Petition for Writ of Certiorari — Jensen v. Sweet Home Home One One Care Care Facility Facility (No. 06-546)

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\ Suprem

() prame Court, U.S

06-5460CT 17 2006

No.

OFFICE OF THE CLenn

IN THE

SUPREME COURT OF THE UNITED STATES

TOM JENSEN, Individually and as an advocate

for the rights and interests of his mother, Marguerite Jensen

(now deceased), a frail elderly institutionalized person,

Petitioner

SWEET HOME ONE CARE FACILITY

A business entity, et al.

On Petition for Writ ef Certiorari

To the United States Court of Appeals

For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Tom Jensen

P.O.Box 614

Oakland, CA. 94604

(510) 918-6667

Petitioner in propria persona

QUESTIONS PRESENTED

I. Did the court of appeals wrongfully fail to correct the

district court’s manifestly arbitrary failure to consider the

issues raised by the pleadings and the evidence supporting

them, and its manifestly arbitrary conclusions unsupported by

the evidence in favor of moving parties that foreclosed any

opportunity for Petitioner to make a showing on his claims

on the summary judgment motion in this case?

II. Did the court of appeals abdicate its ethical and

supervisory duties by (1) failing to correct a district court that

has a record and history of failing to consider evidence and of

drawing conclusions unsupported by the evidence in favor of

moving parties on dispositive motions, and (2) failing to

correct a manifest abuse of the federal court’s process by

moving parties, circumstances that are certain to recur and

prejudice other parties if not corrected?

III. Should this court make it clear that the arbitrary

conduct by the district court and the abuse of the federal

court’s procedure by the moving parties in this case that

foreclosed any opportunity for Petitioner to make a showing

on his claims discredits the Federal Courts and the Federal

Bar and 1s unacceptable practice in the federal court system?

PARTIES TO THE PROCEEDINGS BELOW

Petitioner/Plaintiff

Tom Jensen.

Defendants

Sweet Home One Care Facility, a business entity; Minerva

Mostrales, Soledad Almocera (“Sweet Home defendants”).

California Health and Welfare Agency (currently known as

the California Health and Human Services Agency),

California Department of Social Services, Community Care

Licensing Div., public entities; Elaine Arrington, Anita

Gopaul, Martha Lopez (“State defendants”).

Kaiser Permanente Medical Offices — Milpitas (a.k.a. Kaiser

Permanente Medical Group, Inc., Kaiser Foundation Health

Plan, Kaiser Foundation Hospitals) business entities; Bill Jue

MD (“Kaiser defendants”).

Peter Jensen, Beth Wells (“Jensen/Wells”).

TABLE OF CONTENTS

page

BOR gg og Oy |S ee i

PARTIES TO THE PROCEEDINGS BELOW ................ 11

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FARE FAR FPURFIRE EID pcerercvnsidoccasevessouscoesensevens Vv

PETITION FOR WRIT OF CERTIORARI ................... l

EINE diccocaunksaneipkeaus cpa baeeedessceseced vier: I

ST ace cnnbu tid eatsehen icin agae cuisine tedesoruibdantads l

RELEVANT CONSTITUTIONAL, STATUTORY, AND

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PUPPETS SIE BON GIRS cererccsccccenctovcecescesersonsees |

A. Facts Supporting Petitioner’s Claims and Facts

Related to the Questions Presented .................... l

B. Procedural History in District Court before

Summary Judgment and Facts Related to the

NE TID ors cacvcnccvsncaveccevevasensesosenc 12

C. Proceedings on Summary Judgment and Facts

Related to the Questions Presented ................... 18

D. The Decisions of the Court of Appeals ............... 21

REASONS FOR GRANTING THE WRIT.

A. The District Court Arbitrarily Foreclosed any

Opportunity for Petitioner to Make a Showing

I ce taeegds ceencevouuncaudsueteicureusseemenes 22

1. Petitioner’s Pleadings and Detailed Pleaded

Facts and Evidence Raise Genuine Issues of

Material Fact that Moving Parties and the

Court Failed to Mention and Dispute ........ . <a

2. The District Court Arbitrarily Based its

Determination of the Disputable Issues of Fact

on Moving Parties’ Version of the Facts Instead

of on the Issues Raised by the Pleadings .......... 24

3. The District Court’s Arbitrary Failure to

Consider the Issue of the Neglect of Petitioner’s

Mother Foreclosed any Opportunity to make a

EOI ON GRY CID oes ceiceccscnccoverasaescwes 26

4. The District Court’s Arbitrary Judgment on

Jensen/Wells’ Motive and Intent foreclosed any

Opportunity to Make a Showing on Claims

SENET FONG EOE oc ciicsssccntenvcnsacisvesseeries 26

5. The District Court’s Arbitrary Adoption of

Moving Parties’ Misrepresentations of the Issues

Raised by the Pleadings Foreclosed any

Opportunity to Make a Showing on Petitioner’s

1* Arhendiment ClaHOS ......606sspenvecencessevcseves 27

B. Proper Consideration of the Dispositive Factual

Issue Raised by the Pleadings Shows that the

Judgment in this Case is a Manifest Injustice ........ 27

C. The District Court Has a Record and History of

Failing to Consider Evidence and Drawing

Conclusions Unsupported by the Evidence ......... 29

C. The Judgment of the Court of Appeals

Improperly Ratified an Arbitrary Judgment

Pursuant to a Pattern of Arbitrary Conduct by

Se ee CE 2 age pen reset ei naaeeee 29

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TABLE OF AUTHORITIES

Federal Cases

page

Adikes v. Kress, 398 US 144 (1969) .................. we. 23, 24

Anderson v. Liberty Lobby, Inc.,

a a wena ne daeinanigeieledelin 23, 24

Carmona v. Toledo, 215 F.3d 124 (1" Cir. 2000) «2.0.20... 17

Clark v. Coats & Clark, Inc.,

OEE CW, FIDE eis ssncssveceosivestxesousesincieas 23

Goka v. Bobbit, 862 F.2d 646 (7" Cir. 1988) .......0..0000. 20

Headwaters Forest Defense Fund v. County of Humboldt,

240 F.3d 1185 (9" Cir. 2001) ......... cece cece cee eeeeeee. 29, 30

Hudgens v. NLRB, 424 US 507 (1972) ............. eee 13,27

Hufford v. McEananey, 249 F.3d 1142 (9" Cir. 2001) ...... 28

Humboldt County v. Headwaters Forest Def.,

ROGET, BOE COOEY occ vince ccucccecovsccectcceccscvvstucseesss 29

Jenkins v. McKeithen, 395 U.S. 411 (1965) .................. 13

Jones v. Blanas, 393 F.3d 918 (9" Cir. 2004) .0....00.. 0c 3

Keyser v. Sacramento City Unified School Dist.,

265 F.3d 741 (9 Cir. 2001) ..........0.ccccccecceccecesscecevees 5

Kodak v. Image Technical Services,

SE OO oe oe a eeu aw ddamnnabeehes 2,23

Nissan Fire & Marine Ins. Co. v. Fritz Companies,

210 F.3d 1099, 1105 (9 Cir. 2000) ................0.00.c0sceecoesees 23

Perry v. Sinderman, 408 US 593 (1972) .............0..5. 26, 28

West v. Atkins, 487 US 42, 49 (1988) ......... 0. cece cece ee ee 22

White v. Lee, 227 F.3d 1214 (9" Cir. 2000) ................-. 28

Federal Rules

nage

Federal Rules of Evidence 803(3) .................. iéhudeodede 27

State Law

California Health and Safety Code § 1569.35 ............ 9,21

Cartarein Prepets COGS SOILD occ ccsccesccescssccccsscsececesss 8

State Regulations

California Code of Regulations, Title 22,

Ee FED aincevics cesceenaecal 11,13

Byrne | 2) ori mee 11,13

III i ucitnais cunts qukoietintieeiinaae 29

Legal Treatises

Wright, Miller, Kane, Federal Practice and Procedure,

Se i ER eee enna ete cee ee econ 8

PETITION FOR WRIT OF CERTIORARI

Tom Jenser “-r himself and as an advocate for the rights

and interests 01 mother Marguerite Jensen, a frail elderly

institutionalized person (now deceased), respectfully

petitions for a writ of certiorari to review the judgment of the

U.S. Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The May 18, 2006 decision of the U.S. Court of Appeals

for the Ninth Circuit is reproduced at App.1. The January 31,

2005 decision of the U.S. District Court for the Northern

District of California granting defendants’ summary

judgment motions 1s reproduced at App.7.

JURISDICTION

This Court has jurisdiction over the Petition for Certiorart

pursuant to 28 U.S.C. § 1254(1) and Rules 13.1 and 13.3 of

this Court. This is a petition for review of a decision of the

U.S. Court of Appeals, Ninth Circuit filed on May 18, 2006.

On June J}, 2006 Petitioner filed a timely petition for

rehearing and for rehearing en banc of that decision, which

was denied by an order filed on July 21, 2006.

RELEVANT CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

The relevant constitutional, statutory, and regulatory

provisions are reproduced in the Appendix at App.39-46.

STATEMENT OF THE CASE

A. Facts supporting Petitioner’s Claims and Facts

Related to the Questions Presented

In the Fall of 1989 Petitioner had a sudden devastating -

illness characterized by malaise, profound fatigue, and

significant cognitive impairment. Several months after the

onset of his illness, Petitioner received a medical diagnosis of

“chronic fatigue post-viral syndrome.” Several years later he

also received a medical diagnosis of “chemical sensitivity.”

App.94 (Pt’s declaration 4] 8-14). Doc # 345, Ex.B-2, 4, and

5; Doc # 360 at 9] 4, 5, 7, and Excerpts of Record, V.1 (ER),

pgs.153-161 (Pt’s declarations and medical records).

After his initial illness, Petitioner suffered frequent severe

exacerbations of his symptoms for a period of many years.

During severe exacerbations, Petitioner would suffer

debilitating malaise and pain, and would sometimes become

marginally coherent, could not read or remember what he had

read, could not alphabetize or do simple arithmetic, became

uncoordinated, and his speech would become slurred. Id.

Eventually, Petitioner discovered several non-prescription

medications that would moderate his severe symptoms, and

acquired enough knowledge and experience to understand

and manage his illness by avoiding food and chemical

triggers, by antibiotic treatment, by curtailing his physical

activities, and by rest and recuperation. The orginal

symptoms still continue as do daily exacerbations, but

Petitioner is now able to manage to avoid severe .

exacerbations of them. Id.

Defendants Jensen/Wells, Petitioner’s siblings who were

responsible for Petitioner’s mother’s care, had negative and

inappropriate reactions to Petitioner’s illness and symptom

expression which led to his necessary estrangement from

them. Id. Petitioner would not have become involved in the

circumstances of the neglect of his mother’s personal and

health care, but for his mother’s entreaties to him, her evident

sense of desperate need, Petitioner’s sense of duty to her, and

because Jensen/Wells reactions to Petitioner’s health

problems informed Petitioner to be concerned that they

lacked competence to care for her. In coming to the aid of his

mother, Petitioner significantly compromised his personal

and health needs. App.95 (414)!

? Instead of properly treating this evidence as “correct,” Kodak infra,

the court’s unsupported “opinion” was that Petitioner’s motivation was

his purported “vengeance” against his siblings. App.37 (see bold text).

In 1997, whilé under the care of defendants Jue and

Jensen/Wells, Petitioner’s father developed a urinary tract

infection (UTI) that wasn’t diagnosed and treated until it

involved his kidneys and became acute, requiring his

hospitalization. He died some months later. Before he was

hospitalized, Petitioner noticed that his father developed

cognitive impairments that weren’t normal for him. After his

mother became il] Petitioner used this information, and his

mother’s similar cognitive deterioration to inform him of his

mother’s health care needs. SAC 415 2 (find SAC at App.47-

93). App.100 (text of Pt’s verified handwritten letter to Jue

alleged in SAC 431). ER 46 (excerpt from Pt’s verified

handwritten letter alleged in 4 32).

In the Spring of 1998, after his father died, Petitioner’s

mother on her own initiative made repeated complaints to

him about the circumstances of her care. In order to

ameliorate her expressed sense of loneliness and

abandonment by her family, Petitioner visited her frequently

and regularly during 1998. App.96-97 (Pt’s declaration {[{|5-

6). SAC 9911-12, 42, 68-70. Doc # 345, Ex.B-2 at pg.7, and

Doc # 359 at §§|5-6 (Pt’s declarations). Petitioner’s mother

was hospitalized on 7/9/98 for a broken hip, and was treated

at the hospital after surgery for a hospital acquired UTI. Doc

# 349, Ex.B, pg.A-18 (Hospital record).

Petitioner’s mother suffered a serious deterioration of her

health in the winter of 1999 while she resided at Sweet Home

that was not reported to or treated by his mother’s doctor,

Kaiser defendant Dr. Jue. SAC 4§13-15. App.97-98 (| 7-8

of Pt’s declaration). App.137(S.H.’s admission of. Pt.’s

mother’s deterioration). App.120-21 (Pt’s verified 9/3/99

letter to Jue describing course of illness). Over a period of

> Petitioner verified §§ 11-74 of the SAC (same in FAC), and his

handwritten documents submitted as evidence, in his declaration in

support of his opposition, making them an “affidavit” for purposes of

Rule S56(e). Doc # 343 (Pt’s declaration). See Jones v. Blanas, 393 F.3d

918 (9" Cir. 2004)(citing cases). (11-74 were also verified by other

declarations in the S. J. record. E.g. Doc ## 345, Ex.B-1; 376 at 45.

time Petitioner observed Sweet Home’s neglect of his

mother’s personal care. SAC 4914-22. Petitioner reported

the deterioration of his mother’s health and Sweet Home’s

neglect of her personal care to Kaiser defendants and to

Jensen/Wells in the spring of 1999. SAC 4 23, 30-34

(Kaiser/Jue), 35 (Jensen/Wells).

Petitioner made two visits with his mother to Jue seeking

diagnosis and treatment for his mother’s deteriorated health.

SAC 424. ER 44-45, 73 (med. records of 4/16/99 and 5/27/99

visits). At the first visit Jue did a urinalysis for his mother

which returned positive for infection with Klebsiela

pneumonia bacteria. ER 45. On 5/26/99 Petitioner sent a

letter to Jue reporting his mother’s signs and symptoms of

diminished cognitive abilities and lower abdominal

tenderness, suggested to him that she suffered from UTI and

advocated for its treatment, and mentioned that his father’s

UTI had been allowed to become acute requiring admission

to the hospital, and that he didn’t want that to happen to his

mother. SAC 431, App.99-100. Attached to the letter was

Kaiser’s “Self Care Tips” for urinary tract infection stating,

inter alia, that “discomfort in the lower abdomen” is an “early

symptom” of UTI, that the unsanitary post-toilet cleaning

practices by Sweet Home he observed and reported to Jue

were risk factors for UT1, and that untreated infections may

spread to the kidneys. App.101 —102 (Self Care Tips).

The second visit to Jue on 5/27/99 occurred after

Petitioner’s mother coughed up a large y-shaped mucous

plug from her lungs which she had saved in a tissue for

Petitioner to inspect. SAC 9915, 26. App.108-109 (Pt’s

deposition). Jue did not offer a diagnosis or any treatment for

his mother at these visits. SAC 424.

Jensen/Wells responded to Petitioner’s reports to them

and to Jue of the neglect of his mother by Sweet Home with

malice instead of concern, stating their state of mind in a

6/7/99 e-mail of, inter alia, “I have had it with him jerking

me (us) around,’ App.110-I1 (text of e-mail), and flatly

denied his reports at a meeting with Petitioner. SAC 435.

Jensen/Wells also entered into an agreement with Jue that

Jue would “not communicate with Mr. Jensen further

regarding Marguerite’s health care,’ ER 54(declaration of

Jue), and sent a letter to Petitioner on 6/24/99 stating, inter

alia, that his conduct “had become unacceptable.” SAC 437.

Doc # 341(Pt), Ex.A at 11 (Jensen/Wells’ letter).

On 6/24/99, Petitioner sent a letter to Jue, the Kaiser

Patient representative, and to Jensen/Wells asking Kaiser to

take remedial action for his mother, and asking that Kaiser

“counsel” Wells regarding her “responsibility to ensure

quality of care.” ER 47 and 76. App.112-!3 (text of Pt’s

verified handwritten cover letter to Jue in which he reported

the incident described in 419 of the SAC). Kaiser defendants

never responded to this or the previous letter Petitioner sent

_to Jue. SAC 430. On 8/15/99 Jensen/Wells sent a letter t

Petitioner stating, inter alia, “you have totally alienated

[Wells] from you... and also alienated the people at Kaiser [{ ]

and at Sweet Home.” SAC § 38. ER 77 (Jensen/Wells’

8/15/99 letter).

