a complaint “cannot be 24 considered as evidence at the summary judgment stage because it is unverified.”
How later courts described this case
- a complaint “cannot be 24 considered as evidence at the summary judgment stage because it is unverified.”
- “[The better 26 approach to resolving cases in which the defense of qualified immunity is raised is to 27 determine first whether the plaintiff has alleged the deprivation of a constitutional right at 28 all.”
- stating that the question whether “additional 10 diagnostic techniques or forms of treatment is indicated is a classic example of a matter for 11 medical judgment”
- “Conclusory allegations 2 unsupported by factual data cannot defeat summary judgment.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 RAUL ARELLANO, Case No.: 22-CV-441 TWR (LR)
CDCR #AH-1995,
12
ORDER GRANTING DEFENDANTS’
Arellano,
13 MOTION FOR SUMMARY
vs. JUDGMENT
14
A. CALDERON;
15 (ECF No. 29)
MORENO,
16
Defendants.
17
18
19 Presently before the Court is Defendants Calderon and Moreno’s Motion for
20 Summary Judgment. (See ECF No. 29, “Mot. for Summ. J.”). Plaintiff Raul Arellano,
21 currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego,
22 California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983,
23 on April 4, 2022. (See Compl., ECF No. 1.)1 Arellano claims Defendants, RJD mental
24
25
26
1 Throughout this Order and for ease of consistency and reference, the Court will cite to
27 each document in the record using both the number assigned to the document and the page
number automatically generated by its Case Management/Electronic Case File system
28
1 health personnel, violated his Eighth Amendment rights by failing to provide him with
2 adequate mental health care. (See generally id.) On May 25, 2023, Defendants filed a
3 Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. The Court has provided
4 Arellano with notice of the requirements for opposing summary judgment as required by
5 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952
6 (9th Cir. 1998) (en banc). (See generally ECF No. 30.) Arellano filed his Opposition on
7 November 22, 2023 (ECF No. 47, “Opp’n”), and Defendants filed their Reply on December
8 6, 2023 (ECF No. 50, “Reply.”)
9 Having now carefully considered the full record and relevant law, the Court finds
10 Defendants are entitled to judgment as a matter of law with respect to Arellano’s Eighth
11 Amendment claims, and GRANTS Defendants’ Motion for Summary Judgment pursuant
12 to Fed. R. Civ. P. 56.
13 As an initial matter, the Court addresses Plaintiff’s request to consider his
14 Complaint, the operative pleading in this matter, as a “verified complaint” and to consider
15 the Complaint as evidence in opposition to Defendants’ Motion. (See Opp’n, ECF No. 47
16 at 2.)
17 PLAINTIFF’S REQUEST TO VERIFY COMPLAINT
18 Plaintiff concedes he neither verified his April 4, 2022 Complaint nor sought leave
19 to amend his Complaint at any time since April of 2022. (See id.) At no time until he filed
20 his Opposition in late November of 2023 did Plaintiff seek to verify his Complaint. For
21 these reasons, the Court DENIES Plaintiff’s request to retroactively verify his Complaint
22 and finds that the Complaint is not admissible evidence at this stage of the proceedings.
23 See Moran v. Seligi, 447 F.3d 748, 759-60 & n. 16 (9th Cir. 2006) (a complaint “cannot be
24 considered as evidence at the summary judgment stage because it is unverified.”). The
25 Court will, however, reference allegations contained in the Complaint for context.
26 / / /
27 / / /
28 / / /
1 EVIDENTIARY OBJECTIONS
2 Plaintiff also objects to Exhibit D attached to the declaration of Jennifer Burns. (See
3 Burns Decl., ECF No. 29-4). Exhibit D is the California Department of Corrections and
4 Rehabilitation’s (“CDCR”) confidential chrono summarizing an interview of Plaintiff
5 concerning his safety and enemy concerns. (See id. at 36-37.) Plaintiff objects to Exhibit
6 D on the grounds that there is no declaration from the person who wrote this chrono and it
7 is hearsay. (See Opp’n at 5.)
8 At the summary judgment stage, the Court does not need to focus on whether the
9 parties have submitted evidence in an admissible form. Instead, the Court focuses on the
10 admissibility of its contents and asks whether the evidence “could be presented in an
11 admissible form at trial.” Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003)
12 (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive
13 summary judgment, a party does not necessarily have to produce evidence in a form that
14 would be admissible at trial, as long as the party satisfies the requirements of Federal Rules
15 of Civil Procedure 56.”). A “proper foundation need not be established through personal
16 knowledge but can rest on any manner permitted by Federal Rule of
17 Evidence 901(b) or 902.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773-74 (9th Cir.
18 2002).
19 Here, the Court finds there are enough contextual clues on the face of Exhibit D to
20 conclude the document is what it purports to be. See Fed. R. Evid. 901(b)(4) (evidence
21 may be authenticated by “appearance, contents, substance, internal patterns, or other
22 distinctive characteristics of the item, taken together with all the circumstances.”); see also
23 Johnson v. Sweeney, No. 114-CV-1526-LJO-SAB, 2015 WL 6082061, at *9 (E.D. Cal.
24 Oct. 13, 2015), report and recommendation adopted sub nom. Johnson v. Sweeney, No.
25 114-CV-1526-DAD-SAB, 2016 WL 8731209 (E.D. Cal. July 29, 2016) (“Courts generally
26 view objections based on authentication skeptically in the absence of an indication that the
27 document’s authenticity is genuinely in dispute, and objections to prison records which are
28
1 clearly what they purport to be are routinely overruled under Rule 901(b)(4)[.]”) (internal
2 citations omitted).
3 Plaintiff’s objections to Exhibit D on hearsay grounds are similarly unpersuasive.
4 The CDCR memorandum is a business record. See Fed. R. Evid. 801(d)(2). The fact that
5 Defendants did not submit a Custodian of Records’ declaration is not fatal to its
6 admissibility at this stage of the case. See JL Bev. Co., LLC v. Jim Beam Brands Co., 828
7 F.3d 1098, 1110 (9th Cir. 2016) (“[A]t summary judgment a district court may consider
8 hearsay evidence submitted in an inadmissible form, so long as the underlying evidence
9 could be provided in an admissible form at trial.”). The Court is satisfied that Exhibit D
10 could be introduced at trial consistent with the Federal Rules of Evidence.
11 For these reasons, the Court OVERRULES Plaintiff’s objections to Exhibit D of
12 Burns’ declaration.
13 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
14 I. FACTS
15 A. CDCR Mental Health Treatment Programs
16 Defendants, Calderon and Moreno, are psychologists employed by the California
17 Department of Corrections and Rehabilitation (“CDCR”) who were assigned to RJD. (See
18 Defs.’ Sep. Stmt. of Material Facts in Supp. of Mtn. for Summ. J. (hereinafter “SSMF”),
19 ECF No. 29-3, ¶ 2.) The CDCR provides mental health treatment to inmates at three
20 different levels. The Correctional Clinical Case Management System (CCCMS) is for
21 inmates who have either a serious mental health diagnosis, or mild to moderate functional
22 impairment. The Enhanced Outpatient Program (EOP) is for inmates who have the same
23 qualifying criteria as those at the CCCMS level of care, but the resulting functional
24 impairment is more severe and requires more frequent contact with mental health
25 professionals. (See id. at ¶ 4.) Finally, the Mental Health Crisis Bed (MHCB or “crisis
26 bed”) is for inmates “whose acute psychiatric systems cause them to be a danger to
27 themselves or other or who suffer a grave disability, meaning the inmate is incapable of
28 caring for himself safely.” (Id. at ¶ 7.)
1 Inmates at the CCCMS level of care receive individual contacts with either a
2 psychologist or social worker every 90 days, individual contact with a psychiatrist every
3 90 days, and an interdisciplinary treatment teams (IDTT) meeting annually. (See id. at
4 ¶ 5.) Inmates at the EOP level of care receive monthly contacts with a psychiatrist, weekly
5 visits with either a social worker or psychologist, and an IDTT meeting every ninety days.
