiff's] behavior to be predatory, ” and “nothing short of harassment.” Id. Because Daub was “concerned for Dr. Phan's physical safety, and for no other reason, ” Daub “recommended to custody supervisors that [Plaintiff] be placed in [ASU] and transferred” from RJD. Id. Daub attests these actions “were not taken out of spite or in retaliation, ” and that the “sole focus and motivation was to protect Dr. Phan and quell an apparently simmering situation from boiling over into violence.” Id.

         Phan also feared for her safety based on Plaintiff's “harassing and hostile behavior” which had “escalated” to the point Phan felt she “could not effectively do [her] job as a psychologist with [Plaintiff] in the prison.” Phan Decl. ¶ 19. Phan claims she never made any “false report” and did not “retaliate” against Plaintiff “for any protected behavior he may have engaged in, or because he filed an inmate appeal against her.” Id. ¶ 21. Phan did report Plaintiff's behavior and her fears to custody staff, however, and believed they justified a “write up for harassment” and a transfer from RJD based on the “numerous hostile, sexist, and racist comments he made to [her] and about [her], ” and “because of [Plaintiff's] long documented criminal history of violence, ” “stalking, ” and obsession towards women. Id. ¶¶ 11, 21, 22. Phan claims she was aware Plaintiff was “placed in ASU on June 6, 2013 ...

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