After Petitioner’s mother expelled her mucous plug, she

began to cough up large quantities of clear then purulent

mucous. Petitioner’s mother expressed her concen to him

about the purulent mucous. App.114-15 (text of Pt’s verified

handwritten audio tape transcript). Since defendant Jue had

been unresponsive to Petitioner’s reports of his mother’s

symptoms, Petitioner took his mother to Dr. Derek Jue of

Washington Newark Medical Group on 7/8/99. Petitioner

brought a sample of his mother’s purulent sputum to the

doctor for him to inspect. App.116 (text of 9/13/99 letter

from Derek Jue faxed to Petitioner), ER 7-8(medical

> This is an admitted act of agreement to bar Petitioner from access

to Kaiser services for his mother alleged in the SAC at 9104. Jensen/

Wells’ letter, as well as all the other adverse actions taken in close

proximity of time to Petitioner’s reports of the neglect of his mother, if

properly treated in the light favorable to Petitioner, are evidence of the

parties’ retaliatory or discriminatory motive and intent. Keyser v. Sacra-

mento City Unified School Dist., 265 F.3d 741, 751-52 (9" Cir. 2001).

records). Derek Jue diagnosed her with “bronchitis” and

prescribed antibiotics, which were never administered. SAC 4

27. App.120-21 (Pt’s verified 9/3/99 letter to Jue). Derek

Jue’s diagnosis was based on her “suspicious chest x-ray, the

physical exam, and the history of the illness.”

On 8/20/99 Petitioner witnessed his mother’s outburst of

irritation at Sweet Home staff over denial of her prescribed

prn (taken as needed) symptom relieving asthma medication

and recorded his mother’s explanation of it. App.117-19

(text of Pt’s verified handwritten audio tape transcript). And

see App.136 (S.H.’s admission that Pt’s mother was denied

access to her prn medication when she needed it and was

irritated about it).

On the basis of Derek Jue’s diagnosis and on the fact that

his mother improved after the purulent mucous was cleared

from her lungs, Petitioner believed that her mucous plugging

and bronchitis had been the cause of her deteriorated health

and her continuing symptoms. Accordingly, on 9/3/99

Petitioner wrote his third letter to Kaiser defendant Jue

reporting his mother’s history of illness and Derek Jue’s

diagnosis of his mother’s bronchitis, and stated his concerns

and his hope that “you [ ] are willing to cooperate in

resolving them.” App.120-123 (text of Pt’s handwnitten

letter). Jue did not respond to this letter. SAC {4 30. Instead,

Jue filed an “Unusual Occurrence Report” with his Kaiser

defendant employer on 9/9/99 stating that Petitioner “recently

mailed another letter of a litany of concerns ... I am

concerned about his persistent behavior and feel somewhat

uneasy and threatened” and asking “can we place a patient

alert re this.” ER 99-101. Mostrales admitted to com-

municating by telephone with Wells on 9/8/99 concerning

Due to Petitioner's mother cognitive impairments she generally

could not answer direct questions related to her care, but she could

remember past events related to what was on her mind at the time. Doc #

345, Ex.B-2 at pg.6 (Pt.’s declaration). Doc # 335(S.D.), Ex.C at 71

(Pt.’s deposition).

Wells’ knowledge of Petitioner’s letter to Jue and Jue’s

response to it, stating that Wells reported to her, inter alia,

that “Kaiser has legal action regarding Tom,” and admitted,

inter alia, Mostrales’ state of mind that Petitioner’s reports to

Kaiser were “unacceptable behavior” creating “troubles [] for

[] my facility.” App.124 (text of Mostrales’ diary entry). On

9/9/99 Jensen/Wells sent Petitioner a letter from Jensen’s San

Diego residence stating, inter alia, “you have taken her on at

least one unauthorized medical visit. ... You are not to take

her for any medical visits.” SAC 439. ER 92 (letter).

On 10/13/99, Petitioner took his mother to Derek Jue

because she was showing signs of severe breathing distress

and because she had received no treatment for her bronchitis.

SAC 4 40. Doc # 330(SH), Ex.2 at 177 (Pt’s deposition.).

Sweet Home defendant Mostrales, who had been called by

the caregiver to intervene, admitted her state of mind that

Petitioner “is ...paranoid and mentally ... sick himself not his

mother.” App.125 (Mostrales’ diary entry).2 On 10/16/99

Jensen/Wells sent a letter to Petitioner stating that he was

“denied further access to Sweet Home.” SAC 941, ER 105.

On 11/5/99 petitioner reported the neglect of his mother’s

personal and health care and the retaliatory actions of

interference and reprisal in response to his reports taken

against him by Sweet Home and Jensen/Wells to State

defendant Gopaul. Petitioner submitted to Gopaul a “detailed

[hand] written report containing documentation and evidence

of the neglect of his mother and the untreated episode of

illness he observed.” SAC 4§43, 52. The report contained,

inter alia, Petitioner’s observations of the neglect of his

mother contained in SAC 4§]14-23, an account of his health

= See SAC 4 47 (Ombudsman states in close proximity in time to

Mostrales that Pt is “paranoid” and refers him to mental health facility).

Mostrales was an admitted full time Kaiser employee, and except

for this incident has no personal knowledge of Petitioner’s activities at

Sweet Home. No witness in this action besides Petitioner has personal

knowledge of what occurred at Sweet Home. ER 91 at 94, ER 187 at 6,

Doc # 345, Ex.B-2 at pgs.5-6 (Pt’s declarations).

problems and Jensen/wells’ inappropriate reactions to them,

ER 153-54, and the documents at App.99-102 and 112-123.

On the same day Petitioner filed his report with Gopaul,

Petitioner’s mother stated to Gopaul that “she wanted her son

Tom to visit.” App.126 (text of Gopaul’s Detail Supportive

Information).’ SAC 10, 42. See App.43-44 (Cal.Prob.

Code § 4270). State defendants conducted an investigation,

but the investigation was not of Petitioner’s report of Sweet

Home’s neglect of his mother’s personal and health care.

Instead it was a “confidential” investigation of allegations

against Petitioner Sweet Home and Jensen/Wells had made to

State defendants in response to his report to State defendants.

SAC 453. App.127(Gopaul’s 12/2/99 fax to Petitioner)®

These allegations included Jensen/Wells’11/22/99 letter to

State defendants stating that Jensen/Wells believed Petitioner

was “mentally unbalanced,” SAC, Ex.C-l(App.90), Wells’

hearsay and opinion that he was “disruptive and mentally

unbalanced.”? ER 117 (Gopaul’s 11/18/99 Detail Supportive

information). By inference it also included Sweet Home’s

admissions of statements Mostrales had made that defendants

agreed, inter alia, that Petitioner’s reports of Sweet Home’s

neglect of his mother’s personal and health care were

“prompted” by Petitioner’s “mental and personal behavioral

problems,” SAC Ex.C-1, 2,4° App.124-25(Mostrales’ diary),

“ Gopaul did not read Petitioner’s report. SAC 456-57. And see

note four.

® The fax is not a copy of the original, ER 184 (Pt’s declaration),

giving rise to the inference that documents related to the confidential

investigation were spoiliated). See note 20.

? In their 11/29/99 telephone communication, Jensen/Wells stated to

Gopaul “the letter was on the way,” and Gopaul “asked directly about

our barring Tom from the facility, but seemed to understand my

explanation.” ER 167 (11/22/99 fax of Jensen/Wells).

Statements are an admission of Sweet Home’s part in advocacy for and

agreement to barring Petitioner from the Sweet Home facility, and from

access to Kaiser facilities and services for hts mother. SAC §§88, 90,

91(d), and 104.

and the Ombudsman’s statement that Petitioner was

“paranoid,” based by inference on statements

Jensen/Wells and Sweet Home made to them. SAC 4|47(see

note 5 and related text). ER 6 (evidence of communication

between Ombudsman and State defendants).""

In a 1/28/00 meeting with Petitioner, scheduled after

much delay and in response to Petitioner’s repeated

objections to his being barred from Sweet Home, Sac 4]54-

~ 55, ER 87, 112 (Pt's verified handwritten letters to State

defendants), State defendants stated to him their belief that he

had caused “turmoil at Kaiser,” and announced their decision

that they intended to impose visitation restrictions on his

access to Sweet Home and to association with his mother.

SAC 4959-60. In response to Petitioner’s inquiry, State

defendants admitted they had not read Petitioner’s detailed

report containing documentation and evidence of the neglect

of his mother’s personal and health care before reaching their

conclusions. SAC 4/56. After making this admission, the State

defendants agreed to do a new investigation within “10

days.” SAC 458. App.43 (Cal.H.& S.Code §1569.35).

The State defendants, however, did not initiate the second

investigation until shortly after the office of State Senator Liz

Figueroa intervened at Petitioner’s request. SAC 463. ER

121-22 (Pt’s 2/21/00 letter to Arrington). App.128 (text of

Arrington’s 3/29/00 letter stating investigation will be

“completed by 3-10-2000” faxed to Petitioner by the office of

Senator Figueroa on 03/06/00).

During the “new” investigation, proposed visitation

restrictions for Petitioner were concurrently discussed among

State and Sweet Home defendants and Jensen/Wells,

indicating that the “new” investigation was merely pro forma

and a sham. Jensen/Wells’ 3/1/00 e-mail, App.129, mentions

4 The Ombudsman refused to respond to Petitioner’s subpoena, and

the district court refused to respond to Petitioner’s request to order them

to do so. ER 164-65. And see note 20 (State defendants produced no

results of their “confidential” investigation in spite of court order).

State defendants’ previously decided plan of imposing

visitation restrictions, and Jensen/Wells stated “[t}he rules

would, I think, be pretty much what we asked for before.” On

3/5/00. Jensen/Wells communicated with Sweet Home

pursuant to agreement to terms and conditions of the

Visitation restrictions. App.130. On 3/7/00, the Complaint

Investigation Report was signed by Gopaul and Sweet Home

allowing “15 days” to submit a “plan — outlining the

visitation.” ER 138. The “plan” dated 3/10/00 is the

“Visitation Restrictions for Tom Jensen” at SAC, Ex.A, pg.2.

After receiving the Visitation Restrictions for Tom Jensen

from Sweet Home on 3/13/00, on 3/14/00 State defendants

contacted Janet McKenzie, “staff attorney” of the

Department of Social Services seeking her approval of them.

ER 142 (McKenzie fax # in header of visitation restrictions),

ER 144, 145 (Jensen/ Wells’ e-mails). App.150 (S.D.’s

admission of 3/16/00 phone call between Gopaul and

McKenzie). On 3/16/99 McKenzie called Jensen/Wells at

Gopaul’s request and “[sJhe over and over strongly

recommended that we get the Conservatorship done ASAP.

She said a Restraining Order could be walked through in |

day.” ER 145 (Jensen/Wells’ 3/16/99 e-mail). On 3/20/00

Jensen/Wells faxed McKenzie, ER 147, explaining that they

had been advised by their attorneys not to pursue an R.O.

“because if we were to persist and lose,, it would damage our

case for a Conservatorship,” and proposed effectively the

same restrictions submitted by Mostales, and that State

defendants present them to Petitioner. On 3/20/00 McKenzie

faxed a response to Jensen/Wells, App.131-32, stating, inter

alia, that State defendants would not authorize Sweet Home

“to do anything that is contrary to your mother’s personal

“ The district court ignored Petitioner’s request to order production

of McKenzie’s documents. App.!49-153. See notes lland 20. The

Court also misrepresented the Jensen/Wells e-mails as _ reporting

conversations with “emplovees of DSS and Licensing Div.” App. 18. The

e-mails in fact reported on Jensen/Wells’ multiple conversations with

Gopaul and Arrington. See e.g ER 134, 136, 143, 144, 150.

rights” without a court order, and that visitation restrictions

could not be legally presented to Petitioner by State

defendants “even if they were legally enforceable.”

Contrary to McKenzie’s advice, the visitation restrictions

were presented to petitioner by fax by State defendant

Arrington on 4/3/00.2 SAC 465-66, Ex.A, pg.l. Also

contrary to McKenzie’s advice, the visitation restrictions

violated Cal. Code of Regs. Title 22, § 87572(a)(6) and (11)

prohibiting interference with Petitioner and his mother

meeting in private during regular visiting hours and leaving

the facility at any time. App.44. The visitation restrictions

also stated “Done in compliance with the directions and

advice of Anita Gopaul, LPA and Elaine Arrington, LPS of

Community Care Licensing.”""* SAC Ex.C-2. In_ the

meantime, Petitroner had remained admittedly unlawfully

barred from the Sweet Home facility and from association

with his mother against her express wishes during the

delayed five month course of the investigation.

Petitioner did not visit his mother after the restrictions

were imposed because, inter alia, the defendants’ pattern of

conduct and the results of the investigation appeared so

irrational and threatening to Petitioner that he feared for his

personal security if he appeared at Sweet Home. SAC

{W9l(c), 106(b), (c). Doc # 330(S.H.) Ex.2 at 250 (Pt.’s

depo.). Petitioner also feared for his mother’s life due to the

neglect of her health care, and gave priority to legal research

for a remedy for her which became a request in the complaint

for injunctive relief. FAC “111-112, Doc # 3. Therefore,

unknown to Petitioner until discovery, 2 weeks after the

restrictions were imposed on 4/3/00, and a year after

petitioner first reported his mother’s signs and symptoms of

This fact was materially misrepresented and misstated by the

district court in its S.J. Order by its erroneous statement that Sweet Home

faxed it to Petitioner. See bold text at App.18, and see App.83

This fact was materially misrepresented and misstated by the

district court by its substitution of “DSS employees” for defendants

Arrington and Gopaul. See bold text at App.19. And see App.85

UTI, Petitioner’s mother was admitted to the hospital on

4/19/00 with acute pyelonephntis (kidney infection) with

right staghorn calculus (infected kidney stone), bacteremia

and “probable sepsis” with Klebsiela pneumonia, the same

bacteria Jue found a year earlier in her urine, and dysphagia.

ER 45 (Jue’s 4/21/99 patient progress record). ER 48-50

(Hospital Transfer Summary). App.133-34 (pg.3_ of

Summary). Kaiser’s documents and moving papers admit

that the abdominal tendermess Petitioner reported his mother

suffered from in his 5/26/99 letter to Jue 1s a symptom of UTI

that justified antibiotic treatment before the infection became

acute, admits that UTI’s are “especially dangerous for older

people,” and admits that if not treated, UTI’s “may spread to

the kidneys and cause more serious problems.”

App.101(Kaiser “Self-Care Tips”). App.135 (Kaiser’s Ex.D

at 4).

On 3/6/00 the day before the Complaint Investigation

Report was signed, and Jess than 6 weeks before Petitioner’s

mother was admitted to the hospital, Sweet Home wrote a

letter admitting Petitioner’s mother’s condition had

progressively deteriorated from the time Petitioner first

observed and reported it, and had “recently” significantly

deteriorated. App.137 (Sweet Home letter). But neither

Sweet Home nor State defendants, who were supposedly

investigating Petitioner’s report of the neglect of his mother’s

personal and health care at that time, did anything about it.

Even when her need for medical evaluation and treatment

had become clearly obvious. By the time Petitioner’s mother

was belatedly admitted to the hospital for treatment her

“prognosis was poor,” ER 52 (hospital record), and she died

soon after on 5/19/00. ER 53 (death certificate).

B. Procedural History in District Court before

Summary Judgment and Facts Related to the Questions

Presented

On 9/11/00 Petitioner filed suit, stating four claims in the

FAC filed 10/10/00, and asking for injunctive and declaratory

relief. The verified facts of the FAC are the same as in the

SAC.

Defendants filed Rule 12(b)(6) motions to dismiss.

However, instead of deeming Petitioner’s allegations as

admitted and assuming the burden of proving on that basis

that no claim was stated, State and Sweet Home defendants

alleged purported facts outside the pleadings that turned their

motions to dismiss into a contest between their version of the

facts alleged in their motions and the facts alleged in

Petitioner’s complaint.° State and Sweet home defendants

failed to admit to the pleaded neglect of petitioner’s mother’s

personal and health care and Petitioner’s pleaded agreement

between State and Sweet Home defendants to impose

unlawful visitation restrictions “without just cause, and in

retaliation for his reports of the neglect of his mother,” FAC

"87. State defendants stated, inter alia, that “There is no

question that the restrictions imposed were reasonable.” Doc

#9 at 7. Sweet Home argued, inter alia, that Petitioner had

“no constitutionally-protected right to speak at or assemble

on the premises of Sweet Home,” citing Hudgens v. NLRB,

424 US 507 (1972),° Doc # 9 at 5 and 7. The district court

granted defendants’ motions to dismiss. Doc # 73, and

Petitioner appealed.

The dispositive issue of error on appeal was the failure of

the district court to treat the factual allegations of the

complaint as true and draw all reasonable inferences in the

plaintiff's favor. Petitioner argued in his Reply Brief at 10

that, as opposed to the defendants’ version of the facts, “the

actual facts and circumstances show that elder abuse,

Jenkins v. McKeithen, 395 U.S. 411, 421 (1965) (“allegations of

the complaint are taken as admitted”).