6 (See id. at ¶ 6.) Finally, inmates at MHCB level of care are admitted to the MHCB to
7 receive “intensive medical and mental health treatment from a variety of providers for the
8 duration of their admission.” (Id. at ¶ 8.) During the duration of time an inmate is admitted
9 to the MCHB a “Suicide Risk and Self-Harm Evaluation” is conducted “numerous times.”
10 (Id.) “Clinicians assess the inmate-patient’s current presentation, verbal and non-verbal
11 indicators of distress, and the extent to which they articulate future plans and anticipated
12 future consequences.” (Id.)
13 B. Overview of Plaintiff’s Crisis Bed Admissions from March to April 2018
14 Plaintiff was housed in RJD’s sensitive needs yard from March 11, 2015 to March
15 14, 2018, where he was receiving care at the EOP level. (See id. at ¶ 9.) His level of care
16 and corresponding housing assignments were then changed relevant to the instant action
17 before this Court as follows:
18 Date Level of Care
19 March 14, 2018, to March 24, 2018 CCCMS
20 March 24, 2018, to April 4, 2018 MHCB
21 April 4, 2018, to April 6, 2018 Discharged to Administrative Segregation
and then returned to CCCMS
22
April 6, 2018, to April 19, 2018 MHCB
23
April 19, 2018, to present CCCMS
24
25
26 (See Defs.’ Mem. P. & A. Supp. Mot. for Summ. J. (hereinafter “Defs.’ Memo P&As”),
27 ECF No. 29-1, at 9.) Plaintiff has not returned to the MHCB since these two admissions
28 and has remained at the CCCMS level of care. (See id.)
1 C. Arellano’s Mental Health Treatment – March 2018 to April 2018
2 As set forth above, Plaintiff was housed on the EOP yard from March 11, 2015, to
3 March 14, 2018, when he was transferred to CCCMS. (See SSMF at ¶ 9.) Ten days later,
4 on March 24, 2018, Plaintiff reported feeling suicidal to a corrections officer and was
5 admitted to the MHCB. (See SSMF at ¶ 15; Decl. of A. Moreno (hereafter “Moreno
6 Decl.”), ECF No. 29-5 at ¶ 14.) Dr. Moreno was assigned as his primary clinician, and
7 Plaintiff was under a one-on-one suicide observation for the first twenty-four hours. (See
8 id.) Thereafter, Plaintiff was observed at least every fifteen minutes. (See id.) On March
9 25, 2018, Psychologist Reyes, who is not a defendant in this lawsuit, performed a Suicide
10 Risk and Self-Harm Evaluation, which notes that Plaintiff stated that he tried to hang
11 himself in his cell on March 24, 2018, but stopped and reported his suicidal ideation to a
12 corrections officer. (See SSMF ¶ 16; Moreno Decl. at ¶ 15, Ex. A at 14-18.) Dr. Reyes
13 noted several factors that mitigate the risk of a patient’s suicidality, also known as
14 “protective” or “buffer” factors which included noting Plaintiff was “future- and goal-
15 oriented and had significant family support, including his children.” (See Moreno Decl. at
16 ¶ 15, Ex. A at 16.) Plaintiff notes that Dr. Reyes’s evaluation also documented his reports
17 of suicidal thoughts and plans to kill himself over several years. (See Pl.’s Opp’n to Defs.’
18 Mot. for Summ. J., ECF No. 47 (“Opp’n) at 2 (citing Moreno Decl., Ex. A at 14-18).)
19 On March 26, 2018, after reporting intermittent suicidal ideation to registered nurses
20 in another suicide risk assessment, (see Moreno Decl., Ex. A at 110), Psychiatrist Toohey
21 noted that Plaintiff reported feeling depressed “after learning that his [eleven-year-old son]
22 had a suicide attempt and was hospitalized on a psych unit. The son’s mother blames
23 [Plaintiff’s] absence due to incarceration as contributing factor and places blame on
24 [Plaintiff]. [Plaintiff] felt depressed about this . . . [Plaintiff] states he told custody that he
25
26
27 2 These facts are taken from Defendants’ SSMF, see ECF No. 29-3 along with the declarations and
exhibits attached to their Motion, and the Court will note when Plaintiff disputes any of these facts or
28
1 was feeling suicidal but when they told him to wait overnight to generate paperwork, he
2 tied a cable and contemplated suicide.” (Id. at 169.) In another assessment on that same
3 day, Psychologist Elloyan noted that “[Plaintiff] is new admission to the MHCB following
4 self-reported suicide attempt by hanging, though there is no objective proof of his account.
5 He currently reports [suicidal ideation] but no plan or intent.” (Id. at 177; see also SSMF
6 at ¶ 18.) In a “Suicide and Self-Harm Summary” completed on the same day and cited by
7 Plaintiff in his opposition, Dr. Elloyan noted that Plaintiff claimed to have attempted
8 suicide on four occasions but he could not recall the events of March 14, 2018 other than
9 attempting to put a chord around his neck but did not follow through with the attempt
10 because his cellmate woke up and used the bathroom. (See ECF No. 47-2 at 7.) Plaintiff
11 also reported that he told an unnamed sergeant the next day that he was feeling suicidal but
12 “no one was listening.” (Id.) Dr. Elloyan also noted in the “History of Present Illness”
13 section of her report: “Inconsistent reporting across documentation, flagged by Assessment
14 Unit as evaluated for malingering.” (Moreno Decl., Ex A at 177.)
15 The parties disagree as to whether the content of these reports demonstrate that
16 Plaintiff tried to kill himself on March 24, 2018. Defendants cite to Dr. Toohey’s report,
17 specifically the statement that Plaintiff “contemplated suicide,” but never actually tried to
18 carry out his plan to hang himself as evidence that Plaintiff recanted his statement that he
19 attempted suicide. (See SSMF at ¶ 17.) Meanwhile, Plaintiff contends that Dr. Toohey
20 misinterpreted his statements as English is his second language, explaining that Dr.
21 Elloyan’s assessment is more accurate and actually demonstrates that he did attempt to
22 commit suicide on the night of March 24, 2018. (See Opp’n at 2 (“As you can see, I tried
23 killing myself by pulling the chord on my neck then I stop because my cellie woke up, I
24 then thought about it [two] more times but didn’t do it cause my cellie could [wake] up.”).)
25 Regardless of these disagreements, however, none of the Parties dispute that Plaintiff
26 contemplated suicide on the night of March 24, 2018, and reported these feelings to a
27 correctional officer.
28 Additional notes from Dr. Elloyan’s assessment that day explained that Plaintiff was:
1 alert, fully oriented, and made good eye-contact. His thought
process linear/logical/oriented . . . No delusions were observed
2
or reported . . . endorsed SI but no plan or intent. Affect did not
3 match self-report. When challenged with conflicting
information previously reported, he appeared to stammer and
4
struggle to explain why his report today was different.
5
(Moreno Decl., Ex. A at 126.) An evaluation by Plaintiff’s Interdisciplinary Treatment
6
Team (“IDTT”), which included five mental health professionals, noted Plaintiff’s reports
7
of:
8
Conflicting information from previous documentation, stated he
9
has safety concerns “from the whole block”, but states that he
10 does have [suicidal ideation] and self-reported a suicide attempt
on 3.24.18 in which he put a chord around his neck and pulled
11
but heard cellie get up and took chord off neck, went back to
12 sleep. Stated he reported SI again in the morning. No objective
proof or collaboration of his account, no marks on neck
13
reported.
14
(Id. at 164; see also SSMF at ¶ 20.) Plaintiff explains that there were no marks on his neck
15
because while he put the chord around his neck, he “didn’t pull hard enough.” (Opp’n at
16
4.) That evening, Plaintiff reported intermittent suicidal ideation, but refused to answer
17
specific questions about “his suicidal ideation, possible plan, and reasons for feeling
18
suicidal.” (Moreno Decl., Ex. A at 111.) Plaintiff does not dispute that he refused to
19
answer specific questions maintaining he did so because “it was registered nurses who are
20
not mental health that were questioning me” and when he is feeling suicidal or depressed
21
he does not “like to talk or be questioned.” (Opp’n at 4.)
22
On March 27, 2018, Plaintiff was removed from one-on-one observation in the
23
MHCB and placed on an observation plan that involved checks by staff every fifteen
24
minutes. (See SSMF at ¶ 22.) In an assessment that afternoon, Dr. Toohey noted: “[No]
25
events overnight. Patient refused to talk with clinician today, Too tired . . . Nursing state
26
patient was observed in no acute distress earlier . . . MH tech observation notes that patient
27
reported suicidal thoughts today. No concerning activity.” (Moreno Decl., Ex. A at 188.)
28
1 Dr. Toohey also noted that Plaintiff’s “current presentation was for [suicidal ideation] but
2 no acute suicidality since admission,” and that Plaintiff “still meets criteria for MHCB at
3 this time.” (Id. at 189.)
4 On March 28, 2018, Plaintiff met with Defendant Moreno in the MHCB for the first
5 time, expressing interest in being placed in the EOP programming level. (See SSMF at
6 ¶ 23.) Plaintiff reported to Defendant Moreno that he felt depression and anxiety about his
7 inability to care for his family, his son attempting suicide due to his absence from his
8 family, his habeas corpus case, and issues with his cellmates. (See Moreno Decl., Ex. A at
9 196-97.) The progress note by Defendant Moreno explains that:
10 [Plaintiff] presenting increased stress related to recent change in
LOC (EOP to CCCMS), self-reported [suicide attempt] of child,
11
and continuing stress related to index crime. [Plaintiff] reports
12 being able to cope previous to his LOC change. [Plaintiff]
reports being interviewed by a Sgt about his safety concerns on
13
the yard. Denies [suicidal/homicidal ideation].
14
(Id. at 197.) The March 28, 2018, note explains that Plaintiff would continue to be
15
monitored for suicidal ideation. (See id.)
16
Plaintiff contends that he told Dr. Moreno he was still feeling suicidal and that she
17
“purposely failed to note” these reports in the March 28, 2018 note. (See Opp’n at 4.)
18
Citing to notes from Certified Nursing Assistants who monitored him during his checks at
19
fifteen-minute intervals that day, Plaintiff notes that mental health professionals frequently
20
observed him with his head covered in bed, where he contends he was actively planning
21
suicide. (See id. at 4 (citing ECF No. 47-4 at 49-54; ECF No. 47-5 at 1-10).)
22
That same day, Plaintiff met with a correctional officer about his safety and enemy
23
concerns in his permanent housing assignment outside of the MHCB. (See ECF No. 29-4,
24
Burns Decl., Ex. D at 36-37.) A report drafted by an unnamed officer explains that during
25
the interview, Plaintiff said that he did not have safety concerns, but that “‘I said I was
26
suicidal (MHCB) so I can go back to the EOP (Enhanced Outpatient Program) program.
27
It’s easier there.’” (Id.) When the officer confronted Plaintiff about willfully manipulating
28
1 his level of care to obtain more favorable programming, Plaintiff stated “‘Well, this is what
2 all the other inmates do. Everyone knows that. I have to do it so I get back to EOP.’” (Id.)
3 While as noted above, Plaintiff objects to this report’s consideration as evidence in support
4 of Defendants’ motion for summary judgment as inadmissible hearsay but he does not
5 otherwise dispute that the officer told him that he was purposely manipulating his level of
6 care or that he told the officer he wanted to be placed in EOP programming for reasons
7 related to his safety and level of care. (See Opp’n at 5.)
8 On March 29, 2018 a progress note authored by Dr. Moreno explains:
9 [Plaintiff] reports depressed mood has improved somewhat,
rating current depression as 6.5/10. [Plaintiff] reports still having
10
some paranoia about others out to harm him however “it’s better
11 when I don’t have a cellie.” [Plaintiff] reports attempting some
coping skills . . . [Plaintiff] reports continuing to work on his
12
legal work and his next court date being on April 6. [Plaintiff]
13 reports some distress and denies [suicidal ideation/homicidal
ideation].
14
15 (See Moreno Decl., Ex. A at 195.) Dr. Moreno noted that Plaintiff had “some improved
16 mood . . . is future oriented going to his next court date and has protective factor of his son
17 . . . has been engaging in healthy coping skills and continues to improve . . . PC continues
18 review protective factors . . .” (Id.) Finally, Dr. Moreno noted “[p]ossible DC early next
19 week as sx’s are starting to improve,” but that Plaintiff would “continue to be seen daily
20 by MH staff.” (Id.)
21 Plaintiff contends that he “never denied suicidal ideation. I maintain such symptom
22 every day. And told them I couldn’t trust myself.” (Opp’n at 5.) Citing to additional
23 precaution notes by Certified Nursing Assistants on the day of March 29, 2018, that show
24 him lying down with his head covered, Plaintiff contends that this is “one way to know [I]
25 am still contemplating suicide[] or plan[n]ing it.” (Id. (citing ECF No. 47-5 at 12-31).)
26 On March 30, 2018, Psychiatrist Buabeng noted that Plaintiff “had a linear and
27 logical thought process at times,” and that his “[t]hought content is negative for suicidal
28 ideation while here at crisis bed.” (Moreno Decl., Ex. A at 18.) Dr. Buabeng further noted
1 that Plaintiff “feels safe here at crisis bed. Does not want to go to yard[,]” and that
2 “[Plaintiff’s] presentation during encounters, and reports of [his] behavior by custody, do
3 not align with the sx that he is reporting. [Plaintiff] endorses symptoms that seem to be
4 driven by secondary gain.” (Id. at 20.) Dr. Moreno also met with Plaintiff that day, noting
5 that he was future oriented and wanted to see his family after he paroles, and that Plaintiff
6 denied suicidal or homicidal ideation. (Id. at 190-91.) Additionally, Dr. Moreno noted
7 that Plaintiff’s:
8 mood appears to be improving and [he] has been processing
about his current stressors. [Plaintiff] appears to be wanting
9
more support (as he was [previously] moved from EOP to
10 CCCMS) and was asking about EOP program again. PC
encouraged [Plaintiff] to attempt to continue to boost his coping
11
skills as mood has been improving. It is suspected that [Plaintiff]
12 may be either trying to attempt to obtain a housing change or
LOC change as [Plaintiff] reported hearing AH at CCCMS LOC
13
only and has never heard AH when at EOP LOC.
14
(Id. at 191-92.) In response, Plaintiff contends “I don’t know why Dr. Moreno will write
15
I don’t have [suicidal ideation] and that my situation is improving.” (Opp’n at 6.) Instead,
16
Plaintiff contends that he actually told Dr. Moreno “what she wrote on her report when she
17
stated that I told her, ‘It’s my situation I can’t handle.’” (Id.) Plaintiff also contends that
18
he asked for EOP because of his “suicidal thoughts that I know I’ll act [on] if [I go] back
19
to yard where there’s razors and [I] am not being watch[ed],” and that “in general I have
20
and get more attention when I need it [in EOP]. And you’[re] not locked in your cell 24hrs
21
as how in CCCMS which allow[s] me time to plan suicide[e].” (Id. at 6, 7.)
22
On March 31, 2018, Psychologist Contreras noted that Plaintiff did not report any
23
suicidal ideation and exhibited no suicidal or self-harming behavior. (See SSMF at ¶ 28;
24
Moreno Decl., Ex. A at 187-88.) Psychologist Hood met with Plaintiff on April 1, 2018,
25
noting that “he struggles with being moved from EOP to CCCMS LOC when he was on
26
the yard,” and that he “‘went downhill’” within two weeks from the last time he was moved
27
to CCCMS. (Id. at 180.) Dr. Hood also reported that Plaintiff “asked for a pencil, paper,
28
1 and some envelopes to write family.” (Id.) Plaintiff contends that he later told Dr. Moreno
2 that he requested pencil and paper from Dr. Hood “because I was planning to hurt myself.”
3 (Opp’n at 7.)
4 On April 2, 2018, Plaintiff reported feeling depressed and stressed about the impact
5 being in prison had on his family to Dr. Toohey. (See Moreno Decl., Ex. A at 184.) Dr.
6 Toohey noted that despite these reports, Plaintiff “was smiling and joking with staff
7 intermittently during interview,” and that Plaintiff “would like to be placed on EOP again
8 leaving [sic] that [] the encouragement to go to groups was helpful for him. Depression
9 still seen as reaction to real stressor . . .” (Id.) Plaintiff notes that “even though Toohey
10 didn’t mention [it],” he reported suicidal ideation to Psychologist Bailis on that day as well.