'® The Hudgen's factual context has no relationship to Petitioner’s 1“

Amendment claims because, inter alia, the claims involved speech that

did not occur on Sweet Home’s “private property.” Moreover, Sweet

Home was Petitioner’s mother’s home, she had a private room, and state

regulations required that she be allowed to meet with Petitioner in

private. App.44 (Cal. Code of Regs., Title 22, § 87572(a)(6) and (11)).

fraudulent and pretextual allegations, a grossly negligent

investigation, and other misconduct by state and private

defendants occurred; resulting in visitation restrictions that

were constitutional deprivations, not genuine restrictions.

Accepting the factual allegations of the complaint as true, the

visitation restrictions are unreasonable ...” (emphasis in

original). The Court of Appeals reversed and remanded on

Petitioner’s “section 1983 claim based on the visitation

restriction” stating that private defendants as state actors

“could not unreasonably restrict his 1 and 14" Amendment

rights,” and that Petitioner had alleged as a fact supporting

his claims that defendant Jensen had falsely accused him of

being disruptive that the district court had improperly relied

on for the truth of the allegation’ ER }.

On remand, State and Sweet Home defendants stated in

their case management statement contentions that “issues

relating to his mother’s health or care are no longer relevant,”

ER 3, and proposed at the conference, to submit to the court

for its consideration without briefing, Petitioner’s complaint

redacted of, inter alia, Petitioner’s allegations of the neglect

of his mother’s personal and health care. App.138-39 (text of

pgs. 8-10 of transcript of conference). Over Petitioner’s

vigorous objections, the court agreed to the substance of this

proposal. After exhausting efforts in opposition to this

proposal, Petitioner filed a motion for recusal for what

appeared to be the district court’s continuing predisposition

favoring defendants’ version of the facts. The motion was

granted. Doc # 182.

Immediately after reassignment, and before a case

management conference had been held, Sweet Home opened

discovery with a document request. Petitioner objected to

opening discovery before the disputed issues of relevancy

“It is notable that defendant Jensen’s allegation of “disruption” is

at best hearsay from Mostrales based on hearsay from Sweet Home staff.

considered in the light favorable to Petitioner it is a pretext for retaliation

or discrimination. See notes 3 and 6.

were settled. Also immediately after reassignment, on

3/25/03, Petitioner filed a motion to amend, Doc # 196. After

Petitioner filed his motion, State defendants filed a second

motion to dismiss the FAC, Doc # 216, claiming absolute

prosecutorial and qualified immunity wholly based on

assumed facts outside the pleadings. State defendants’ claim

of prosecutorial immunity was an effective admission that

petitioner was denied the procedural process that was due.

Accordingly, Petitioner moved for summary judgment on his

procedural due process claim. FAC { 87/[SAC 489]

(visitation restrictions were imposed [and the investigation

deliberately delayed] “without notice to the plaintiff, without

a hearing, without a nght of appeal, [and] without valid legal

authority ...”). The district court denied both motions. Doc #

248 (7/29/03 Order).

Petitioner moved to file the second amended complaint to

preempt further attempts to redact and musrepresent the

issues raised by the pleadings by, inter alia, alleging with

more particularity in Claim | the violation of his nghts of

free speech and association." Petitioner also added Claim

Il, and defendants Peter Jensen and Beth Wells as co-

conspirator parties to Claim I, based on the existing evidence

of retaliation alleged in the SAC, and discovered information

that they and the other defendants had discussed among

themselves and had stated to State defendants that Petitioner

was “mentally unstable,” and “mentally ill.” These facts and

other evidence eventually produced raised the justifiable

inference that these allegations, and erroneous assumptions

and inappropriate reactions based on them were a motivating

factor for the defendants’ challenged actions. SAC, Ex.C.

18 Petitioner added “[violation of] plaintiffs right to advocate for

correction of neglect of his mother’s personal and health care and

violation of her personal rights” to SAC 4 96, and alleged that State

defendants’ custom and policy “subjected plaintiff to an unreasonable risk

that he would suffer from retaliation without remedy for reporting [the

neglect of his mother’s care].” SAC 492. See also SAC 485, and Ex.B.

But see App.26-7 (the district court failed to consider these issues).

The reassigned court granted Petitioner’s motion to

amend as to State, Sweet Home, and Kaiser defendants, but

denied it as to Jensen/Wells. Doc ## 224, 248. In their

opposition to Petitioner’s TAC that contained the same and

additional allegations of Jensen/Wells’ retaliatory and

discriminatory motive and intent as in SAC 4 90 and 104 (b)

and (c), Jensen/Wells stated “The gist of Plaintiff's

allegations against Family Defendants is their purported

communications with the other defendants regarding their

concerns as to Plaintiffs conduct which they believed to be

disruptive and detrimental to the peace and proper care of

their mother.” ER 195 (pg. 7 of Jensen/Wells’ motion). Just

as the district court had previously done before reassignment,

the reassigned court ignored and failed to consider the issue

raised by the pleadings of Jensen/Wells’ false allegations

made pursuant to improper motives and intent as corruptly

influencing the State defendants’ decision. The court decided,

in spite of Petitioner’s pleadings, that Jensen/Wells’ “merely

expressed their views to state officials in the hope that they

would agree” and that “the ultimate decision distinctly

remained with public officials.’ App.3-4 (text of pg.18 of

court order). Later discovered evidence of Jensen/Wells’

state of mind discredited the court’s presumption of

Jensen/Wells’ good faith. App.110-11 (Jensen/Wells’ 6/7/99

e-mail).

The case management conference did not occur until after

the foregoing and other motions were briefed or decided. In

the meantime, Petitioner had to deal with deficient responses

to his discovery requests first initiated by Petitioner on

3/6/03, because defendants’ version of the facts determined

what documents and information they decided were relevant,

and defendants did not fulfil the requirements of Rules

26(a)(1) or (b)(5). When the case management conference

The court used the purported “genuine concern” of Jensen/Wells

in support of its decision granting defendants’ motions for summary

judgment. App.35 and 37 (see bold text)

was finally held, on 9/30/03, the court was only concerned

with setting case management dates in spite of the

contentious nature of the case management statement. Doc #

252. The court provided no meaningful opportunity to

discuss and settle the issues, leaving them to the defendants

to unilaterally decide. Absent his requested relief from the

court, Petitioner filed a motion to compel discovery on

11/3/03 which was denied in part and granted in part by a

magistrate judge. Doc # 262 (motion), #291 (Order). *°

Kaiser defendants, like State and Sweet Home defendants

before them on the FAC, did not timely file an answer, and

when they did on 2/18/04, Doc # 294, they failed to answer

many allegations of the complaint and denied others that they

should have admitted. Kaiser defendants produced only two

documents in spite of Petitioner’s prodigious efforts at meet

and confer, did not ever produce a privilege log as required

by the case management order, and did not comply with their

initial disclosure obligations. Petitioner had to ask for the

subjects of the information of Kaiser’s witnesses by

interrogatory, and at the late date of 7/28/04 Kaiser admitted

they had “not completed discovery yet.” App.140-41 (text

of Kaiser interrogatory responses). App.144 (Text of Pt’s

Standing Order 2 letter re Kaiser. See 41). Accordingly,

Petitioner made a motion to strike Kaiser defendants’ answer

_ on 3/9/04, and a motion for discovery sanctions on 3/26/04.

Doc ## 295, 302. Kaiser defendants responded not by

motion, but by a letter on 4/12/04. App.142-43 (text of

letter). In response to Kaiser’s letter, the court “terminated”

2 State defendants were ordered to produce “findings of fact or

determinations” for their decision to approve and impose the visitation

restrictions, Order at 2, which they never did do. See note 8. Sweet Home

defendants produced over 300 documents and a privilege log it had not

previously produced before the motion to compel was filed.

4 Petitioner's first document request was submitted to Kaiser on

8/29/03. Carmona v. Toledo, 215 F.3d 124,133 (1" Cir. 2000) ([moving

party] defendants may not be permitted to “stonewall” plaintiff's

discovery 10 obtain an unfair advantage on summary judgment).

Petitioner’s motions without briefing, App.5 (4/27/04 Order),

and subsequently refused to respond to Petiiioner’s Standing

Order 2 letters asking for the court’s assistance in settling the

outstanding discovery disputes with Kaiser and State

defendants, and the Ombudsman on issues raised by the

pleadings. App.144-48, 149-53 (text of Standing Order 2

letters re Kaiser and State defendants). ER 164-65 (re

ombudsman).

The court’s conduct left the factual and legal issues, and

the documents and information defendants would provide up

to the defendants to unilaterally decide, with the result that

Petitioner was prejudiced by denial of access to material

evidence and denial of proper identification ot the material

factual and legal issues raised by the pleadings for summary

judgment purposes. “

C. Proceedings on Summary Judgment and Facts Related

to the Questions Presented

Each set of defendants made a summary judgment motion

for a total of three, and Petitioner moved for reconsideration

of his previously made motion for summary judgment for

violation of his procedural due process rights, Doc # 338, and

for reconsideration of his motions to stnke Kaiser

defendants’ answer and for discovery sanctions. Doc # 336.

The number of motions and the short time Petitioner had to

respond to them was a significant issue of oppression and

prejudice to Petitioner. ER 38 (Pt.’s declaration stating, inter

alia “I could not examine all of the arguments and evidence

presented [by moving parties] because I did not have the time

to do so” in spite of working full time preparing his papers)

2 The foregoing facts and evidence expose the court’s disingenuous

misrepresentations in its S.J.Order of supposed “insignificant motions”

which were in fact significant and related to obstruction of Petitioner's

discovery, and of Petitioner’s supposed “ample opportunity to pursue

discovery” which in fact was not ample in regard to discovery on the

issues raised by the pleadings. App.11 and 15 (see bold text).

The court decided that State defendants were entitled to

qualified immunity on the basis that Petitioner’s activities he

testified to at his deposition were purportedly a threat “of

potential abuse” to his mother, and therefore justified State

defendants’ challenged actions. App.30-31 (see bold text).

This decision was implicitly the basis of the court’s whole

judgment as to all defendants and all claims.

The court’s conclusion depended on taking Petitioner’s

deposition testimony out of its pleaded and testified to

context of his investigation, observation and reports of the

neglect of his mother’s personal and_ health care and

retaliation or discrimination against him for reporting it. As

for the pleaded context, the court stated it did not consider

Petitioner’s pleaded verified facts that established the

material factual context, because verification of the

complaint is “a process foreign to the court” and did not

satisfy Rule 56(e). App.31, 32, 34(see bold text). But see note

2 (citation to authority that verification of complaint satisfies

Rule 56(e)). The court also demonstrated that it did not

consider the pleadings for the material issues they raised, nor

the evidence in the record that supported them.

The court’s conclusion that Petitioner’s conduct was a

threat to his mother was based on the following “facts” taken

out of their material pleaded, evidenced, and testified to

context:””

(1) Petitioner’s having “changed his mother’s diapers,”

but the court failed to mention the material undisputed facts

that Petitioner “changed” his mother’s diapers because he

suspected that she was left sitting in wet diapers and found

that she was and reported the fact to Jue and Jensen/Wells

who mentioned it to Sweet Home. Section A, pgs. 3-5 supra.

2 Petitioner's reports to State defendants, if given credit, would have

resulted in citations against Sweet Home and relief for Petitioner's

mother, instead of visitation restrictions for Petitioner and his being

barred from Sweet Home for 5 months. See App.44-46 (regulations

Sweet Home violateu

App.103 (text of pgs.91-92 of Petitioner’s deposition cited by

court at App.31).

(2) Petitioner’s having “inspected his mother’s anal and

[genital] areas,” but the court failed to mention the material

undisputed fact that he testified to in his deposition that he

checked these areas when he changed his mother’s diapers

and found them grossly unclean with fecal matter, which

was one of the subjects of Petitioner’s reports of the neglect

of his mother’s personal and health care, and a risk factor for

UTI. App.100, 102 (letter to Jue). App.105 (text of

Petitioner’s deposition at 108-109 relied on but not cited by

court. The relevant pg.10 describing the fecal matter

petitioner saw in the crease between his mother’s leg and

pelvis (groin) was self-servingly left out of Ex.C by State

defendants). -See note 23. And see Goka v. Bobbit, 862 F.2d

646, 650 (7" Cir. 1988).

(3) Petitioner having checked the “volume, and odor and

appearance” of his mother’s urine, but the court failed to

mention the material undisputed facts that volume, odor and

color of urine can indicate urinary tract infection, that

petitiouer’s mother had a history of a hospital acquired

urinary tract infection justifying his concer, that petitioner’s

father’s urinary tract infection had been neglected until it had

become acute, that petitioner’s mother was being left sitting

in wet diapers, that her anal and genital areas were filthy with

fecal matter, that petitioner’s mother’s health had suddenly

and seriously deteriorated and she was receiving no medical

care for it, and that Petitioner’s mother ultimately died from a

urinary tract infection a year after Petitioner reported her

deteriorated health and her symptom of UTI of lower

abdominal tenderness and advocated for its treatment.

Section A supra at pgs.3-6. App.106 (text of pgs.102-03 of

Pt’s deposition cited by court).

(4) Petitioner’s having taken his mother “to doctor visits

that were not authorized by his siblings,” having “kept a

sample of his mother’s ‘purulent’ mucous she had coughed

up in a tissue,” and “diagnosing his mother with illness based

on a complete lack of medical training,” but the court in its

decision failed to mention and consider the material

undisputed facts that Petitioner's mother had suffered an

alarming deterioration of her health, had subsequently

coughed up purulent mucous in copious quantities after she

had coughed up a large y-shaped mucous plug which clearly

justified Petitioner’s concern for his mother’s health, that

Petitioner took the sample of his mother’s sputum to a doctor

for the purpose of his inspection of it, and who, not

petitioner, diagnosed his mother with bronchitis. Section A

supra at pgs.3-6 and 11-12. App.108-109 (text of pgs.24-25

of Pt’s deposition cited by court).

In regard to Petitioner’s claim of state action by Sweet

Home and (Jensen/Wells), the court stated as the factual basis

of its decision that the visitation restrictions were

“compelled” by State defendants and therefore there was no

“willful” participation by private defendants in imposing

them and no state action. App.17 and 19(see bold text). This

is a misrepresentation of the material issue of fact of state

action raised by the pleadings of whether the visitation

restrictions were “reasonable,” i.e. lawful. SAC 4 87. If they

were not, there is no question of willful participation by

private parties in unlawful state action, because the private

parties unlawfully influenced the state to approve visitation

restrictions instead of restoring Petitioner’s visitation rights.

The “compulsion” was to admit Petitioner to Sweet Home

because his mother wished for him to visit her, a statement

she had made to Gopaul months before and which imposed

on State defendants a duty to order Petitioner admitted to

Sweet Home without delay. See App.43 (Cal.H & S code

1569.35). And see SAC 9] 52 and 58. However, instead of

citing Sweet Home for neglect of Petitioner’s mother’s

personal and health care and retaliation against Petitioner for

reporting it, and restoring Petitioner’s visitation rights

without delay and without restrictions, Petitioner remained

unlawfully barred from Sweet Home for five months with the

necessary significant assistance of State defendants who were

mandated by law to complete an investigation in “ten days.”

The issues raised by the pleadings are that Sate defendants

granted private defendants a five month delay before

ordering Petitioner admitted to Sweet Home, and granted

private defendants the right to impose visitation restrictions

“without just cause” and for retaliatory or discriminatory

reasons.” SAC §§ 87, 90, 91(d), 93. § A supra at pgs.7-10.

D. The Decisions of the Court of Appeals

Petitioner was prejudiced on appeal by the district courts

recitation of the moving parties version of the facts in its

decision, instead of petitioners, by its many misrepresen-

tations in favor of moving parties, and by its failure to

identify and consider the factual and legal issues raised by

the pleadings. Petitioner argued that the district court had

failed. to consider virtually all of Petitioner’s evidence

supporting his claims and negating defendants’ defenses and

raised the issue of the prejudicial conduct of the proceedings.

The Court of Appeals however ratified the moving parties,

and the district court’s conduct by affirming the judgment as

to all defendants and failed to consider Petitioner’s request

for judicial notice of facts related to the prejudicial conduct

of the proceedings. App.1. Petitioner subsequently filed a

motion for rehearing and for rehearing en banc. The court of

appeals denied the motion App.38.

REASONS FOR GRANTING THE WRIT

A. The District Court Arbitrarily Foreclosed any

Opportunity for Petitioner to Make a Showing on his

Claims

Summary of Argument: The district court and the moving

parties engaged in arbitrary and self-serving manipulation of

the issues raised for review, the evidence presented in

support of them, and the law and rules governing the standard

4 West v. Atkins, 487 US 42, 49 (1988).

of review and the burdens of the parties on summary

judgment. This case provides evidence that such arbitrary

conduct constitutes a tacitly accepted pattern and practice in

the 9"" Circuit courts and among the 9" Circuit Bar for which

there is no realistic avenue for relief or correction except by

Writ of Certiorari. This court should make it clear that such

conduct is not an acceptable practice.