11 (See Opp’n at 7 (citing ECF No. 47-1 at 83).)
12 Plaintiff met with his IDTT on April 2, 2018 to discuss his appropriate level of care.
13 (See Moreno Decl., Ex. A at 152-161.) Plaintiff told the IDTT that he needed to return to
14 the EOP level of care because “custody comes to the door to remind us of groups in EOP
15 and that gives me the motivation to get up and go … otherwise the spiderweb just holds
16 me down in my cell all day.” (Id. at 161.) However, the IDTT determined that he did not
17 need EOP level of care and noted that Plaintiff was “intelligent, future oriented, [and]
18 independently work[ed] on his legal case effectively.” (Id.) In addition, in determining
19 that Plaintiff no longer needed EOP level of care, the IDTT found that “[s]ince participating
20 in EOP program, [Plaintiff] has likely gained additional coping skills and increased
21 adaptive strengths likely leading to resolution of [symptoms].” (Id.)
22 The following day, on April 3, 2018, Defendant Moreno met with Plaintiff and
23 Plaintiff informed him that he had “ongoing stress related to his legal work however no
24 issues with depression” and denied suicidal ideation. (Id. at 190.) Defendant Moreno
25 informed Plaintiff that he had “met all [treatment] goals” and was expected to transfer to
26 CCCMS the following day. (Id. at 191.) He further recommended that Plaintiff be seen
27 once a week during his first month back in CCCMS care and that he be “educated about
28 groups and programs available to CCCMS [inmates].” (Id.) Plaintiff contends that every
1 time he saw Defendant Moreno he “told her [he] was feeling suicidal and that he want[ed]
2 to kill [himself] to eliminate the loneliness and pain of being without [his] family.” (Opp’n
3 at 8.) Plaintiff claims he told Defendant Moreno that he did not “trust myself, I will attempt
4 to kill myself either by hanging or slicing my wrists” and razors are available to inmates
5 housed in CCCMS level of care. (Id. at 9.)
6 Later that night, after learning he would be transferred to CCCMS, Plaintiff reported
7 “intermittent” suicidal ideation to a nurse at 10:06 p.m. (Moreno Decl., Ex. A at 104.)
8 Psychiatrist Umugbe responded to this report and noted the Plaintiff reported that he
9 “want[ed] to end his life by hanging” and noted the same concerns that Plaintiff had
10 expressed to other mental health providers. (Id. at 183.) Dr. Umugbe placed Plaintiff on
11 a one-to-one suicide watch. (See id.)
12 The following day, Plaintiff met again with his IDTT, which included Defendant
13 Moreno, for an “extensive interview and review of his mental status.” (SSMF at ¶ 34,
14 Moreno Decl., Ex. A at 139-151.) The IDTT found that while Plaintiff “often reported still
15 feeling suicidal,” he also stated that “I want to see my family” and “I need to live for my
16 family” which the IDTT found to be “clearly future thinking.” (Id. at ¶ 34, Moreno Decl.,
17 Ex. A at 151.) Plaintiff also told the IDTT “I can’t go to [administrative segregation], I
18 need phone calls to my family.” (Id.) The IDTT found that while Plaintiff did not want to
19 be transferred to CCCMS, it was “clear that [Plaintiff’s] issues have remained chronic and
20 could be treated at a lower [level of care]” and agreed to proceed with Plaintiff’s transfer.
21 (Id.) Plaintiff maintains that Defendant Moreno is only “assuming” that his “acute suicidal
22 claims were not true” because she has “no evidence that my acute suicidal claims were not
23 true.” (Opp’n at 10.)
24 That same day, April 4, 2018, Defendant Moreno performed a “Suicide Risk and
25 Self-Harm Evaluation” on Plaintiff. (Moreno Decl., Ex. A at 117.) Plaintiff informed
26 Defendant Moreno that he “tried to hang himself on [March 24, 2018], despite no evidence
27 of this” and he “later reported he didn’t actually attempt, he just made the noose.” (Id.)
28 Plaintiff disagrees with this report and claims he told Defendant Moreno that he “pull[ed]
1 the noose while around my neck but stop[ped] cause my cellie woke up [and] then I thought
2 about doing it twice but I didn’t.” (Opp’n at 10.)
3 After interviewing Plaintiff and reviewing his records, Defendant Moreno
4 determined that Plaintiff “presented a moderate risk of suicidality.” (SSMF at ¶ 36,
5 Moreno Decl., Ex. A at 121.) She further determined that he was “no longer in crisis and
6 the [treatment] team has agreed” to transfer Plaintiff back to CCCMS with “additional
7 sessions for transition” from EOP to CCCMS. (Moreno Decl., Ex. A at 122.)
8 Plaintiff was ultimately discharged from the MHCB by Dr. Toohey. (SSMF at ¶ 37,
9 Moreno Decl., Ex. A at 128-140.) Dr. Toohey reported that Plaintiff presented with
10 suicidal ideation but “no acute suicidality since admission until he discover[ed] that he was
11 being discharge[ed].” (Moreno Decl., Ex. A at 128.) Dr. Toohey also opined that
12 Plaintiff’s report of suicidal ideation “is highly suspicious of secondary gain (patient does
13 not want discharge).” (Id. at 129.) He further noted Plaintiff’s “mental status exam on
14 interview is not consistent with depressive mood (smiling, joking with staff, future
15 thinking)” and Plaintiff “demonstrated no suicidal behaviors or gestures during his
16 [MHCB] stay or [in] the months prior.” (Id.) Dr. Toohey ordered that Plaintiff be seen by
17 a primary clinician daily for five days and by a psychiatrist within ninety (90) days “or
18 sooner if necessary” upon his return to CCCMS. (Id. at 138-39.) Plaintiff denies that he
19 did not want to be discharged from MHCB but rather he wanted to be transferred to the
20 EOP level of care. (See Opp’n at 12.)
21 On April 5, 2018, Plaintiff met with Psychology Intern Johnson. (See SSMF at
22 ¶ 41; Decl. of A. Calderon (hereafter “Calderon Decl.”), Ex. A at 43.) Plaintiff “reported
23 his anxiety and depression are both 9 on a scale of 1-10, with 10 being highest level.”
24 (Calderon Decl., Ex. A at 63.) Plaintiff was reported to have high levels of anxiety and
25 depression but did not report suicidal ideation. (See id.) Johnson did not find Plaintiff to
26 be in crisis and “that CCCMS is the appropriate level of care.” (Calderon Decl. at ¶ 15;
27 Ex. A at 47.) Plaintiff does not dispute Johnson’s findings. (See Opp’n at 13.) However,
28 Plaintiff claims that at some point on that day, “when no one was around,” he “attempted
1 suicide by throwing himself from top bunk to concrete floor landing on side of head [and
2 shoulders.” (Id.)
3 Senior Psychologist Brown consulted with Plaintiff the following day on April 6,
4 2018. (See SSMF at ¶ 42; Calderon Decl., Ex. A. at 65.) Plaintiff reported to Brown that
5 he was suicidal and “no longer felt safe to remain in his cell with all of his belongings
6 because he did not know what he would do to himself.” (Calderon Decl., Ex. A. at 65.)
7 He further told Brown that “he rolled off the top bunk in his cell and hurt his head and
8 shoulder, though he did not receive medical attention.” (Id.) Brown reported that
9 “[n]either of these behaviors could be corroborated with supporting documentation in the
10 chart.” (Id.) Plaintiff responded that he “felt frustrated with mental health not taking him
11 seriously and he would do what was necessary to demonstrate his distress.” (Id.) Dr.
12 Brown opined that Plaintiff “can likely return to CCCMS if there is an adequate plan in
13 place for him.” (Id.)
14 Plaintiff was medically examined after his claims that he threw himself off his bunk.
15 (See Calderon Decl., Ex. A at 18-19.) Dr. Goyal reported Plaintiff had a “normal neuro
16 exam and does not have any red flags.” (Id. at 2.) Plaintiff states in response that the
17 doctor who examined him was “only looking for broken bones” but did not care about “all
18 [his] other aching pains.” (Opp’n at 13.)