Summary Judgment Standard of Review: The court must

first examine the pleadings to determine what issues of fact

they present before considering any outside matter to

determine whether any of the issues raised by the pleadings

are genuine material issues of fact. Wright, Miller, Kane,

Federal Practice and Procedure, 3d § 2721. Adikes v. Kress,

398 US 144, 156 (1969). “[T]he availability of summary

judgment turn{s] on whether a proper jury question [is]

presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986) (citing Adikes). To meet its initial burden the

moving party must foreclose all material facts and justifiable

inferences raised by the non-moving parties’ materials.

Adikes supra at 158-161, Nissan Fire & Marine Ins. Co. v.

Fritz Companies, 210 F.3d 1099, 1105 (9" Cir. 2000). Clark

v. Coats & Clark, Inc., 929 F.2d 604, 607 (11" Cir. 1991).

The non-moving party’s ‘“‘version of any disputed issue of

fact is presumed correct. Therefore we begin with the factual

basis of [the non-moving party’s] claims.” Kodak v. Image

Technical Services, 504 US 451, 456 (1992) (emp. added).

i}. Petitioner’s Pleadings and Detailed Pleaded Facts and

Evidence Raise Genuine Issues of Material Fact that Moving

Parties and the Court Failed to Mention and Dispute.

e Did Sweet Home neglect Petitioner’s mother’s

personal and health care and threaten and endanger her

health? See section A, pgs.1-12.

e Did Jensen/Wells, Kaiser, and State defendants fail to

properly determine that Petitioner's mother’s personal and

health care were neglected, and fail to properly construe

Petitioner’s conduct of investigating, observing and reporting

the neglect of his mother as warranted and reasonable

conduct under the circumstances? Id.

e Did Jensen/Wells’, Kaiser’s, and Sweet Home’s

conduct and words indicate their retaliatory or discriminatory

motive and intent, and indicate that assertions that

Petitioner’s “conduct” justified their challenged actions were

pretexts for their retaliation or discrimination in response to

Petitioner’s reports of the neglect of his mother’s personal

and health care and advocacy for its correction? Id.

e Did State defendants fail to properly determine that

Petitioner's mother’s personal and health care were

neglected, and that Petitioner’s “conduct” was warranted and

reasonable under the circumstances, by recklessly agreeing

with private defendants’ discriminatory or retaliatory

allegations against Petitioner, by acting according to a

discriminatory custom and policy that subjected Petitioner’s

mother to the unreasonable risk that she would suffer neglect

of her personal and health care, and subjected Petitioner to an

unreasonable risk that he would suffer from retaliation

without remedy for reporting it, and by substituting their own

judgment for the judgment of the private defendants? Id.

And see note 18.

2. The District Court Arbitrarily Based its Determination

of the Disputable Issues of Fact on Moving Parties’ Version

of the Facts Instead of on the Issues Raised by the Pleadings.

The district court admitted that it failed to consider

Petitioner’s pleaded verified facts for the reason that it did

not qualify as an affidavit under Rule 56(e). Pg. 19 supra.

However, the court not only did not consider them as an

affidavit, it also failed to consider them and all the evidence

supporting them as pleaded facts. See section A, pgs.1-12

supra. Adikes, Anderson supra (the moving parties and the

court must foreclose material facts and inferences raised by

the pleadings and other summary judgment materials).

Nowhere in its decision does the court consider Petitioner’s

detailed pleaded facts and evidence of Jensen/Wells’, Sweet

Home’s, and Kaiser’s adverse actions and statements against

Petitioner that occured in close proximity of time to his

reports of the neglect of his mother’s personal and health care

as evidence of their retaliatory or discriminatory motive and

intent. And nowhere does the court consider Petitioner’s

detailed pleaded facts and evidence of the neglect of his

mother’s personal and health care as evidence that the

assertion that Petitioner’s “conduct” of investigating,

observing and reporting it justified their challenged actions

was a pretext for their retaliation or discrimination. Instead it

is clear the court ignored and failed to consider these dis-

positive issues and the evidence supporting them altogether.”

Instead of first considering whether moving parties had

met their initial burdens of showing a lack of a dispute of a

genuine issue of material fact based on the material issues

raised by the pleadings, the court improperly proceeded to

grant defendants’ motions based on _ the perceived

deficiencies in Petitioner’s responses to the issues raised by

the moving parties’ version of the facts. See App.30-31(S.

D.’s alleged threat from Petitioner), App.23 (Kaiser’s alleged

medical reasons), App.17, 19(S. H.’s alleged compulsion)

*> In regard to State and Sweet Home defendants and Jensen/Wells, see

e.g. note | and related text; App.31 (the court misrepresents petitioner's

concern for the neglect of his mother by stating that Petitioner’s “only

desire” was to visit his mother); note 3 and related text (all of the adverse

actions and statements against petitioner occurred in close proximity of

time to Pt’s reports); notes 3, 5, 9, 10 and related text (multiple

discriminatory or retaliatory statements were made); note 23 and related

text (Petitioner’s reports clearly not given credit by State defendants).

In regard to Kaiser defendants, see e.g. App.24 (The court states the

issue it considered as Kaiser’s “failure to give credence to Jensen’s belief

that his mother had a UTI,” but failed to consider Petitioner’s pleaded

facts and evidence of his reports to Kaiser of his mother’s deteriorated

health, symptoms of UTI, symptoms of illness in the elderly, diagnosis of

bronchitis, Sweet Home’s neglect of his mother’s personal care, Kaiser

employee Mostrales’ discriminatory statements, Kaiser’s unreasonable

responses to his reports, and Kaiser’s failure to take reasonable remedial

action as evidence that Kaiser failed to give credit to Petitioner’s reports

for discriminatory reasons. Section A supra at pgs. 4-7.

3. The District Court’s Arbitrary Failure to Consider the

Issue of the Neglect of Petitioner’s Mother Foreclosed any

Opportunity to Make a Showing on any Claim

Petitioner could not possibly meet any burden of

persuasion because the court arbitrarily gave moving parties

the benefit of treatment of their version of the facts as

correct, and arbitrarily failed to consider the material issues

raised by the pleadings and the evidence supporting them. A

summary judgment is not a procedural gambit whereby a

court can shift the burden of proof by selective consideration

of the issues and evidence. Properly considered, the

dispositive factual issue of the case that 1s determinative of

all the other issues for both Petitioner’s claims and moving

parties’ defenses is Petitioner’s pleadings and detailed

pleaded facts and documentary evidence of moving parties’

neglect of his mother’s personal and health care. Section A

pgs.3-7, 11-12 supra. The district court wholly ignored this

material issue. There could hardly be retaliation. or

discrimination against Petitioner without a motive which 1s

the substance of the court’s opinion, and which it can only

obtain by ignoring and failing to consider the pleaded facts of

Petitioner’s reports of moving parties’ neglect of his mother’s

persona! and health care and the pleaded facts and evidence

of their retaliation and discrimination against him for

reporting it. Id. See c.f. Perry v. Sinderman, 408 US 593,

598 (1972) (claim was foreclosed by the district courts failure

to consider it).

4. The District Court’s Arbitrary Judgment on

Jensen/Wells’ Motive and Intent Foreclosed any Opportunity

to Make a Showing on Claims Against Jensen/Wells

The district court’s judgment of Jensen/Wells’ retaliatory

or discriminatory motive and intent on a motion to amend,

and its dismissal of them as defendants on that basis, was

arbitrary and done in the absence of all discretion. See

pgs.15-16 supra. It is not the court’s permitted role to decide

facts on a summary judgment motion, much less before one

is filed. Moreover, the court does not have ‘any discretion in

granting a summary judgment motion to make an evidentiary

ruling excluding statements made that evidence improper

motive, intent and plan that 1s a specific hearsay exception on

the arbitrary basis that it is hearsay! F.R.Evid. 803(3).

App.18, 36 (see bold text). Moreover, treated properly in the

light favorable to Petitioner, the “behavior” Jensen/Wells and

Sweet Home were “concerned” about were the “troubles”

Petitioner’s reports of Sweet Home’s neglect of his mother’s

personal and health care and advocacy for its correction

caused them. App.110, 124. And sce note 3, 6, 17, and 25.

5. The District Court’s Arbitrary Adoption of Moving

Parties’ Misrepresentations of the Issues Raised by the

Pleadings Foreclosed any Opportunity to Make a Showing on

Petitioner’s 1“ Amendment Claims

Sweet Home repeatedly throughout the proceedings

misrepresented Petitioner’s 1° Amendment claim by citing

Hudgens v. NLRB, 424 US 507 (1975), but necessarily

without explaining how or why that citation was relevant tc

the facts of this case because it isn’t. See note 16 and related

text. The court arbitrarily adopted Sweet Home’s

misrepresentation of the facts and legal issues, cited Hudgens

in denying petitioner’s 1" Amendment claim, App.28-29,

and failed to consider the 1*' Amendment issues raised by the

pleadings of State and private defendants’ violation of

Petitioner’s rights of free speech and association for the

purpose of reporting the neglect of his mother and advocating

for its correction. See notes 16 and 18 and related text.“

Elder abuse is a matter of public concern, and access to

remedial state procedures, and petitioner’s advocacy and

visitation restrictions Arrington stated that Petitioner’s advocacy for

correction of the neglect of his mother’ personal and health care had

“caused turmoil at Kaiser”). And see App.30 (the court treated

Petitioner’s necessary advocacy for his mother as “diagnosing his mother

with illness based on a complete lack of medical training”).

association with his mother for its correction is protected

from interference by the state by the 1 Amendment. See e.g.

Hufford v. McEananey, 249 F.3d 1142, 1148 (9" Cir. 2001)

(legitimate whistleblowing protected speech). White v. Lee,

227 F.3d 1214 (9" Cir. 2000)(association, advocacy, and

petition activities against private entity protected even for

advocacy of unlawful acts). And see Perry v. Sinderman

supra (the district court foreclosed any opportunity to make a

showing on Pt’s free speech claim by not considering it).

B. Proper Consideration of the Dispositive Factual Issue

Raised by the Pleadings Shows that the Judgment in this

Case is a Manifest Injustice

All of Petitioner’s documentary evidence supports his

verified allegations of the neglect of his mother’s personal

and health care, and all of it is either admissions of opposing

parties or is not disputed.

State and Sweet Home defendants have nothing but

conclusory denials of that neglect by persons who lack

personal knowledge of what Petitioner witnessed at Sweet

Home. See notes 6 and 17. Treated in the light favorable to

Petitioner, the best that can be said for Kaiser is that they

disputed that Petitioner’s mother had a UTI when Petitioner

reported her symptoms. But the court considered only the

UTI issue, not any pleaded factual issues nor any evidence

supporting the issues of the neglect of his mother’s care

Petitioner reported to Kaiser, and Kaiser’s unreasonable

_ responses to it that are material to Kaiser’s liability. See note

; ~ Ne

Moreover, the fact that Petitioner's mother died of

~~ See also e.g. bold text at App.25-6(the court attributes to

Petitioner an argument and evidence offered by Kaiser defendants, Doc #

323 at 6). The court concludes that Kaiser’s self-serving submission

against petitioner “illustrates the character of the ‘evidence’ Jensen has

offered” while arbitrarily failing to consider Petitioner's submitted

evidence or even considering what Kaiser may have self-servingly failed

to mention.

complications of her UTI a year after Petitioner reported her

symptoms is evidence supporting Petitioner’s pleaded

allegations of neglect of his mother’s health care. It was

clearly neglectful of State and Sweet Home defendants to not

recognize Petitioner’s mother’s need for medical care even

when it became clearly obvious, and it 1s hardly indicative of

Jensen/Wells’ purported concern for Petitioner’s mother.

App.137. App.45 (Cal.C.Regs, Tit.22, § 87591). Furthermore,

the court ignored and failed to consider the evidence that

indicated that Kaiser’s defense of its medical reasons for

failing to credit Petitioner’s reports of his mother’s symptoms

of UTI was a pretext for its discrimination against

petitioner.”*

C. The District Court Has a Record and History of

Failing to Consider Evidence and Drawing Conclusions

Unsupported by the Evidence

In reviewing the decision of the same district court in

Headwaters Forest Defense v. County of Humboldt, the court

of appeals stated that the district court, in its judgment as a

matter of law, “fails to mention [evidence favorable to the

plaintiffs], let alone view it in the light favorable to the

plaintiffs as the nonmoving parties.” Headwaters at 1201.

The court of appeals also pointed out that the district court’s

“characterization of the evidence” asserted conclusions that

were unsupported by the evidence. Headwaters at 1201 and

1202-03. Headwaters Forest Defense Fund v. County of

Humboldt, 240 F.3d 1185, 1197 (9" Cir. 2001), vacated and

remanded on other grounds, Humboldt County v. Headwaters

Forest Def., 534 U.S. 801 (2001).

"8 See e.g. App.23 (the court considered Jue’s declaration that

Petitioner’s mother had no clinical symptoms of UTI “such as fever” or

“burning pain with urination” to be dispositive). But failed to consider

ER 48 (pg.1 of Pt’s mother’s Hospital “Transfer Summary” stating that

she had no fever and no burning pain with urination was reported when

she was admitted to the hospital with an acute UTI).

Exactly the same thing happened in Petitioner’s case, and

the fact that it did indicates that it has happened in other

cases, and will continue to happen and prejudice other

litigants until corrective action is taken.

D. The Court of Appeals Improperly Ratified an

Arbitrary Judgment Pursuant to Pattern of Arbitrary

Conduct by the District Court

The decision of the district court was replete with the

type of arbitrary conduct the court of appeals had previously

complained of in Headwaters, and the record showed moving

parties complicity in them. The court of appeals, however,

merely followed the judgment of the district court indicating

it did not undertake the review required.

The court of appeals abdicated its ethical and supervisory

duties to take notice of and correct the defendant parties’ and

the district court’s interference with the proper conduct of the

proceedings and corruption of the court’s process, indicating

that this type of improper conduct will contimue to prejudice

non-moving parties on summary judgement in the Ninth

Circuit.

CONCLUSION

The Arbitrary conduct and abuse of the Federal Court’s

process described above discredits the Federal Bar and the

Federal Court, and caused a manifest injustice to occur. This

Court should grant certiorari in this case to make it clear that

such conduct is not acceptable practice in the federal court

system, and to decide that moving parties did not meet their

initial burden On summary judgment in the district court .

Respectfully submitted by, Tom Jensen,

Petitioner in propria persona

P.O. Box 614

Oakland, CA 94604

(510) 918-6667

App. i

INDEX TO APPENDIX MATERIAL

page

Opinions and Orders:

Opinion of the U.S. Court of Appeals for the Ninth

Circuit Affirming the Order Granting Summary

FuGgment (May 1S, ZOOS) ..ccvescsvvcesscscesccsvetes App. |

Order of the U.S. District Court for the Northern

District of California, pg. [ ], Denying Leave

to Amend as to Jensen/Wells

GaRNG FUE Be. SOME v ncknasiessstssneteectencianeee App.3

Order of the U.S. District Court for the Northern

District “Terminating” Motion to Strike

Answer and for Discovery Sanctions

GRP FRDTEE BF y EE bicicssenackinamieddatentdintalce: App.5

Order of the U.S. District Court for the Northern

District of California Granting Summary

Judgment (filed January 31, 1005) .................... App.7

Order of the U.S. Court of Appeals Denying Motion

for Rehearing and for Rehearing En Banc,

UNG FUE Bag MOOS cudilivensttrscdusaroteineecuaacaa App. 38

Federal Constitutional Provisions:

U.S. Constitution Amendment | ....................202+- App.39

U.S. Constitution Amendment 14, § 1 .................. App.39

Federal Statutory Provisions:

GE Us © PGES octsiskssintcsentied eee App.39

BE Wan © BRU 00s cccncasnsnesnednnscescdumesretenin App.40

State Law Provisions

ree CN GEE 6 OG ccencccscctncantennvcascsenss App.40

California Government Code § 12926 ................... App.4l

App. 11

page

CaOTD CIV CORES «6.05. cccccccviccevccconsserecss App.41

ee kt bs Ss ee ee App.42

California Health and Safety Code § 1569.35 .......... App.42

California Probate Code § 4720 ................ccceeeeee: App.43

State Regulatory Provisions

California Code of Regulations, Title 22, § 87572 .... App. 44

California Code of Regulations, Title 22, § 87591 ..... App.44

California Code of Regulations, Title 22, § 87702 .... App.45

California Code of Regulations, Title 22, § 87708 .... App.45

California Code of Regulations, Title 22, § 87702.1 .. App.46

Other Relevant Materials: Sample of Material Evidence

the District Court and Court of Appeals Failed to

Consider

Second Amended Complaint (4/4 11-73 verified) ...... App.47

Text of Petitioner's Declaration. ER (Excerpts of

EO se RII hock ssevensscensnicesenensazaiecnen App.94

Text of Petitioner’s Declaration §§| 4-8. Doc # 360 .. App.96

Text of Petitioner’s verified handwritten 5/26/99 letter

addressed to Jue alleged in SAC 4 31.