19 Later that day, Psychologist Bailis performed a “Suicide Risk and Self Harm-
20 Evaluation” on Plaintiff. (Calderon Decl. Ex. A at 74-76.) Dr. Bailis noted Plaintiff
21 “appear[ed] motivated to return to EOP” and told her “I think I need to go back to EOP or
22 a higher level of care.” (Id. at 76.) Dr. Bailis found that Plaintiff’s “depression was likely
23 maintained by poor coping skills and maladaptive relational patterns” but since
24 “participating in EOP program, [Plaintiff] has likely gained additional coping skills and
25 increased adaptive strengths likely leading to resolution of [symptoms].” (Id. at 149.)
26 Plaintiff argues in response that Dr. Bailis only “pasted the answers of what another
27 psychologist put on the ‘Suicide Risk and Self Harm Evaluation.’” (Opp’n at 14.)
28 Later that night, Plaintiff was seen by Psychiatrist Buabeng. (See Calderon Decl.
1 Ex. A at 129.) Dr. Buabeng noted that Plaintiff had been recently discharged from a crisis
2 bed and was “brought back today after reporting suicidal ideation without a specific plan.”
3 (Id. at 138.) As part of the treatment plan, Dr. Buabeng noted “Safety: Continue 1:1
4 observation.” (Id.)
5 The following day, Plaintiff “reported no suicidal ideation and exhibited no suicidal
6 or self-harming behavior.” (Calderon Decl. at ¶ 20, Ex. A. at 32-33.) In addition, Plaintiff
7 “continued to show linear and self-harming behavior.” (Id. at 40-41.) Plaintiff disputes
8 this indicating that it was noted that he was “refusing care, uncooperative, withdrawn.”
9 (Calderon Ex. A at 40.) Plaintiff argues that just because he did not report suicidal ideation
10 does not “mean [he] wasn’t planning it, [be]cause he was.” (Opp’n at 14.) Plaintiff later
11 reported to Dr. Buabeng that he was “still having the thoughts, [he] has been trying to shake
12 it off.” (Calderon Dec., Ex. A at 177.)
13 On April 8, 2018, Plaintiff did not report any suicidal ideation or self-harming
14 behavior and was examined by Psychiatrist Contreras. (Id. at 30-31, 175-77.) Plaintiff
15 informed Dr. Contreras that he was “alright” but did not want any changes to his
16 medication. (Id. at 176.) Plaintiff claims that he was not examined by Dr. Contreras but
17 he was sleeping. (See Opp’n at 14.) The medical records indicate that Dr. Contreras
18 recorded that Plaintiff was “somewhat cooperative due to him still being sleeping this
19 morning.” (Calderon Decl., Ex. A at 176.)
20 The following day, on April 9, 2018, Plaintiff was seen by Dr. Calderon. (Id. at 65.)
21 Plaintiff told Dr. Calderon that his medication was “not at all” working and his treatment
22 was working “somewhat.” (Id.) Plaintiff also reported that the “negative impact” of his
23 death on his “loved ones” keeps him from killing himself and he feels “like I’m not ready
24 to die for several reasons.” (Id. at 77.) Plaintiff disputes this saying that he “actually told
25 Calderon [he] constantly is think[ing] of suicide” and he “strongly feels like dying.”
26 (Opp’n at 15.)
27 Plaintiff also met with his IDTT, which included Dr. Calderon, on April 9, 2018.
28 (Calderon Decl., Ex. A at 119-128.) The team reported that Plaintiff’s reports of suicidal
1 ideation were “vague and nonspecific.” (Calderon Decl., Ex. A at 127.) The team also
2 concluded that he did not qualify for a higher level of care, and he was primarily in MHCB
3 for “Ad Seg and safety reasons.” (Id.)
4 Plaintiff disputes this and claims that he told Dr. Calderon that he was “planning to
5 hang [him]self, slice [his] wrist, or OD with pills” but these statements were “omitted
6 [from] Calderon’s report.” (Opp’n at 15.) However, Dr. Toohey, another member of the
7 IDTT, reported that Plaintiff was “joking and smiling with staff during IDTT.” (Calderon
8 Decl., Ex. A at 172.)
9 Dr. Calderon attests that prior to his IDTT meeting on April 9, 2018, Plaintiff “did
10 not report suicidal ideation, suicidal or self-harming behaviors, and talked ‘happily’ with
11 his mental health observer.” (Calderon Decl. at ¶ 26.) However, “after learning at his
12 IDTT that he did not qualify for a higher level of care, [Plaintiff] reported constant suicidal
13 ideation.” (Id.) Plaintiff again disputes this and declares that he did report suicidal ideation
14 on April 6 and April 7, 2018. (See Opp’n at 15.) However, Plaintiff does not dispute that
15 he did not report any of these types of thoughts on April 9, 2018, prior to the IDTT meeting.
16 Dr. Calderon met with Plaintiff on April 10, 2018. (See Calderon Decl. at ¶ 27.) Dr.
17 Calderon reported that Plaintiff said he was “not doing well” but his “reports were vague,
18 and he appeared to be exaggerating his symptoms.” (Calderon Decl., Ex. A. at 190.)
19 Plaintiff also “perseverated on future-oriented tasks such as writing to the Innocence
20 Project, speaking with his sons, and other legal issues due to his release in 2028.” (Id. at
21 190-191.) Plaintiff also “appears to present himself in a distressed and depressed manner,
22 although he does not appear depressed or endorsing symptoms commonly associated with
23 depression.” (Id. at 191.)
24 Dr. Toohey met with Plaintiff on April 11, 2018, and noted that Plaintiff had “no
25 thoughts of self-harm” and “remains in behavioral control.” (Calderon Decl. Ex. A. at
26 169.) She further reported that “[[i]t remains our impression that, like previous crisis bed
27 admission, patient has secondary gain in staying in crisis bed.” (Id. at 171.)
28 On April 12, 2018, a team of nine (9) psychiatrists and psychologists, including Dr.
1 Calderon, met for a case conference in which they discussed Plaintiff’s level of care. (See
2 Calderon Decl. at ¶ 29.) It was discussed that Plaintiff reported he was feeling suicidal
3 when he was discharged from MHCB but the “treatment team had doubts about the veracity
4 of his claims and his need for inpatient treatment.” (Calderon Decl., Ex. A. at 188.) The
5 team discussed Plaintiff’s “recent background and possible motivations for seeking higher
6 level of care.” (Id.) Specifically, they reviewed his desire to delay deadlines for
7 “submissions accepted by the court,” his desire for his one-to-one suicide watch to be
8 monitored by female nurses,” and that he wanted to be “in EOP because he would receive
9 more clinical attention in general.” (Id.) However, Plaintiff was “unable to specify any
10 aspect of the treatment itself that he found helpful.” (Id.) The “team was in agreement that
11 [Plaintiff] did not require this level of care for a major mental illness” and “opted to
12 discharge [Plaintiff] back to CCCMS.” (Id. at 188-89.) The team also discussed the
13 discharge plan to include that Plaintiff “be seen with increased frequency (perhaps b-
14 weekly) following completion of his 5-day follow up to provide additional support.” (Id.
15 at 189.)
16 Dr. Calderon met with Plaintiff on April 12, 2018, and reported that Plaintiff
17 “appeared drowsy and reluctant to interact.” (Calderon Decl., Ex. A at 184.) Plaintiff
18 “reported he was feeling fine and needed to sleep.” (Id.) Plaintiff disputes this and states
19 that when he “told Calderon, [he] felt suicidal, he walked away.” (Opp’n at 17.) In
20 addition, “later that on that night,” Plaintiff claims he asked to have all items removed from
21 his cell because his “anxiety is high.” (Id.)
22 The next day, Plaintiff was given an additional dose of his anxiety medication. (See
23 Calderon Decl., Ex. A at 162.) Dr. Calderon met with Plaintiff later that day and reported
24 he did report suicidal ideations the previous night but seemed “calm” and did not “appear
25 depressed.” (Id. at 180.) Plaintiff told Dr. Calderon that he “’gave all my stuff back
26 because [he] didn’t want all these injuries’” while looking at his arms, but Dr. Calderon
27 reports that “there was no visible scars or affected skin issues with his arms.” (Id.)
28 Plaintiff was examined by Psychologist Hood on April 14, 2018. (See Calderon
1 Decl., Ex. A at 155-56.) Dr. Hood found that Plaintiff “appeared stable with no acute signs
2 of distress or de-compensation.” (Id. at 156.) Plaintiff informed Dr. Hood that he had
3 “more suicidal thoughts when I’m up at night” and Dr. Hood determined that Plaintiff
4 should be housed in MHCB “at this time.” (Id.)
5 On April 16, 2018, Plaintiff was seen by Dr. Calderon, who reported that Plaintiff
6 indicated that he “feel[s] like [he’s] not ready to die for several reasons” and only had
7 “passing thoughts of suicide.” (Id. at 77.) However, shortly after this meeting Plaintiff
8 “reported worsening suicidal ideation and impulses to cut himself and voluntarily returned
9 paper in his possession because he stated he could use it to cut himself.” (Calderon Decl.
10 at ¶ 35.) Plaintiff was placed in “one-to-one observation for twenty-four hours.” Id. In
11 response, Plaintiff maintains that it is “evident Dr. Calderon and all the team are all liars,
12 making misleading and prejudicial reports, putting life at risk.” (Opp’n at 19.)
13 Plaintiff met with his IDTT later that day. (See Calderon Decl., Ex. A at 106-119.)
14 The team agreed to change Plaintiff’s anxiety medication but did not find that he qualified
15 for a higher level of care. (See id. at 118.) They found despite Plaintiff reporting he had
16 suicidal ideation, he also reported that he did not “actually harm himself, and thus, he could
17 be transferred to CCCMS.” (Id. at 117-118.) Plaintiff claims in response that the team as
18 a whole played a limited role and “the only one making decisions and talking was
19 Calderon.” (Opp’n at 19.)
20 After the IDTT meeting, Plaintiff met with Dr. Toohey and reported that he “thought
21 of cutting but didn’t.” (Calderon Decl., Ex. A at 166.) Dr. Toohey reported Plaintiff agreed
22 to a change in medication but asked if the medication would “prevent me from having
23 babies in the future” and would it “turn [him] gay.” (Id.)
24 The following day, Plaintiff did not report suicidal ideation, nor did he exhibit any
25 suicidal or self-harming behavior. (See id. at 6, 147.) Plaintiff was informed that he would
26 be discharged from the crisis bed on April 19, 2018. (Id.) On April 18, 2018, Plaintiff was
27 introduced to Social Worker Powers who told him that he needed to be placed in EOP
28 because CCCMS does “not have enough care” for him. (Id. at 197.) However, Plaintiff
1 informed Powers that he was not currently experiencing suicidal thoughts. (See id.)
2 Plaintiff disputes this by claiming that he told Powers that putting him CCCMS would put
3 his life at risk because he had access to razors and “if [his] thoughts of suicide get severe,
4 [he] will slice [his] wrist.” (Opp’n at 20-21.) On that day, it was documented eight times
5 that Plaintiff did not report suicidal ideation or self-harming behavior. (See Calderon Decl.,
6 Ex. A at 21-22.)
7 On April 19, 2018, at 1:00 a.m., Plaintiff informed staff that he had “superficially
8 cut his wrist with paper.” (Id. at 195.) When asked to “describe what he was feeling when
9 he engaged in this behavior,” Plaintiff “expressed frustration towards members of his
10 IDTT” and “insisted that he remain in EOP.” (Id.) Dr. Calderon determined that this was
11 not a suicide attempt because the cuts were superficial. (See Calderon Decl. at ¶ 40, Ex. A
12 at 160, 196-97.)
13 Later that day, Plaintiff informed Dr. Calderon that his medication was “somewhat”
14 working and that he rarely thinks about suicide. (Calderon Decl. at ¶ 41, Ex. A at 64, 76-
15 77.) Dr. Calderon administered a Suicide Risk and Self-Harm Evaluation. (See Calderon
16 Decl., Ex. A at 66-71.) Plaintiff reported that he “does not get called to attend groups in
17 C-yard as an CCCMS” but in “EOP, they come and get you.” (Id. at 66.) He further
18 reported that Plaintiff made “conditional threats toward the treatment team” and asked
19 “’what if’ he engages in self-injury,” whether that would “warrant another MHCB
20 admission.” (Id.) Psych Tech Milan and Dr. Brown both indicated that they believed
21 Plaintiff’s “statements were threats to MHCB treatment team and were stated for
22 manipulation reasons.” (Id.) Plaintiff was also “overheard speaking loudly with his
23 neighbor in cell 152 about how to get a higher level of care.” (Id. at 70.)
24 Plaintiff also met with his IDTT team on April 19, 2018. (See Calderon Decl., Ex.
25 A at 90-104.) The team found that “despite the lack of certainty about [Plaintiff’s]
26 motivations for seeking out EOP and DSH, the team was in agreement that [Plaintiff] did
27 not require this level of care for a major mental illness.” (Id. at 104.)
28 Dr. Jakobczuk met with Plaintiff after he was discharged from MHCB and found
1 Plaintiff to be “pleasant, calm and did not appear to be in any distress.” (Id. at 178.)
2 Plaintiff told Dr. Jakobczuk that he was in the “best [building] on C yard” and he received
3 a cellmate who he was familiar with that “mak[es] his adjustment easier.” (Id.) He denied
4 any “current desire or intent to kill himself.” (Id.) Every day for the following five days,
5 Plaintiff was seen daily by mental health staff and did not exhibit signs of acute distress,
6 but instead only reported “mild” suicidal thoughts on April 20, 2019. (Calderon Decl. at ¶
7 45, Ex. A at 42-62, 151.)
8 On April 22, 2018, Plaintiff reported to Dr. Tribble that he was “doing better in his
9 new housing unit because he knows some inmates there and feels comfortable; as a result,
10 he does not want to have his LOC changed to EOP.” (Calderon Decl., Ex. A at 60.)
11 II. Legal Standard
12 A court may grant summary judgment when it is demonstrated that no genuine
13 dispute exists regarding any material fact and that the moving party is entitled to judgment
14 as a matter of law. See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144,
15 157 (1970). The party seeking summary judgment bears the initial burden of informing a
16 court of the basis for its motion and of identifying the portions of the declarations,
17 pleadings, and discovery that demonstrate an absence of a genuine dispute of material fact.
18 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it might
19 affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby,
20 Inc., 477 U.S. 242, 248–49 (1986). A dispute is “genuine” as to a material fact if there is
21 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See
22 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
23 Where the moving party will have the burden of proof on an issue at trial, the movant
24 must affirmatively demonstrate that no reasonable trier of fact could find other than for the
25 movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where
26 the non-moving party will have the burden of proof on an issue at trial, the movant may
27 prevail by presenting evidence that negates an essential element of the non-moving party’s
28 claim or by merely pointing out that there is an absence of evidence to support an essential
1 element of the non-moving party’s claim. See Nissan Fire & Marine Ins. Co. v. Fritz
2 Companies, 210 F.3d 1099, 1102–03 (9th Cir. 2000).
3 If a moving party fails to carry its burden of production, then “the non-moving party
4 has no obligation to produce anything, even if the non-moving party would have the
5 ultimate burden of persuasion.” Id. But if the moving party meets its initial burden, the
6 burden then shifts to the opposing party to establish that a genuine dispute as to any material
7 fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
8 586 (1986). The opposing party cannot “rest upon the mere allegations or denials of [its]
9 pleading but must instead produce evidence that sets forth specific facts showing that there
10 is a genuine issue for trial.” See Estate of Tucker, 515 F.3d 1019, 1030 (9th Cir. 2008)
11 (internal quotation marks and citation omitted).
12 The evidence of the opposing party is to be believed, and all reasonable inferences
13 that may be drawn from the facts placed before a court must be drawn in favor of the
14 opposing party. See Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003).