Se SUPE hinds weeebucsdievencssdeimeredivienncesovas App.99

Text of Kaiser Self-Care Tips for Urinary Tract Infections,

From Kaiser’s Healthwise Handbook, attached to

Petitioner’s 5/26/99 letter to Jue. ER 34.......... App.101

Text of Pages 91-92 of Petitioner’s 4/5/04 Deposition

Testimony. Doc # 335, Ex.C (Declaration and

Exhibits of Susan J. King, attorney for State

SINE osc Jacusd chosueusaedcoecsscccusraswensiouw App.103

App. i

page

Text of Pages 108-09 of Petitioner’s 4/5/04 Deposition

Testimony. Doc # 335, Ex.C (Declaration and

Exhibits of Susan J. King, attorney for State

I fro iedinhigassscwasen bel snersimcceccsanesy App.105

Text of Pages 102-03 of Petitioner’s 4/5/04 Deposition

Testimony. Doc # 335, Ex.C (Declaration and

Exhibits of Susan J. King, attorney for State

es iat Ants bandescc cin ceeeceseacesatas App. 107

Text of 6/7/99 e-mail from Peter Jensen to David

I Be FREE sbvcicseeccivatasstcncdarinesiscason App.110

Text of Petitioner’s verified handwritten 6/24/99 letter

to Jue alleged in SAC 432. ER 67-68 ............ App.112

Text of Petitioner’s verified handwritten June 1999

Audio tape transcript. Doc # 345 (Petitioner’s

Exhibits), Ex.A, pgs. 145-146. Doc # 335, Ex.K

(Declaration and Exhibits of Susan J. King,

attorney for State defendants), pgs.23-24 ......... App.114

Text of letter faxed to Petitioner by Derek Jue MD

re CRU PINE fa neice caste capnantestensdacutss: App.117

Text of Petitioner’s verified handwritten audio tape

transcript. Doc # 335, Ex.K (Declaration and

Exhibits of Susan J. King, attorney for State

defendants), pgs.17-20. ER 15-18 ................. App.t18

Text of Petitioner’s third (9/3/99) verified handwritten

letter to Jue alleged in SAC 4 30. ER 94-98 ..... App.120

Text of Mostrales’ 9/8/99 diary entry.

De UN ofa ceracnrnersdesnsecadaucesankastcenenas’ App.124

Text of Me«‘rales’ 10/13/99 diary entry.

Ss sictlcaas Fah ctei arden tal eebadlaceidhehantetaaies App.125

Text of Gopaul’s 11/5/99 Detail Supportive

I, TU og a ewes yanyancecczecpecessanin App.126

App. Iv

page

Text of Arrington’s letter faxed to Petitioner by

Senator Figueroa on 03/06/2000. ER !25 ......... App.128

Text of 3/1/00 e-mail of Jensen/Wells. ER 132 ....... App.129

Text of 3/5/00 communication from Jensen/Wells to

ID, HEE TUNE dc coteipoducnnctabenetduneedennnenie App.130

Text of 3/20/00 letter from DSS attorney Janet

McKenzie to Jensen/Wells. ER 149 ............... App.131

Text of pg. 3 of 4/22/00 Kaiser Hospital Transfer

NS IDE OPE cs cdedsocssndtondecsrscbaceqnecduann App.133

Text of Exhibit D at 4 of Declaration of Mark Palley,

attorney for Kaiser defendants. ER 51 ............ App. 135

Text of 3/6/00 Sweet Home letter. ER 51 .............. App.136

Text of pgs. 8-10 of transcript of 5/17/02 Case

Management Conference. ER 4 ................... App.138

Text of pgs.2-3 of Kaiser’s July 28, 2004

interrogatory responses. Doc # 345,

Sa Se a ee a eae App.140

Text of Kaiser defendants’ 4/12/04 letter.

a App.142

Text of Petitioner’s Standing Order 2 letter, filed

8/2/04, asking for relief from discovery dispute

with Kaiser defendants, ER 64-65 ..................

App.144

Text of Petitioner’s Standing Order 2 letter, filed

8/2/04, asking for relief from discovery dispute

with State defendants. ER 175-76 .................. App.149

App. |

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 05-15346

D.C. No. CV-00-03261-VRW

(Filed May 18, 2006)

Tom Jensen,

Plaintiff-Appellant,

Sweet Home One Care Facility,

A business entity, et al.,

Defendants — Appellees

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, District Judge, Presiding

Submitted May 15, 2006

MEMORANDUM

Before: B.Fletcher, Trott, and Callahan, Circuit Judges.

Tom Jensen appeals pro se from the district court’s

summary judgment for defendants, on remand from this

court, in his action alleging various civil rights causes of

action against his siblings and other individuals who were

involved in the care of his late mother while she lived at a

residential care facility for the elderly. We have jurisdiction

under 28 U.S.C. § 1291. After de novo review, Lopez v.

Smith, 203 F.3d 1122, 1131 (9"" Cir. 2000) (en banc), we

affirm.

The district court properly granted summary judgment on

Jensen’s 42 U.S.C. § 1983 claims against Sweet Home

defendants because he did not raise a triable issue of fact as

to whether those defendants were willful participants with the

state or its agents in an activity that deprived him of his

App. 2

constitutional rights. See Brunette v. Humane Soc'y, 294

F.3d 1205, 1211 (9" Cir. 2002). Jensen also could not raise a

triable issue of fact as to whether the state defendants

violated his constitutional rights by investigating his

complaints and compelling Sweet Home to restore his

visitation rights wit restrictions.

The district court properly granted summary judgment on

Jensen’s discrimination claims under the American’s with

disabilities Act and the Rehabilitation Act because he failed

to raise a triable issue of fact as to whether his alleged

exclusion from participation in any program was solely on

account of a perceived disability. See Weinreich v. Los

angeles county MTA, 114 F.3d 976, 978-79 (9 Cir. 1997).

The district court properly granted summary judgment on

Jensen’s claims under California’s Unruh Act because

actions a business enterprise takes in response to

inappropriate conduct do not constitute arbitrary

discrimination. See Cal. Civil Code § 51; Marina Point, Ltd

v. Wolfson, 640 P.2d 115, 124-27 (Cal. 1982).

The District court did not abuse its discretion in denying

Jensen’s motion for additional discovery pursuant to Fed. R.

Civ. P. 56(f) because Jensen failed to show how additional

discovery would uncover specific facts that would preclude

summary judgment. See California ex rel. California Dep't

of Toxic Substances control v. Campbell, 138 F.3d 772, 779

(9"" Cir. 1998).

Jensen’s remaining contentions lack merit.

We deny all pending motions

AFFIRMED

App. 3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 00-3261 VRW

(Filed July 29, 2003)

TOM JENSEN,

Plaintiff

SWEET HOME ONE CARE FACILITY, et al,

Defendants

ORDER

Ae Ee ke ok ok

* page 18 *

agents effecting a constitutional deprivation. Johnson

v Knowles, 113 F3d 1114, 1119 (9" Cir 19977

5/14/03 Order (Doc #224), at 8-9.

Jensen fails to cure the deficiency of his earlier proposed

pleading. Jensen has added allegations and _ exhibits

indicating that Peter Jensen and Beth Wells, at times acting

through their agent Don Wells, suggested certain visitation

restrictions to state officials. Prop TAC, {| 75(a), 87, Exh D

at 1-2. But even the attached exhibits, if taken as true,

acknowledge that plaintiffs siblings merely expressed

their views to state officials in the hope they would agree

(emphasis added for purposes of citation to this text at pg.16

of writ). To the extent the ultimate decision distinctly

remained with public officials, Jensen’s siblings were

therefore not the cause of plaintiff's purported constitutional

deprivation. See Prop TAC, Exh D at 2 (“Don and | have

reworked the restrictions so that we think they will be

approved by CCL. Of course, they must satisfy your

concems.”); id., Exh D at 3 (letter by staff attomey from

App. 4

California Department of Social Services rejecting proposed

restrictions by Peter Jensen).

Plaintiff has failed to state factual allegations to support a

claim that his siblings were willful participants in the

particular state action effecting a constitutional deprivation.

While plaintiffs family members may have expressed

their views and preferences to state officials, the proposed

TAC fails to allege that Peter Jensen and Beth Wells were

“joint” participants in the decision to impose the

visitation restrictions at issue (emphasis added for purposes

of citation to this text at pg.16 of writ). Accordingly, leave to

amend Plaintiff's section 1983 claim to add his siblings is

DENIED.

KK RR KK

IT IS SO ORDERED.

Vaughn R. Walker

U.S. District Judge

App. 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 00-3261 VRW

(Filed Ap.27, 2004)

TOM JENSEN,

Plaintiff

SWEET HOME ONE CARE FACILITY, et al,

Defendants

ORDER

Plainuff recently filed two motions. Plaintiff first moves

the court to strike Kaiser defendants’ answer to plaintiff's

second amended complaint. Pt Mot (Doc # 296).

Plaintiff also moves the court for various discovery-

related relief, including sanctions. P] Mot (doc # 302).

The parties are scheduled for a dispositive motions

hearing date of October 28, 2004. The fact discovery

deadline is September 30, 2004.

The court’s standing orders require a party to obtain leave

of court before filing a motion to compel discovery

responses. See standing Orders at § 2. To streamline this

litigation, the court deems it appropriate to extend this

requirement to all motions. Accordingly, unless the parties

are granted leave by the court for good cause shown, no

motions will be heard prior to the October 28, 2004,

dispositive motions hearing date. Leave may be requested

by:

1. Requesting a telephone conference with all parties or

2. Sending a letter to the court, not exceeding two pages,

with copies served on all parties.

As noted above, plaintiff has two pending motions. The

court TERMINATES plaintiffs motion to strike and for

various discovery-related relief and VACATES | their

App. 6

respective hearing dates. If plaintiff seeks to strike the

Kaiser defendant answer, he may include such an argument

in any dispositive motion to be heard on October 28, 2004. If

plaintiff seeks to bring a discovery related issue to the court’s

attention, he may file a letter, not exceeding two pages,

alerting the court to the nature of the dispute.

IT IS SO ORDERED.

Vaughn R. Walker

U.S. District Judge

App. 7

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 06-3261 VRW

(Filed Jan. 31, 2005)

TOM JENSEN,

Plaintiff

SWEET HOME ONE CARE FACILITY, et al,

Defendants

ORDER

After four years of contentious litigation, an intermediate

appeal to the Ninth Circuit and a literal mountain of filed

documents (occupying eleven large file folders), this case has

finally reached its final summary judgment phase. As the

litigation currently stands, plaintiff Tom Jensen (Jensen)

alleges several federal and state law causes of action against

an inordinate number of defendants. Doc # 311. Currently

before the court are all defendants’ separate motions for

summary judgment. Docs ## 322, 339, 332. Also before the

court are Jensen’s two motions for reconsideration of the

court’s orders denying his

* page 2 *

motion for summary judgment and his motion to strike as

well as Jensen’s FCRP 56(f) application. Docs ## 336, 338,

358. Based upon the extensive memoranda filed by all

parties, the court reasoned that oral argument was

unnecessary and accordingly vacated the hearing that was

scheduled for November 4, 2004. Doc # 354. After

reviewing the parties’ memoranda and the applicable law, the

court DENIES Jensen’s motions for reconsideration,

DENIES Jensen’s 56(f) application and GRANTS. all

defendants’ motions for summary judgment.

App. 8

The facts of this case were recited accurately _, and

amply, in the court’s May 14, 2003 order. Doc # 248.

Accordingly, the following factual summary is taken mostly

from that order.

Jensen commenced this action on September 11, 2000,

alleging various civil rights causes of action against his

siblings, Beth Wells and Peter Jensen, and other individuals

who had been involved in the care of his deceased mother. Id

at 2. Prior to her death, Jensen’s mother had been a resident

at Sweet Home One Care Facility for the elderly in Fremont,

California. Id.

Jensen became concerned about his mother’s treatment at

Sweet Home beginning in early 1997. Id. During 1999,

Jensen frequently visited his mother at Sweet Home

beginning in early 1997. Id. During 1999, Jensen frequently

visited his mother at Sweet Home, where he allegedly

witnessed mistreatment of her by Sweet Home staff. Kd.

Although Jensen relayed his concerns to his mother’s

primary care physician and health care provider, Dr, Bill Jue

(Dr. Jue) and Kaiser Permanente (Kaiser) respectively,

neither, according to Jensen,

* nage 3 *

investigated or acted on his concerns. Id. Similarly, when

Jensen expressed his concerns to his siblings, Beth Wells and

Peter Jensen, both of whom held durabie power of attorney

over their mother’s health care, neither sibling chose to

pursue Jensen’s complaints. Id. Instead, Peter Jensen stated

that Jensen’s actions were “disruptive” to Sweet Home. Id.

Based on his belief that his mother was not receiving

adequate medical care at Sweet Home and without his

siblings’ permission, Jensen began taking his mother to see

other doctors, both inside and outside the Kaiser system.

Doc # 311, 4} 27, 40. In order to transport his mother to

these different doctors, Jensen would place his mother in his

App. 9

motor home, without a seatbelt, and drive her to the doctor’s

office. Doc # 330, Ex 2 at 116 (Jensen deposition). On

October 13, 1999, when Jensen was attempting to take his

mother on one of these appointments, Minerva Mostrales

(Mostrales), and employee of Sweet Home, attempted

physically to prevent Jensen from leaving the Sweet Home

premises with his mother. Doc #311, 4 40. Also, Jensen

began changing his mother’s adult “diapers,” and inspecting

her vaginal and anal areas for “uncleanness.” Doc # 330, Ex

2 at 109. During a visit to Sweet Home, Jensen entered

another resident’s room and began questioning her regarding

whether she was “getting [her] oxygen.” Id. at‘l120. To

pacify his concerns, Jensen began inspecting the woman’s

oxygen machine and its tubing. Id. Finally, Jensen began

tape recording his conversation with his mother and

attempted to record conversations he had with Sweet Home

employees. Id. at 88-89, 125-25.

Viewing Jensen’s behavior as strange and potentially

* page 4 *

dangerous, Peter Jensen (under the auspices of his power of

attorney, and with the express approval of his sister Beth

Wells) forbade Sweet Home from allowing Jensen to visit

their mother and threatened to “involve the police and take

formal legal action” if Jensen persisted in his course of

action. Doc # 248 at 3. Sweet Home complied with Peter

Jensen’s orders.

In October 1999, Jensen filed a complaint with

Ombudsman, Inc of Alameda County, an agency created by

the California Department of Social Services (DSS) to

receive and investigate complaints of neglect or abuse of

residents at licensed residential care facilities. Id. Not

satisfied with Ombudsman’s actions, Jensen filed a 150-page

complaint with the Oakland office of the Community Care

Licensing Division (Licensing division) of the DSS. Id.

On April 3, 2000, Sweet Home, pursuant to the Licensing

Division’s order, issued visitation restrictions for Jensen. Id.

App. 10

This plan limited Jensen to one-hour-long visits twice a week

with his mother. Id. In addition, these visits could only

occur In a “common area” of the Sweet Home facility. Id.

* page 5 *

Jensen promptly decided to appeal the Licensing

Division’s conclusion, but his repeated requests for

information concerning the appeals process were ignored by

the Licensing Division. Id at 4. Jensen then commenced the

instant action against his siblings, Sweet Home and several of

its agents or business partners (Sweet Home defendants) and

the Licensing Division and the investigators who handled

Jensen’s complaint (state defendants).

In his first amended complaint, Doc # 3, Jensen alleged

four claims against defendants: (1) a § 1983 claim against

the state defendants and Sweet Home defendants, for

violation of Jensen’s First, Fifth and Fourteenth Amendment

rights; (2) a claim under 24 USC § 1985(3) against his

siblings, state defendants, Sweet Home defendants and

Kaiser defendants for conspiracy to deny Jensen’s rights to

equal protection of the law; (3) a § 1983 claim against the

state defendants for equal protection violations due to its lack

of appeal procedures and (4) violations of the Americans

with Disabilities Act (ADA), the Rehabilitation ACT of

1972 (RA) and the Age Discrimination Act of 1975 against

state defendants. Jensen also sought injunctive relief on

behalf of his mother.

In a written order dated January 31, 2001, the court, per

Judge Susan Illston, dismissed all of Jensen’s claims with

prejudice and entered judgment in favor of defendants. See

Doc # 73. The court subsequently denied Jensen’s motions

to alter or amend judgment, Doc # 88, and _ for

reconsideration, Doc 91. Jensen appealed all of these

decisions to the United States Court of Appeals for the Ninth

Circuit, which consolidated the appellate

* page 6 *

proceedings and, on July 1, 2002, issued a decision affirming

App. 11

n part and reversing in part. See Doc # 136. The Ninth

Circuit affirmed the district court’s decision to dismiss all of

Jensen’s claims with prejudice with the sole exception of his

First and Fourteenth Amendment claims against state

defendants and Sweet Home defendants. Id. at 2 (“Because

[Jensen] had sufficiently alleged that the private defendants

were state actors they could not unreasonably restrict his

First and Fourteenth Amendment rights.”’).