15 However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” See
16 Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears
17 Holdings Corp., No. 11–09068, 2013 WL 1010547, *4 (C.D. Cal. Mar. 13, 2013)
18 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise
19 genuine issues of fact and defeat summary judgment.”). A “motion for summary judgment
20 may not be defeated ... by evidence that is ‘merely colorable’ or ‘is not significantly
21 probative.’” Anderson, 477 U.S. at 249–50 (citation omitted); see also Hardage v. CBS
22 Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce
23 evidence sufficient to create a genuine dispute of material fact, the moving party is entitled
24 to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
25 III. Analysis
26 Drs. Moreno and Calderon seek summary judgment with respect to Arellano’s
27 Eighth Amendment inadequate mental health care claims because evidence in the record
28 demonstrates that Plaintiff did not suffer from a serious mental health need and even if he
1 could show such a need, they were not deliberately indifferent to such needs because it was
2 their professional opinion that Plaintiff was not actually suicidal or a danger to himself or
3 others. (See Defs.’ Mem. of P&As at 16-20.)
4 Alternatively, Drs. Moreno and Calderon claim they are entitled to qualified
5 immunity because Arellano does not have a clearly established right to a “higher level of
6 mental health care following Defendants’ clinical assessments that Arellano’s supported
7 suicidality was not genuine.” (Id. at 24-25.)
8 A. Eighth Amendment Inadequate Mental Health Care Claims
9 The government has an “obligation to provide medical care for those whom it is
10 punishing by incarceration,” and a failure to meet that obligation can violate the Eighth
11 Amendment. Estelle v. Gamble, 429 U.S. 97, 103–05 (1976). In order to prevail on an
12 Eighth Amendment claim for inadequate medical care, however, a prisoner must show
13 “deliberate indifference” to his “serious medical needs.” Id. at 104. This includes “both
14 an objective standard—that the deprivation was serious enough to constitute cruel and
15 unusual punishment—and a subjective standard—deliberate indifference.” Snow v.
16 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by
17 Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). To meet the Eighth
18 Amendment’s objective requirements, the prisoner must demonstrate the existence of a
19 serious medical need. Estelle, 429 U.S. at 104. The Eighth Amendment’s subjective
20 requirement of deliberate indifference is a “high legal standard,” and a prisoner must
21 establish that the defendant “kn[e]w[] of and disregard[ed] an excessive risk to [his] health
22 and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057, 1060 (9th Cir. 2004) (internal
23 quotation marks and citation omitted).
24 1. Objective Standard: Serious Mental Health Needs
25 A sufficiently serious medical need exists if failure to treat his injury or condition
26 “could result in further significant injury” or cause “the unnecessary and wanton infliction
27 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks
28 omitted) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part
1 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)).
2 “A heightened suicide risk or an attempted suicide risk is a serious medical need. Conn v.
3 City of Reno, 591 F.3d 1081, 1095 (9th Cit. 2010), vacated, 563 U.S. 915 (2011), opinion
4 reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011).
5 Defendants argue that Plaintiff, at most, had a “generalized suicide risk, rather than
6 the “heightened suicide risk” required to establish a serious medical need.” (Defs. Memo
7 P&As at 17, citing Conn, 591 F.3d at 1095.) Specifically, Defendants contend that Plaintiff
8 only told Defendants that he was suicidal when his “clinical team informed him he was
9 being discharged to a lower level of mental health care.” (Id. at 18.)
10 Dr. Moreno attests that he met with Plaintiff on April 3, 2018, and found Plaintiff to
11 be “engaging in coping skills for improved mood,” and “exhibited future-forward thinking”
12 and thus, informed Plaintiff that he would be “discharged to CCCMS the next day.”
13 (Moreno Decl. at ¶ 30.) Later that night, Plaintiff informed a nurse that he had “intermittent
14 suicidal ideation.” (Id. at ¶ 31.) Dr. Moreno later performed a “Suicide Risk and Self-
15 Harm Evaluation” wherein he found Plaintiff’s “self-reported suicide attempt on March
16 24, 2018, to be “inconsistent.” (Id. at ¶ 33.) Dr. Moreno noted Plaintiff was “more agitated
17 that he was being discharged than exhibiting an effect more akin to someone with suicidal
18 ideations.” (Id.) Based on his observations, Dr. Moreno “concluded that [Plaintiff]
19 presented a moderate risk of suicidality” and his “reported desire to engage in self-harm
20 was conditional based on his housing placement and level of mental health care treatment.”
21 (Id. at ¶ 34, 36.)
22 Dr. Calderon attests that he examined Plaintiff on numerous occasions and was part
23 of his IDTT. When Dr. Calderon met with Plaintiff on April 10, 2018, he reported that
24 Plaintiff’s reports as to the status of his mental health were “vague and he appeared to be
25 exaggerating his symptoms.” (Calderon Decl. at ¶ 27.) On many occasions that Dr.
26 Calderon met with Plaintiff, other mental health staff documented no reports by Plaintiff
27 of suicidal ideation or exhibiting any suicidal or self-harming behavior. (See id. at ¶¶ 31-
28 34.) On April 18, 2018, Dr. Calderon met with Plaintiff and informed him “he would be
1 discharged from crisis bed on April 19, 2018. (Id. at ¶ 38.) On April 19, 2018, Plaintiff
2 “informed staff that he had cut himself.” (Id. at ¶ 40.) Plaintiff informed staff that “he did
3 not want to die, but that he was frustrated with his treatment team because he did not want
4 to be discharged and wanted to be treated at the EOP level of care.” (Id.) From this
5 information, Dr. Calderon determined that “this was not a suicide attempt because the cuts
6 were superficial.” (Id.) “Based on [Plaintiff’s] presentation, his history, and [mental-
7 health records,” Dr. Calderon concluded that Plaintiff’s “desire to engage in self-harm was
8 conditional based on his housing placement and level of mental health care treatment.” (Id.
9 at ¶ 46.)
10 Plaintiff claims in Opposition that he did attempt suicide by “pulling the chord on
11 my neck” but he stopped pulling before his “cellie woke up” causing him to think about
12 suicide “[two] more times but didn’t do it.” (Opp’n at 3.) In addition, he argues that there
13 are statements documented by Defendants and made by Plaintiff that he was having
14 suicidal ideation on multiple occasions. While Defendants do contest Plaintiff’s
15 credibility, and Plaintiff’s statements as to his suicide attempts are far from consistent, the
16 Court finds that there is evidence in the record that there is a triable issue of material fact
17 as to whether Plaintiff suffered from a serious medical need.
18 However, for the reasons set forth below, the Court finds there is no triable issue of
19 material fact as to whether Dr. Moreno or Dr. Calderon were deliberately indifferent to
20 those serious medical needs.
21 2. Subjective Standard: Deliberate Indifference
22 Deliberate inference “requires more than ordinary lack of due care.” Farmer v.
23 Brennan, 511 U.S. 825, 835, (1994) (internal quotation marks omitted) (citing Whitley v.
24 Albers, 475 U.S. 312, 319 (1986)). “[T]he official must both be aware of facts from which
25 the inference could be drawn that a substantial risk of serious harm exists, and he must also
26 draw the inference.” (Id. at 837.) Deliberate indifference “may appear when prison
27 officials deny, delay or intentionally interfere with medical treatment, or it may be shown
28
1 by the way in which prison physicians provide medical care.” Hutchinson v. United States,
2 838 F.2d 390, 394 (9th Cir. 1988).
3 “In deciding whether there has been deliberate indifference to a prisoner’s serious
4 medical needs, [courts] need not defer to the judgment of prison doctors or administrators.”
5 Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). However, “[a] difference of
6 opinion between a physician and the prisoner—or between medical professionals—
7 concerning what medical care is appropriate does not amount to deliberate indifference.”
8 Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). Rather,
9 “to prevail on a claim involving choices between alternative courses of treatment, a
10 prisoner must show that the chosen course of treatment ‘was medically unacceptable under
11 the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the
12 prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d
13 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta, 744 F.3d at 1076));
14 accord Gordon v. Cty. of Orange, 6 F.4th 961, 970 (9th Cir. 2021).