On remand, Jensen moved for leave to amend his

complaint, for sanctions against defense counsel and for

relief from judgment, all of which were denied. See Docs #

139, 143, 153, 173. Peter Jensen and Beth Wells, who had

not been named as defendants on the sole surviving claim,

sought and received an order dismissing them from the action

entirely. Doc # 141. All of Jensen’s attempts to pull his

siblings back into this suit have been denied.

Jensen then moved to recuse Judge IIIston from presiding

further over this action. See Doc # 175. On February 5,

2003, Judge Illston recused herself, and the action wa

reassigned to the undersigned. See Docs ## 182, 185.

In orders dated May 14, 2003, and July 31,2003, the court

granted Jensen’s motion to amend his complaint to include:

(1) an ADA and RA claim against state defendants; (22) a

civil rights claim under the Unruh Civil Rights Act, Cal Civ

Code § 51 et seq (Unruh Act) against Sweet Home

defendants; and (3) the same Unruh Act claim against Kaiser

defendants. Docs ## 224, 248.

Jensen moved for summary judgment in his favor, which

the court denied. Doc # 248. Disregarding some

insignificant motions brought and adjudicated in the

interim (emphasis added for purposes of citation to this text

at pg.18, n.22 of writ), the current state of this

* page 7 *

litigation 1s as follows: (1) As to Sweet Home defendants,

Jensen asserts a § 1983 claim, alleging violations of First and

Fourteenth Amendment rights, and a claim for violation of

App. 12

the Unruh Act; (2) as to the state defendants, Jensen asserts

the same § 1983 claim asserted against Sweet Home

defendants, as well as a claims (sic) of discrimination

pursuant to the ADA and RA; and (3) as to Kaiser

defendants, Jensen asserts a claim for violation of the Unruh

Act. Doc # 311 (Second Amended Complaint) (SAC). It

should be noted that the SAC also includes causes of action

which have been disallowed by either this court or the Ninth

Circuit (e g, equal protections claim, procedural due process

claim and claims against Peter Jensen and Beth Wells). As

these claims have already been properly dismissed, the court

will not consider or discuss Jensen’s references to these

barred causes of action.

All defendants have moved for summary judgment on all

claims against them, Docs ## 322 329, 332, while Jensen has

moved the court to reconsider its orders denying his motion

for summary judgment and denying his motion to strike

Kaiser defendants’ answer to the SAC, Docs ## 338, 339.

Jensen has also filed an application pursuant to FRCP 56(f)

claiming that he cannot oppose defendants’ summary

judgment motions; he need more discovery in the form of

depositions to raise a genuine issue of material fact. Doc. #

358 at 11-12.

To these disputes the court now turns.

The court will first, and quickly, address Jensen’s

motions for reconsideration, for these motions are

procedurally

* page 8 *

flawed. Under the local rules, Jensen is required to seek

leave to file a motion of reconsideration before he files such a

motion for reconsideration (emphasis in original). Civ L R 7-

9(a). At no time did Jensen seek leave to file the current two

motions for reconsideration. Moreover, Jensen’s pro se

status does not excuse him from compliance with the court’s

App. 13

local rules. See King v Atiyeh, 814 F2d 565, 567 (9"" Cir

1987). Lack of awareness of the applicable rules and

procedure is no excuse for failure to comply with those rules.

See Swimmer v IRS, 811 F2d 1343, 1344 (9" Cir 1987).

Accordingly, Jensen’s motions for reconsideration are

DENIED.

Ill

In reviewing a summary judgment motion, the court must

determine whether genuine issues of material fact exist,

resolving any doubt in favor of the party opposing the

motion. “[S]ummary judgment will not lie if the dispute of

material fact is ‘genuine,’ that is, if the evidence is such that

a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, 477 US 242, 248 (1986).

“Only disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry

of summary judgment.” Id. And the burden of establishing

the absence of a genuine issue of material fact lies with the

moving party. Celotex Corp v Catrett, 477 US 317, 322-23

(1986). Summary judgment is grated only if the moving

party is entitled to judgment as a matter of law. FRCP 56(c).

* page 9 *

The nonmoving party may not simply rely on the

pleadings, however, but must produce significant probative

evidence, by affidavit or as otherwise provided in FRCP 56,

supporting its claim that a genuine issue of material fact

exists. TW Elec Serv v Pacific Elec Contractors Assn, 809

F2d 626, 630 (9" Cir 1987). The evidence presented by the

nonmoving party “is to be believed, and all justifiable

inferences are to be drawn in his favor.” Anderson, 477 US

at 255. “The judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at

App. 14

249.

The evidence presented by both parties admissible.

FRCP 56(e). Conclusory, speculative testimony in affidavits

and moving papers is insufficient to raise genuine issues of

fact and defeat summary judgment. Thornhill Publishing Co,

Inc v GTE Corp, 594 F2d 730, 738 (9" Cir 1979). Hearsay

statements found in affidavits are inadmissible. Japan

Telecom, Inc v Japan Telecom America Inc, 287 F3d 866,

875n1 (9"" Cir 2004).

Whether to allow further discovery under Rule 56(f) is a

subjct committed to the district court’s discretion. Nidds v

Schindler Elevator Corp, 113 F3d 912, 920 (9" Cir 1996). In

considering such a request, the stage of the litigation is an

important consideration. For example, if the movant has

failed diligently to pursue discovery I the past, the court has

discretion to deny Rule 56 (f) application. Id. Likewise,

when “a summary judgment motion is filed * * * early in

the litigation, before a party has had any realistic opportunity

to pursue

* nage 10 *

discovery relating to its theory of the case, district courts

should grant any Rule 56(f) motion fairly freely.” Burlington

Northern Santa Fe Railroad Co v_ Assiniboine & Sioux

Tribes of the Ft Peck Reservation, 323 F3d 767, 773 (9" Cir

2003). Additionally, the Rule 56(f) application must be made

before the summary judgment hearing. Ashton-Tate_v_Ross,

916 F2d 516, 520 (9"" Cir 1990).

The party seeking a Rule 56(f) continuance should

demonstrate that: (1) It has set forth in affidavit form the

specific facts that it hopes to elicit from further discovery;

(2) the facts sought actually exist; and (3) these sought-after

facts are essential to resist the summary judgment motion.

California v. Campbell, 138 F3d 772, 779 (9" Cir 1998).

App. 15

Rule 56 Application

Jensen’s application for further discovery pursuant to

FRCP 56(f) fails to met the requirements of Campbell.

Jensen’s application asserts that he has not had “the financial

resources to pay for depositions or for an expert opinion.”

Doc # 359 at 3 (supporting decl). Moreover, Jensen claims

that defendants have refused to “stipulate to low cost

deposition procedures.” Doc # 358 at 11. “For the foregoing

reasons, [Jensen] has not been able to use depositions” in

opposing defendants’ summary judgment motions. Id at 12.

The application, however, does not set forth: (1) the

specific depositions Jensen wishes to take (e g, his siblings,

Sweet Home defendants, etc), (2) the specific facts Jensen

hope to

* page Il *

obtain from these depositions or (3) Why these facts are

essential to oppose the current motions for summary

judgment. Jensen cannot avoid summary adjudication simply

by asserting that, if he could afford it, he would conduct

additional deposition discovery. Moreover, Jensen has had

ample opportunity to pursue discovery relating to the

theory of his case (emphasis added for purposes of citation

to this text at pg.18, n.22 of writ). Indeed, in his opposition

memoranda, Jensen supplies literally hundreds of documents

produced by defendants during the discovery process in this

case.

Accordingly, Jensen’s Rule 56(f) application is DENIED.

Sweet Home Defendants

As mentioned above, Jensen alleges that Sweet Home

defendants violated his First and Fourteenth Amendment

rights, thereby exposing them to liability under § 1983, and

that they violated his civil nghts as guaranteed by the Unruh

App. 16

Act. SAC 4§| 86-105.

Regarding the § 1983 claim, Jensen asserts that the Apnl

2000, visitation restrictions, as drafted and enforced by Sweet

Home, violated Jensen’s First Amendment right to “speak

freely” with his mother and with his fourteenth Amendment

right to an intimate familial association. Id, {| 96-97. As to

the Unruh Act claim, Jensen claims that Sweet Home

defendants, based solely upon their misperception that Jensen

was mentally disabled, intentionally discriminated against

him by “denying him access” to the Sweet Home facility (1 e,

by imposing the visitation restrictions). Id, {| 101-105. The

court addresses these claims 1n that order.

* nage 12 *

To prevail on a claim brought under § 1983, a plaintiff

must prove two essential elements: (1) that defendants acted

under color of state law and (2) that defendants caused

plaintiff to be deprived of a right secured by the Constitution

and laws of the United States. West v Atkins, 487 US 42, 49

(1988): Johnson v Knowles, 113 F3d 1114, 1117 9" Cir

1997). If the answer to either inquiry 1s no, the § 1983 claim

fails.

“To constitute state action, ‘the deprivation must be

caused by * * * a person for whom the State 1s responsible’

and ‘the party charged with the deprivation must be a person

who may fairly be said to be a state actor.”” West, 487 US at

49-50 (quoting Lugar v Edmondson Oil Co, 457 US at 937)).

Jensen concedes that Sweet Home defendants are private

actors, and thus their conduct 1s ordinarily not subject to §

1983 liability. In fact, “when addressing whether a private

party acted under color of state law, [courts] therefore start

with the presumption that private conduct does not constitute

governmental action.” Sutton _v_ Providence St Joseph

Medical Center, 192 F3d 826, 835 (9" Cir 1999) (citations

omitted). See Mathis v Pacific Gas and Electric Co, 75 F3d

498, 501 (9" Cir 1996) (“While we sometimes treat acts of

private partics as public, we do_ so_ sparingly.’).

App. 17

Consequently, in attempting to hold a private actor liable

under § 1983 a plaintiff bears the heavy burden of proving

that the private actor was a “willful participant in joint action

with state officials.” Mathis, 75 F3d at 503 (emphasis added)

(internal quotations omitted).

Accordingly, in order to survive summary judgment on

his

* page 13 *

§ 1983 claim against Sweet Home defendants, Jensen was

required to come forward with enough probative and

admissible evidence establishing a genuine issue of fact

whether Sweet Home defendants willfully participated with

state defendants (i e, Licensing Division) in depriving him of

his putative constitutional rights.

Jensen did not come close to meeting this burden. In fact,

Jensen himself rings the death knell for this claim in his

opposition by stating: “Sweet Home [argues] that they * * *

did not agree to the imposition of the visitation restrictions,

instead they were compelled to impose them [by state

defendants]. Indeed they were.” Doc # 344 at 13 (emphasis

added). Jensen concedes that the Licensing department

ordered Sweet Home defendants to impose visitation

restrictions. Such compulsion does not a “willful”

participant make under the standard announced in

Mathis (emphasis added for purposes of citation to this text

at pg.21, 25 of wnt). The Ninth Circuit has held that “a

plaintiff must show ‘something more’ than state compulsion

in order to hold a private defendant liable as a governmental

actor.” Sutton, 192 F3d at 838 (emphasis added) (quoting

Carey _v_ Continental Airlines, Inc, 823 F2d 1402, 1404 dio"

Cir 1987)). In other words “without some other nexus

between the private entity and the government, we would

expect that the private defendant is not responsible for the

government’s compulsion.” Id. (emphasis 1n original).

Jensen attempts to overcome this compulsion obstacle by

asserting such a “nexus” between Sweet Home defendants

App. 18

and state defendants: Jensen appears to argue that the State

defendants’ order (requiring visitation restrictions be drafted

and enforced by Sweet Home defendants) was merely a

charade. In reality according to Jensen, Sweet Home

defendants freely

* page 14 *

conspired with state defendants by recommending, drafting

and imposing such restrictions maliciously to prevent Jensen

from visiting his mother. Doc # 344 at 9-13 (stating that

“{tjhere is no doubt that [s]tate defendants agreed with * * *

Sweet Home to impose the visitation restrictions * * *).

Jensen’s conclusions and speculations about such a

conspiracy, however, are insufficient. To raise genuine

issues of fact and defeat summary judgment, he must provide

significant, probative and admissible evidence supporting

such allegations. Thornhill Publishing Co, Inc, 594 F2d at

738.

To call the evidence put forward by Jensen in support

(sic) this alleged “meeting of the minds” between state

defendants and Sweet Home defendants sparse would be an

understatement. First Jensen provides e-mails that were sent

amongst his siblings which state their displeasure with

Jensen’s conduct and their desire to regulate his visitations

with their mother. Doc. # 342, Ex A at 57-63, 69-72, 75.

Included in these e-mails are statements regarding

conversations the siblings apparently had with employees

of DSS and Licensing Division (emphasis added for

purposes of citation to this text at pg.10, n.12 of writ). Id.

Not only are these e-mails inadmissible hearsay under

FRE 802, but more importantly, they offer no evidence

regarding any “meeting of the minds” between state

defendants and Sweet Home defendants (emphasis added

for purposes of citation to this text at pg.27 of writ).

Next, Jensen seizes upon a single sentence in the text of

the visitation restrictions faxed to him by Sweet Home

defendants on April 3, 2000. (emphasis added for purposes

App. 19

of citation to this text at pg.11, n.13 of writ). Id, Ex A at 94-

95. At the bottom of the restrictions page, Mostrales, who

had apparently drafted the visitation restrictions, included the

following phrase: “Done in compliance with the directions

and advice of [DSS employees].” ‘emphasis added for

purposes of citation to this text at pg.i1, n.14 of writ) Id

* page 15 *

at 95 (emphasis added). Jensen asserts that this sentence

undoubtedly proves a connivance between Sweet home

defendants and state defendants to prevent him from visiting

his mother. The court disagrees. All this proves 1s that DSS

ordered Sweet Home to draft these visitation restrictions and

Sweet Home followed that order. This single sentence,

besides being completely innocuous, is hardly the character

of probative evidence required to survive a motion for

summary judgment.

The remainder of Jensen’s opposition is replete with

vague and conclusory statements regarding how he has

“unambiguously” proven a conspiracy between Sweet Home

defendants and state defendants. Doc # 344 at 15-18. Using

the word “conspiracy” repeatedly and making unsupported

legal conclusions that a conspiracy existed is insufficient to

prove such a claim. See Karim-Panahi v_Los Angeles

Police Dep’t, 839 F2d 621, 626 (9"" Cir. 1988).

In Short, Jensen has come forward with no probative

evidence showing that Sweet Home defendants acted

“willingly” with state defendants to impose visitation

restrictions upon him. Rather, he concedes that Sweet

Home’s visitation restrictions were solely the product of

government compulsion (emphasis added for purposes of

citation to this text at pg.21, 25 of writ). Under the Sutton

standard, Sweet Home defendants cannot be liable as a

government actor, and thus no § 1983 can attach to them.

Because the court finds that Sweet Home defendants were

not acting under color of state law, it need not reach the issue

whether Sweet Home defendants deprived Jensen of a

App. 20

constitutional or statutory right.

Accordingly, Sweet Home defendants’ motion for

summary judgment on Jensen’s § 1983 claim is GRANTED.

* nage 16 *

The Unruh Act provides, in relevant part, that “all

persons within [California] * * * no matter what their sex,

race, color, religion, ancestry, national origin, disability or

medical condition are entitled to the full and equal

accommodations, advantages, facilities, privileges, or

services in all business establishments of every kind

whatsoever.” Cal Civ Code § 51(b) (emphasis added). The

term “disability” encompasses mental disabilities, “such as

mental retardation, organic brain syndrome, emotional or

mental illness, or specific learning disabilities, that limit a

major life activity.” Cal Civ Code § Sl(e)(1); Cal Gov’t

Code § 12926(1)(1). Moreover, the Unruh Act does not

require a plaintiff actually to be mentally disabled in order to

invoke the protection of the Act. Rather, “being regarded as

or treated * * * as having, or having had, any medical

condition that makes achievement of a major life activity

difficult” 1s sufficient to place a plaintiff in a protected class

for the purposes of Unruh Act liability. Cal Gov’t Code §

12926 (1)(5).

While the language of the Unruh Act appears to paint

with broad strokes, the California courts have placed two

significant limitations on the scope of the Act.

First, courts have held that “the Unruh Act does not

prohibit discrimination against persons based on_ their

conduct, but only prohibits that discrimination resulting from

the individual’s membership in a particular class of persons.”

Cloutier v Prudential Insurance Co of America , 964 F Supp

2d 299, 304 (ND Cal 1997) (emphasis added) (citing Gayer v

Polk Gulch, Inc, 231 Cal App 3d 515, 525 (19991)).