15 Dr. Moreno treated Plaintiff from his first MHCB stay from March 24 to April 4,
16 2018. (See Moreno Decl. at ¶¶ 14, 22, 23, 25, 30, 32.) Dr. Calderon treated Plaintiff from
17 April 9, 2018, to April 19, 2018. (See Calderon Decl. at ¶¶ 23, 27, 29, 31-32.) Plaintiff
18 claims “both were aware that I didn’t have a passive, moderate suicidal ideation” but rather
19 he had “acute suicidality.” (Opp’n at 17.) He claims they were both deliberately indifferent
20 to his serious mental health needs because he “told them daily that [he] thinks of suicide
21 but unable to act due to [having] been in MCHB where there’s no tools and [he is] under
22 watch 24/7.” (Id.) He claims that their recommendations that he be placed in a lower level
23 of care is evidence of their deliberate indifference. (See id.)
24 However, the undisputed evidence in the record shows Arellano has an extensive
25 and well documented medical history for these timeframes which shows he was continually
26 treated by prison psychologists, psychiatrists, nurses, and other mental health staff for his
27 mental health issues. It is undisputed that Plaintiff underwent comprehensive suicide risk
28 evaluations and his condition was discussed by teams of mental health professionals. Dr.
1 Moreno attests that there “was no change in Arellano’s clinical presentation between
2 March 24, 2018, and April 4, 2018, that would suggest there was an increased risk of
3 suicidality.” (Moreno Decl. at ¶ 38.) Dr. Moreno concluded that that Plaintiff “did not
4 express a genuine desire to die during my assessments or visits with him” and opines that
5 Plaintiff “reported increased suicidality after learning he would be discharged from the
6 MHCB to protest his return to his housing unit at the CCCMS level of mental health care.”
7 (Id.) Thus, it was the opinion of Dr. Moreno that Plaintiff should be returned to the
8 CCCMS level of care “because it was clinically inappropriate to recommend a higher level
9 of care at that time.” (Id.)
10 Dr. Calderon attests that “[b]ased on Arellano’s presentation, his history, and [his
11 mental health records], [he] concluded that Arellano’s reported desire to engage in self-
12 harm was conditional based on his housing placement and level of mental health care
13 treatment.” (Calderon Decl. at ¶ 46.) In Dr. Calderon’s opinion, Plaintiff exhibited
14 “maladaptive behavior” which led to his recommendation that Plaintiff “be returned to
15 regular housing following his MHCB stay from April 4, 2018 to April 19, 2018.” (Id. at
16 ¶ 48.) Moreover, it was his professional opinion that Plaintiff “did not express a genuine
17 desire to die during my assessments or visits with him” and this opinion was also based on
18 Plaintiff’s “clinical presentation, the evaluations by other clinicians, his IDTT, the
19 conclusion of the case conference, and Arellano’s repeated comments about the EOP level
20 of mental health care.” (Id.)
21 Plaintiff attempts to raise a triable issue of fact by claiming throughout his
22 Opposition that Dr. Moreno and Dr. Calderon purposefully did not document Plaintiff’s
23 claims to them that he was feeling suicidal. Plaintiff argues that neither Dr. Moreno nor
24 Dr. Calderon had “any evidence strong enough to justify why they believe I should be sent
25 to CCCMS.” (Opp’n at 12.) He claims it is “evident Dr. Calderon and all the team are
26 liars, making misleading and prejudicial reports, putting life at risk.” (Id. at 19.) Plaintiff
27 argues throughout his Opposition that Dr. Moreno and Dr. Calderon purposefully did not
28 document Plaintiff’s claims to them that he was feeling suicidal. Plaintiff argues that
1 neither Dr. Moreno nor Dr. Calderon had “any evidence strong enough to justify why they
2 believe I should be sent to CCCMS.” (Opp’n at 12.) He claims it is “evident Dr. Calderon
3 and all the team are liars, making misleading and prejudicial reports, putting life at risk.”
4 (Id. at 19.)
5 Plaintiff does not dispute that he was examined by Defendants and many other prison
6 personnel or given examinations to assess his suicidal risk. While Plaintiff repeatedly
7 insisted that he was entitled to a higher level of care, Plaintiff is not a medical expert, and
8 his unsupported lay opinion is insufficient as a matter of law to establish a genuine factual
9 dispute. See Estelle, 429 U.S. at 93 (stating that the question whether “additional
10 diagnostic techniques or forms of treatment is indicated is a classic example of a matter for
11 medical judgment”); Vasquez v. Cnty. of Santa Clara, 803 F.App’x 100, 102 (9th Cir.
12 2020) (affirming summary-judgment decision finding no deliberate indifference when
13 defendant, “the last mental health professional to evaluate [the decedent] before his
14 suicide,” “reviewed [his] medical records, consulted with the officer on duty, observed and
15 conversed with [him], and, in his professional opinion, determined that [he] was not
16 suicidal.”); see also Valdez v. Zhang, No. 20-cv-0736-JLS-WVG, 2023 WL 2657626, at
17 *7 (S.D. Cal. Mar. 27, 2023) (Plaintiff failing to “offer any evidence whatsoever that [his
18 doctor’s] clinical assessments and recommendations deviated from prevailing standards of
19 care” defeats any finding of deliberate indifference to an “excessive risk to plaintiff’s
20 health.”).
21 Here, the medical records before the Court establish that treatment provided to
22 Arellano medically appropriate under the circumstances. See Toguchi, 391 F.3d at 1058;
23 Jackson, 90 F.3d at 332. Arellano disagrees, but his lay opinion alone, unsupported by any
24 “particular parts of materials in the record, including depositions, documents, … affidavits
25 or declarations, stipulations, … admissions, interrogatory answers,” or other admissible
26 evidence which corroborates his conclusion or reasonably tends to show that Dr. Moreno
27 or Dr. Calderon chose any particular course of treatment with conscious disregard of his
28 needs, is insufficient to establish a genuine dispute. Fed. R. Civ. P. 56(c)(1)(A); Rivera v.
1 Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory allegations
2 unsupported by factual data cannot defeat summary judgment.”)
3 Based on the record before it, this Court finds no jury could reasonably conclude
4 that any named Defendant acted with deliberate indifference to Arellano’s claims of serious
5 mental health needs. Accordingly, the Court concludes that Defendants are entitled to
6 summary judgment with respect to Plaintiff’s Eighth Amendment claims.
7 B. Qualified Immunity
8 Finally, Defendants claim that they are entitled to qualified immunity with respect
9 to Plaintiff’s Eighth Amendment claims. (See Defs.’ P&As at 24.) On summary judgment,
10 courts generally resolve questions of qualified immunity through a two-pronged inquiry.
11 Tolan v. Cotton, 572 U.S. 650, 655 (2014). The first prong “asks whether the facts, ‘[t]aken
12 in light most favorable to the party asserting the injury, ... show the officer’s conduct
13 violated a [federal] right[.]’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The
14 second prong “asks whether the right in question was ‘clearly established’ at the time of
15 the violation.” Tolan, 572 U.S. at 656 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002));
16 see also Sharp v. Cnty. of Orange, 871 F.3d 901, 909 (9th Cir. 2016). The court is not
17 required to address the prongs in any particular order. See Pearson v. Callahan, 555 U.S.
18 223, 236 (2009) (“[T]he judges of the district courts and the courts of appeals should be
19 permitted to exercise their sound discretion in deciding which of the two prongs of the
20 qualified immunity analysis should be addressed first in light of the circumstances in the
21 particular case at hand.”).
22 However, where, as is the case here with respect to Arellano’s Eighth Amendment
23 claims, “no constitutional right would have been violated were the allegations established,
24 there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533
25 U.S. at 201; County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better
26 approach to resolving cases in which the defense of qualified immunity is raised is to
27 determine first whether the plaintiff has alleged the deprivation of a constitutional right at
28 all.”). Because the Court has found no genuine dispute with regard to Plaintiff’s Eighth
1 || Amendment deliberate indifference to serious medical needs against Defendants, it need
2 ||not also decide whether they would be entitled to qualified immunity.
3 || IV. Conclusion and Order
4 For the reasons stated above, the Court GRANTS Defendants Motion for Summary
5 || Judgment pursuant to Fed. R. Civ. P. 56 (ECF No. 29) and DIRECTS the Clerk of the
6 || Court to enter a final judgment in favor of Defendants on all claims and to CLOSE the
7 || file.
8 IT IS SO ORDERED.
9 || Dated: March 18, 2024 —— (2
10 lad \& (re
11 Honorable Todd W. Robinson
D United States District Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30 ee