Accordingly, a business entity 1s

* page |7 *

App. 21

not liable for discriminating against a plaintiff, who happens

to be a member of a suspect class, so long as such

discrimination is based upon the plaintiff's inappropriate

conduct (as judged by the defendant business) and not based

upon his class membership.

Next, the California Supreme Court has held that the

Unruh Act prohibits only “arbitrar[y]” discrimination based

upon an individual’s class membership. In Re Cox, 3 Cal 3d

205, 217 (1970) Accordingly, “a business establishment

may, of course promulgate reasonable deportment regulations

that are rationally related to the services performed and the

facilities provided.” Id. This second limitation on the scope

of the Unruh Act was reaffirmed in Marina Point, Ltd v

Wolfson, 30 Cal 3d 721 (1982). In Marina Point, the

California Supreme Court stated:

As our decision {] in Cox * * * teache[s],

although entrepreneurs unquestionably

possess broad authority to protect their

enterprises from improper and disruptive

behavior, under the Unruh Act entrepreneurs

must generally exercise this legitimate interest

directly by excluding those persons who are in

fact disruptive .

Id at 740 (emphasis added).

Accordingly, a business entity may legally exclude an

individual based upon his class membership, so long as such

exclusion is reasonably based upon the services and facilities

provided by the business.

Jensen claims that Sweet Home defendants perceived him

as a mentally disabled individual, a misperception according

to Jensen, and that based upon this misperception, they

denied him access to the Sweet Home facilities in violation

of the Unruh Act.

Sweet Home defendants are entitled to summary

judgment on this claim. As explained above in the court’s

analysis of Jensen’s

App. 22

* page 18 *

§ 1983 claim, Sweet Home defendants were compelled by

State defendants to impose visitation restrictions on Jensen

and Jensen has come forward with no probative or admissible

evidence negating such a _ finding of compulsion.

Accordingly, because Sweet Home defendants were clearly

acting under state order in imposing visitation restrictions en

Jensen, no jury could fairly find that Sweet Home defendants

were arbitrarily imposing such restrictions voluntarily based

on their misperception of Jensen’s mental disability.

It is important to note that this case has finally reached

the summary judgment phase of litigation and Jensen is no

longer afforded the lu8xery of having his allegations assumed

to be true, as he did in the motion to dismiss phase.

Although Jensen is entitled to have his evidence viewed in

the most favorable light, he must come forward with

something to back up his claims. He has not done so.

The undisputable fact is that, on April 3, 2000, Sweet

Home defendants placed visitation restrictions on Jensen

pursuant to state defendants’ direction. Jensen’s speculative

(if not delusional) assertion that such restrictions were

imposed in accordance with an overarching government

conspiracy or based solely upon misperceptions of his mental

health are wholly unsupported by any probative evidence and

thus cannot establish a genuine issue of material fact.

Accordingly, Sweet Home defendants’ motion for

summary judgment on Jensen’s Unruh Act claim ts

GRANTED.

* page 19 *

Kaiser Defendants

Jensen sues Kaiser defendants, namely Dr. Jue, alleging a

violation of the Unruh Act. The following undisputed facts

are relevant for purposes of Jensen’s Unruh Act claim against

App. 23

Kasier defendants.

In April 1999, Jensen, who has no medical training, came

to believe that his mother was suffering from a urinary tract

infection (UTI). Doc. # 342 at 2. Apparently under the

direction of Jensen, Dr. Jue conducted a urinalysis Jensen’s

mother, which tested positive for the presence of bacteria. Id.

Dr. Jue, however, noticed that Jensen’s mother was

suffering from no clinical symptoms of UTI, such as fever,

burning pain with urination. (emphasis added for purposes

of citation to this text at page 29, n.28 of writ). Doc # 324, {

2 (Jue Declaration). Accordingly, Dr. Jue explained to

Jensen that his mother was not suffering from UTI and that

the bacteria in his mother’s urine was called “asymptomatic

bacteriuria,” which is very common in the elderly patients.

Id. Dr. Jue explained that this type of bacteria is not

treatable with antibiotics absent some clinical symptoms

of UTI, (emphasis added for purposes of citation to this text

at page 25 of wnt). and thus Dr. Jue refused, despite Jensen’s

urging, to prescribe antibiotics for Jensen’s mother. Id. Dr.

Jue explained this diagnosis to Beth Wells and she agreed

with Dr Jues’s recommendations. Id. Jensen, however

strongly disagreed, and on May 26, 1999, sent Dr. Jue a letter

“disagreeing with his diagnosis and reporting that his mother

also suffered from suprapubic (bladder) tenderness * * * and

advocated for treatment” with antibiotics. Doc. # 342 at 2.

Dr. Jue, realizing that Beth Wells had durable power of

attorney over her mother’s medical treatment,

* nage 20 *

refused to follow Jensen’s medical “advice.”

Based on the foregoing facts, Jensen asserts that Kaiser

defendants, like Sweet Home defendants, discriminated

against him based solely upon misperceptions that he was

mentally disabled. SAC 4% 103, 104. Jensen’s confused

logic is as follows: First, Jensen asserts that Jue somehow

perceived him as a mentally disabled individual (though there

is no evidence to this effect). Id, § 102. Based on his

App. 24

misperception of Jensen, Dr. Jue agreed with Sweet Home

defendants (in some sort of covert conspiracy) that none of

Jensen’s medical reports or statements concerning his

mother’s health should be given credit. In furtherance of this

conspiracy, Dr. Jue refused to give credence to Jensen’s

belief that he had a UTI (emphasis added for purposes of

citation to this text at pg.25 n.25 of writ), thus depriving his

mother of Kaiser’s “services” in violation of the Unruh Act.

In short, Jensen claims that his mother was denied

adequate medical services by Kaiser based upon Dr. Jue’s

misperception of Jensen’s mental disability in violation of the

Unruh Act. This convoluted argument is procedurally and

substantively flawed.

Jensen is procedurally barred from asserting this claim

because he does not have standing to assert his deceased

mother’s potential claim for denial of services. If Jensen’s

mother was denied equal “access” to medical “services” in

violation of the Unruh Act, that is a claim only her estate is

entitled to bring. Moreover, the Ninth Circuit has already

stated that Jensen should not be allowed to amend his

complaint to plead such a claim on behalf of his mother’s

estate, as such an amendment would be futile. Doc # 136 at

* page 21*

But assuming Jensen’s claim were procedurally proper,

and even assuming his mother had been denied equal! access

to services based upon her hypothetical membership in the

protected class of perhaps, “elderly sick mother with

misperceived mentally ill sons.” Kaiser defendants would

still be entitled to summary judgment on this Unruh Act

claim. As mentioned above, a business entity may legally

exclude am individual based upon her class membership, so

long as such exclusion is reasonably based upon the services

and facilities provided by the business. Marina point, 30 Cal

3d at 470. Dr. Jue’s diagnosis of Jensen’s mother was (1)

based on Dr. Jue’s training and expertise and (2) explicitly

App. 25

approved by Beth Wells, who had authority over Jensen’s

mother’s medical care. Jensen’s opinion testimony to the

contrary concerning his mother’ medical condition 1s

inadmissible pursuant to FRE 702, as Jensen is not an expert

witness.

Nor has Jensen come forward with any admissible and

probative evidence offering a genuine issue of fact regarding

an alleged conspiracy between Sweet Home defendants and

Dr. Jue to refuse to give credence to Jensen’s medical

concerns. First, Jensen purports to prove his “conspiracy” by

offering a letter sent to him by his brother, Peter Jensen,

which reads: “you have alienated the people at Sweet Home

and the people at Kaiser.” Doc # 327, Ex A at 44 (Jensen

deposition). Not only is this “evidence” inadmissible

hearsay under FRE 802, but more importantly, this statement

shows nothing regarding a conspiracy between Sweet Home

and Kaiser. Next, Jensen offers evidence regarding a

“hostile” librarian at the Kaiser facility in order to show

a conspiracy: (emphasis added for purposes of citation to

this text at page 28, n.27 of writ).

A: (Jensen): I had established a rapport with

* page 22 *

the librarian [at the Kaiser facility in

Fremont]. She was helpful * * * . But,

then one day when I appeared, she was

very hostile to me.

(Kaiser counsel): Okay.

and after that, | knew something was

going on, and | became concermed.

What do you mean she was hostile.

Did she say something that was —

Well, she didn’t say anything. She

wouldn’t talk to me. She had a very

hostile expression, like “go away,” you

know, expression on her face. And, you

know, the body language was all there.

App. 26 :

id, Ex A at 37-38.

This deposition testimony again shows the character of

‘evidence’ Jensen has offered this court to prove a host of

conspiracies (emphasis added for purposes of citation to this

text at page 28, n.27 of writ). Jensen appears to misinterpret a

single isolated incident and then build an inference upon

inference in order to prove an evil conspiracy between

defendants. this is not the type of probative evidence that

suffices to raise a genuine issue of fact. One librarian being

in a bad mood one day at work proves nothing.

Finally, Jensen claims that the court can “infer” a

conspiracy simply because “Dr. Jue knows Minerva

Mostrales.” Id, Ex A at 51. This speculative argument

borders on ridiculous and again shows the shortcomings of

Jensen’s case.

Accordingly, not only is Jensen’s Unruh Act claim

against Kaiser defendants procedurally flawed but Jensen

also fails to bring forward any probative and admissible

evidence to raise an issue of material fact whether Dr. Jue’s

refusal to give Jensen’s mother a course of antibiotics was

unreasonable or that Dr. Jue

* page 23 *

conspired with Sweet Home defendants.

Kaiser defendants’ motion for summary judgment on

Jensen’s Unruh Act claim is GRANTED.

Vil

State Defendants

Jensen asserts a § 1983 claim against the state defendants

for alleged violations of the First and Fourteenth

Amendment. According to Jensen, the Licensing Division,

namely investigators Anita Gopaul (Gopaul) and Elaine

Arrington (Arrington), approved and offered advice

regarding the content of the visitation restrictions imposed by

Sweet Home on April 3, 2000. In doing so, these state

App. 27

defendants violated Jensen’s First Amendment rights “to

speak freely” with his mother and his Fifth and

Fourteenth Amendment Rights substantive due process

right “freely [to] associati[e] [with his mother] in a

familial relationship,” and “his obligation of love and

duty to his mother * * * .” (emphasis added for purposes of

citation to this text at pg.15 n.18 of writ). Doc # 311, 4§| 96-

97. Jensen sues Gopaul, Arrington, and Marth (sic) Lopez

(Lopez) (all DSS employees) in both their individual and

official capacities. Id at 4§| 5-6. Inasmuch as Jensen sues

these state employees in their official capacities, the suit

amounts to a claim against the state agency, the DSS, and

thus 1s a suit against the state of California. See Hawaii v.

Gordon, 373 US 57, 58 (1963).

Accordingly, in analyzing Jensen’s § 1983 claim, the

court must analyze the claim as it (1) relates to the

employees in their individual capacity and (2) relates to the

state agency. The individual defendants claim they are

entitled to qualified immunity on Jensen’s § 1983 claim, Doc

# 332, and move for summary

* page 24 *

judgment in their favor on this issue. The state agency

asserts it is entitled to summary judgment because there is no

genuine dispute of fact whether Jensen’s constitutional rights

were violated.

Jensen also asserts that State defendants violated Title II

of the ADA, 42 USC 12101, et seq, and the RA, 29 USC 794,

by discriminating against him based solely upon a perceived

mental disability. Doc # 311, 44 100-105. State Defendants

move for summary judgment in their favor, arguing that the

visitation restrictions were imposed on Jensen for reasons

completely divorced from the alleged perceived mental

disability. Doc 332 at 15-17.

The court considers these claims in that order.

App. 28

1983 Claim: State Officials Sued in Individual Capacity

“Government officials sued in their individual capacities

under § 1983 may raise the affirmative defense of qualified

immunity * * * . Qualified immunity generally protects

government official in the course of performing the

discretionary duties of their offices.” Butler v.Elle, 291 F3d

1014, 1021 (g"" Cir 2002) (citing Harlow _v Fitzgerald, 457

US 800, 818 (1982)). The question of qualified immunity is

a question of law to be determined by the trial court. Siegert

v Gilley, 500 US 226 (1991). “The first step in evaluating a

qualified immunity defense is to determine whether the

plaintiff has shown that the action complained of constituted

a violation of his or her constitutional rights.” Butler 281

F3d at 1021 (citing Sonada vy Cabrera, 255 F3d 1035 1040

(g"" Cir 2001)). If the court is satisfied that a constitutional

violation occurred,

* page 25 *

“the second step is to determine: (1) whether the violated

right was clearly established, and (2) whether a reasonable

public official could have believed that the particular conduct

at issue was lawful.” Id.

Applying this legal framework to Jensen’s claim, the

court need not reach the second step of this inquiry because

the action Jensen complains of does not constitute a violation

of either his First or Fourteenth Amendment nghts. As to

the First Amendment claim, it is clear that Jensen had no

right to engage in free expression on Sweet Home’s

private property. See Hudgens v NLRB, 424 US 507, 518

(1976) (holding that picketers “have no First Amendment

right” on a shopping center’s private property). Since

Jensen had no First Amendment rights on Sweet Home’s

private property, it follows that state defendants could

not deprive him of this nonexistent right. Accordingly,

the visitation restrictions do not constitute a

App. 29

constitutional violation and thus Gopaul, Arrington and

Lopez are entitled to qualified immunity (emphasis added

for purposes of citation to this text at pg.27 of writ).

The Fourteenth Amendment claim, however, presents a

closer question. The Supreme court recently stated that there

is some discussion in our cases of a nght to maintain certain

familial relationships, including association among members

of an immediate family * * * .” Overton v Bazzetta, 539 US

126, 131 (2003) (citing Moore v East Cleveland, 431 US 494

(1977) (plurality opinion) and Meyer v_ Nebraska, 262 US

390 (1923)). The Ninth Circuit has tread into the area as yet

to be entered by the Supreme Court in holding that there

exists a “constitutional interest in familial companionship * *

* [that] protect[s] children from unwanted state interference

with their relationships with their parents.” Smith v

* page 26 *

City of Fontana, 818 F2d 1411, 1418 (9" Cir 1987). Smith’s

logic applies to adult children as well as minor children, for

“when * * * a child claims constitutional protection for [his]

relationship with a parent, there is no custodial interest

implicated, but only a companionship interest.” Id at 1419.

This “liberty” interest arises from the due process clause of

the fourteenth Amendment. Accordingly, under Ninth

Circuit precedent, Jensen had a cognizable liberty interest in

the companionship of his mother that the government, in the

words of the Ninth Circuit, “could not unreasonably restrict.”

Doc # 136 at 3 (emphasis added).

What constitutes a “reasonable” restriction of the child-

parent relationship is unclear as Smith did not announce any

broad principles concerning this area of law. Rather, Smith

appears to endorse a case-by-case analysis approach to

determine whether “state interference was ‘for purposes of

oppression,” rather than for purpose of furthering legitimate

state interest.” Smith, 818 F3d at 1419 (quoting Daniels v

Williams, 474 US 327, 331 (1986)). The last word from the

Supreme Court on this topic came from the plurality opinion

App. 30

in Moore, when Justice Powell, joined by Justices Brennen,

Marshall, and Blackman, stated that “when the government

intrudes on choices concerning family living arrangements,

this court must examine carefully the importance of the

governmental interests advanced and the extent to which they

are served by the challenged regulation.” Moore, 431 Us at

499 (citing Poe v Ullman, 367 US 497, 554 (1961) (Harlan, J,

dissenting)). Building on the guidance offered by the Court

and the Ninth Circuit, the court must first determine if state

defendants’ interests in imposing the visitation restrictions

are

* page 27 *

legitimate. If such interests are legitimate, Moore instructs

the court examine the importance of the interests and the

extent to which the visitation restrictions serve the interests.

In other words, whether Jensen’s substantive due process

rights have been “unreasonably” restricted, turns on whether

the government struck a balance between the individual’s

constitutional right and the government’s legitimate interest

in some public welfare or safety.

Applying this legal standard it is clear that the state

has a legitimate and very important interest in the

orderly operation of nursing homes and preventing the

potential abuse of its elderly citizens (emphasis added for

purposes of citation to this text at pg.19, 25 of writ). The

question thus becomes whether the visitation restrictions

served these legitimate interests in a manner that also

attempted to respect Jensen’s constitutional rights.

The visitation restrictions furthered the state’s legitimate

interests. State defendants offer Jensen’s own admissions,

made during his deposition, that he (1) changed his

mother’s diapers, (2) inspected the “volume, odor and

appearance” of his mother’s urine, (3) took his mother in

a car with no seatbelts to doctor visits that were not

authorized by his siblings, (4) inspected his mother’s anal

and vaginal areas for cleanliness, (5) began diagnosing his

App. 31

mother with illness based on his complete lack of medical

training and (6) kept a sample of his mother’s “purulent”

mucous she had coughed up in a tissue. Doc # 334 (sic, #

should be 335, declaration of Susan J. King), Ex C at 24-25,

91-92, 102-03. Restricting Jensen’s access and

unsupervised contact with his mother furthers the state’s

important interest in preventing potential abuse

(emphasis added for purposes of citation to this text at pg.19,

25 of writ). Moreover, state defendants did not arbitrarily

ignore Jensen’s right of

* page 28 *

companionship with his mother. The visitation restrictions

still allowed Jensen to visit his mother (his purported only

desire) (emphasis added for purposes of citation to this text

at page 25, n.25 of writ) twice a week as !ong as he was

accompanied by another individual, while also pacifying his

sibling’s and Sweet Home defendants’ legitimate concerns

that Jensen was putting his mother in danger or doing

inappropriate things to her. These restrictions were warranted

and extremely reasonable for all parties involved.

The only evidence Jensen offers to show that the

restrictions were reasonable are the “verified facts”

contained in the SAC asserting that the restrictions were

based on (1) false and defamatory statements made by his

siblings and (2) the alleged conspiracy between state

defendants and Sweet Home (emphasis added for purposes

of citation to this text at pg.19 of writ). Doc # 344 at 8

(“plaintiff * * as alleged in the verified facts of the SAC * *

* that the allegations [that] he was disruptive are false’). Id.

(“[UJnder the verified facts of the complaint, the visitation

restrictions were unreasonable * * * .). Doc # 342 at 8

(“Plaintiff has declared in the verified facts of the SAC * * *

that the allegations that were made against him are false.”).

Doc # 344 at 2 (“State and Sweet Home’s proffered evidence

cannot controvert plaintiff's own declarations * * * including

his verified facts of the SAC.”).

App. 32

The court has already held that Jensen has come forward

with no admissible evidence showing a conspiracy between

state defendants and Sweet Home defendants. See supra

[IV(A) at 12-13. In addition, Jensen apparently believes

that the allegations contained in the SAC, have gone

through some “verification” process (a process foreign to

the court), morphed into admissible evidence within the

meaning proof FRCP 56(e). Jensen misses the mark,

* page 29 *

as the Supreme Court has clearly held that “Rule 56() * *

* requires the nonmoving party to go beyond the

pleadings and * * by depositions, answers to

interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.”

Celotex_ 477 US at 325 (emphasis added). Accordingly,

Jensen’s verified “facts” are insufficient to raise a

genuine issue of material fact (emphasis added for purposes

of citation to this text at pg.19 of wnt).

Accordingly, the court determines that Jensen’s

Fourteenth Amendment right to companionship with his

mother was not unreasonably restricted; no reasonable jury

could find otherwise. As no constitutional violation

occurred, the state defendants sued in their individual

capacities are entitled to summary judgment.

Even assuming arguendo that the visitation restrictions

were unreasonable, and thus in violation of Jensen’s

constitutional rights, the state defendants are still entitled to

qualified immunity because Jensen’s violated rights were not

“clearly established.” Butler, 2281 F3a at 1021. While

Smith is still good law, there is no Supreme Court case law

establishing a substantive due process right of companionship

between an adult child and his elderly mother. Moreover,

even if such a nght were clearly established, no reasonable

public official would believe placing restrictions on a son’s

access to his elderly mother was unlawful in light of the son’s

siblings, both of whom had a durable power of attorney,

App. 33

attempting to prevent all contact between the son and his

mother. To state defendants, the visitation restrictions

appeared to preserve Jensen’s companionship interest with

his mother, not arbitrarily destroy such interest. Accordingly

no reasonable public official would have thought the

particular conduct at issue

* page 30 *

was unlawful.

$1983 Claim: State Agency

As described above, in order to prevail on a § 1983 claim,

a plaintiff must show that he was deprived of a constitutional

or statutory right by a defendant acting under color of state

law. West, 487 US at 49. It is undisputed that state

defendants acted under color of state law and thus the court’s

sole inquiry focuses on whether Jensen’s constitutional rights

were violated.

Fortunately, this inquiry was already conducted above in

relation to the state defendants sued in their individual

capacities. As stated above, Jensen had no First Amendment

rights on Sweet Home’s private property and the visitation

restrictions imposed against Jensen were reasonable as a

matter of law. As the restrictions were reasonable, the state

agency’s official conduct survives constitutional scrutiny and

its motion for summary judgment on Jensen’s § 1983 claim is

GRANTED.

Finally, Jensen asserts that state defendants, based solely

upon their musperception that he was mentally ill,

discriminated against him in violation of Title II of the ADA,

42 USC 12101, et seq, and section 504 of the RA, 29 USC §

794. Doc # 311, 9} 101-104.

“To prove a public program or service violates Tile Il of

the ADA, a plaintiff must show: (1) he is a ‘qualified

App. 34

* page 31 *

individual with a disability’; (2) he was either excluded

from participation in or denied the benefits of a public

entity’s services * * * or was otherwise discriminated against

by the public entity; and (3) such exclusion, denial of

benefits or discrimination was by reason of his disability.”

Weinreich v___ Los _ Angeles County _ Metropolitan

Transportation Authority, 114 F3d 976, 978 (1997) (quoting

42 USC § 12132) (emphasis in original).

For purpose of the ADA, the term “individual with a

disability” includes those who are “regarded as” having “a

physical or mental impairment that substantially limits one or

more of the major life activities of such individual.” 42 USC

§ 12102. As to the RA, Jensen and state defendants appear to

dispute whether the term “individual with a disability”

includes those who are merely regarded as being mentally ill.

Doc # 344 at 22-23. This dispute, however, does not pertain

to a material fact, for even assuming the scope of the RA

extends to individuals regarded as mentally ill, Jensen has

come forward with no admissible evidence regarding whether

state defendants actually perceived Jensen as mentally ill.

First, Jensen again relies heavily on the “verified facts”

contained in his SAC. Doc # 344 at 25 (stating that the

verified facts of the SAC constitute ‘direct evidence of [state

defendants] discriminatory motive”). For the same reason

explained

* page 32 *

above, the allegations in Jensen’s SAC are not “evidence”

for the purposes of a motion for summary judgment

(emphasis added for purposes of citation to this text at pg.19

of writ).

Next, Jensen offers the court the following “evidence”:

Plaintiff asked several of his friends why

[defendants were being mean to him]. They

explained to him that because of his unhealthy

appearance and sickness behavior [sic], some

App. 35

people thought he was on drugs. It became

apparent to plaintiff after this revelation that there

were other erroneous conclusions that were drawn

by strangers. A friend in Oregon told plaintiff *

* * that plaintiff looked like he had AIDS and

some people asked plaintiff if he had AIDS which

can also cause cognitive impairment. It also

appears that some people thought that plaintiff

had a mental or psychological disorder * * * as

State and Sweet Home defendants did in this case.

Doc # 344 at 24.

Because some “friends” and a “friend in Oregon” told him

that he looked like he used drugs or appeared to be suffering

from AIDS related or induced illness, Jensen reaches the

conclusion that state defendants surely perceived him as

being mentally ill. Such speculative and conclusory

statements are inadmissible and cannot raise a genuine issue

of material fact.

The court, however, need not base its decision on the

absence of evidence showing whether state defendants

perceived Jensen as mentally ill. For even assuming state

defendants made such a misperception, they would still be

entitled to summary judgment on Jensen’s ADA and RA

claims. As explained above, “a plaintiff proceeding under

Title I] of the ADA must, similar to a [s]ection 504 plaintiff,

prove that the exclusion from participation in the program

was solely by reason of disability.” Weinreich, 114 F3d at

978-79 (emphasis added) (internal quotations and citations

omitted). State defendants claim there is no genuine

* page 33 *

dispute of material fact whether the decision to order, and

approval of, the visitation restrictions were based, partly

(if not completely) on Jensen’s strange and dangerous

conduct, as well as his siblings’ genuine concern for their

mother’s well-being (emphasis added for purposes of

citation to this text at pg.16 n.19). Doc # 332 at 17

App. 36

(“[Plaintiff] had his visits restricted because of his own

bizarre and disturbing behavior.”).

Accordingly, for Jensen to survive summary judgment on

these claims he was required to come forward with

admissible evidence establishing an issue of fact whether

misperceptions regarding his mental health were the sole

basis for imposing the visitation restrictions. Jensen’s

proffered “evidence” establishing that his misperceived

mental disability was the sole reason for his exclusion,

however, falls far short of meeting this requirement.

Jensen relies upon statements made by his siblings to

various state and Sweet Home defendants. Doc # 344 at 25-

26. For example, Peter Jensen wrote to DSS that he thought

Jensen was “mentally unbalance.” Doc # 3/1, Ex C at 1.

Also, Beth Wells told Gopaul that “Tom is disruptive and

unbalanced.” Doc # 345, Ex. A at 5. These are simply two

representative examples of several statements, all to the same

effect, made by Jensen’s siblings to various defendants.

Moreover, Jensen offers a letter from Mostrales to state

defendants stating that “it is Tom’s mental and behavioral

[sic] problems that prompted him to bring [his mother] to

{Kaiser’s office.” Doc # 311, Ex C at 3 (emphasis added).

The foregoing “evidence,” according to Jensen, “support{s]

the strong inference that discrimination on the basis of

disability was determinative of the acts and decisions of

[s]tate defendants.”

* page 34 *

Doc # 344 at 25.

First, all of these statements are hearsay within the

meaning of FR 802 and Jensen has made no argument

that these statements are admissible under an exception

to the hearsay rule (emphasis added tor purposes of citation

to this text at pg.27 of writ). But more importantly, this

evidence actually belies Jensen’s assertion, as Mostrales’

letter to state defendants explicitly references Jensen’s

“behavioral problems” (i.e. his conduct), thus negating the

App. 37

assertion that only Jensen’s perceived mental illness was at

issue in imposing the visitation restrictions.

Upon viewing all of the evidence, it is beyond dispute

that state defendants’ actions were based in large part (if

not entirely) on Jensen’s bizarre conduct towards his

mother and the anxious reactions this behavior elicited

from his siblings (emphasis added for purposes of citation to

this text at pgs.16 n.19). No reasonable jury could find

otherwise. Accordingly, as Jensen’s perceived mental

disability was not the sole basis for imposing the visitation

restrictions, state defendants’ motion for summary judgment

on Jensen’s ADA and RA claims is GRANTED.

VII

In sum, the court DENIES Jensen’s motions for

reconsideration (Doc # 358), DENIES Jensen’s Rule 56(f)

application (Doc # 358) and GRANTS all defendants’

motions for summary judgment (Docs ## 322, 329, 332).

On a side note, after four years of litigation, massive

amounts of paper and numerous hours expended by all

involved, the court is of the opinion that at the heart of

this complicated lawsuit is a man despondent over the

state of his relationship with his immediate family. It is

the court’s sincere hope that these

* page 35 *

differences are eventually healed or, at least, ameliorated.

But it is not the job of the court to provide vengeance or

leverage to siblings involved in familial disputes. The

court believes that efforts to repair his tattered

relationships will yield Jensen more promising results

than litigation (emphasis added for purposes of citation to

this text at pg.2, n.1 of writ).

It is so ordered.

Vaughn R. Walker

United States District Chief Judge

App. 38

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 05-15346

D.C. No. CV-00-03261-VRW

(Filed July 21, 2006)

Tom Jensen,

Plaintiff-Appellant,

Sweet Home One Care Facility,

A business entity, et al.,

Defendants - Appellees

ORDER

Before: B. Fletcher, Trott, and Callahan, Circuit Judges

The panel has voted to deny appellant’s petition for panel]

rehearing.

The full court has been advised of the petition for

rehearing en bane and no judge has requested a vote on

whether to rehear the matter en banc. See Fed.R.App.P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are denied.

No further filings will be accepted in this closed appeal

App. 39

FEDERAL CONSTITUTIONAL PROVISIONS

1 Amendment of the Constitution of the United States

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

Government for redress of gnevances.

Section 1 of the 14" Amendment of the Constitution of

the United States

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

FEDERAL STATUTORY PROVISIONS

42 United States Code Section 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any action

brought against a judicial officer for any act or omission

taken in such officer’s judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the purposes of

this section, any Act of Congress applicable exclusively o the

District of Columbia shall be considered a statute of the

App. 40

District of Columbia.

42 United States Code Section 12132

Subject to the provisions of this title, no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.

STATE LAW PROVISIONS

California Civil Code Section 51

(a) This section shall be known, and may be cited, as the

Unruh Civil Rights Act.

(b) All persons within the jurisdiction of this state are free

and equal and no matter what their sex, race, color, religion,

ancestry, national origin, disability, medical condition,

marital status, or sexual orientation are entitled to the full

and equal accommodations advantages, facilities, privileges,

or services of all business establishments of every kind

whatsoever.

privilege on a person that is conditioned or limited by law or

that is applicable alike to persons of every sex, color, race,

religion, ancestry, national origin, disability, medical

condition, marital status, or sexual orientation.

(1) “Disability” means any mental or physical disability as

defined in Sections 12926 and 12926.1 of the Government

Code.

(5) “Sex, race, color, religion, ancestry, national origin,

disability, medical condition, marital status, or sexual

orientation” includes the perception that the person has any

particular characteristic or characteristics within the listed

App. 41

categories or that the person is associated with a person who

has, or is perceived to have, any particular characteristic or

characteristics within the listed categories.

(f) A violation of the right of any individual under the

Americans with Disabilities Act of 1990 (Public Law 10I-

336 shall also constitute a violation of this section.

California Government Code Section 12926

As used in this part in connection with unlawful practices,

unless a different meaning clearly appears from the context:

(1) “Mental disability” includes, but is not limited to, all of

the following:

(4) Being regarded or treated by the employer or other entity

covered by this part as having, or having had, any mental

condition that makes achievement of a major life activity

difficult.

(B) (iti) “Major life activities” shall be broadly construed and

includes physical, mental and social activities and working.

California Civil Code Section 52

(a) Whoever denies, aids, or incites a denial, or makes any

discrimination or distinction contrary to Section 51, 51.5, or

51.6, 1s liable for each and every offense for the actual

damages, and any amount that may be determined by a jury,

or a court sitting without a jury, up to a maximum of three

times the amount of actual damage but in no case less than

four thousand dollars ($4,000), and any attorney’s fees that

may be determined by the court in addition thereto, suffered

by any person denied the rights provided in Section 51, 51.5,

or 51.6. ....

App. 42

California Civil Code Section 52.1

(a) if a person or persons, whether or not acting under color

of law, interferes by threats intimidation, or coercion, or

attempts to interfere by threats, intimidation, or coercion,

with the exercise or enjoyment by any individual or

individuals of rights secured by the Constitution or laws of

the United States, or of the rights secured by the Constitution

or laws of this state, the Attorney General, or any district

attorney or city attorney may bring a civil action for

injunctive and other appropriate relief in the name of the

people of the State of California, in order to protect the

peaceable exercise or enjoyment of the nght or rights

secured. An action brought by the Attorney General, any

district attorney, or any city attorney may also seek a civil

penalty of twenty-five thousand dollars ($25,000). If this

civil penalty is requested, it shall be assessed individually

against each person who is determined to have violated this

section and the penalty shall be awarded to each individual

whose rights under this section are determined to have been

violated.

(b) Any individual whose exercise or enjoyment of rights

secured by the constitution or laws of the United States, or of

rights secured by the constitution or laws of this state, has

been interfered with, or attempted to be interferred with, as

described in subdivision (a), may institute and prosecute in

his or her own name and on his or her own behalf a civil

action for damages, including, but not hmited to, damages

under Section 52, injunctive relief, and other appropriate

equitable relief to protect the peaceable exercise or

enjoyment of the nght or rights secured.

California Health and Safety Code § 1569.35

(a) Any person may request a imspection of any

residential care facility for the elder in accordance with this

chapter by transmitting to the department notice of an alleged

violation of applicable requirements prescribed by statutes or

App. 43

regulations of this state, including, but not limited to, a denial

of access of any person authorized to enter the facility

pursuant to Section 9722 of the Welfare and Institutions

Code. A complaint may be made either orally or in writing.

alleging denial of a statutory right of access to a residential

care facility for the elderly, the department shall make a

preliminary review and, unless the department determines

that the complaint is willfully intended to harass a licensee or

is without any reasonable basis, it shall make an onsite

inspection within ten days after receiving the complaint

(emphasis added for purposes of citation to this text at pg.9

of writ) except where the visit would adversely affect the

licensing investigation or the investigation of other agencies,

including, but not limited to, law enforcement agencies. In

either event, the complainant shall be promptly informed of

the departments proposed course of action. ....

California Probate Code § 4720

Durable Power of Attorney for Health Care

(Repealed by Stats.1999, c.658, (A.B.891, § 38, operative

July 1, 2000, current equivalent sections, Prob. Code §§

4682, 4684. Stats.2001, c.230 (A.B.1278) provided that

designated surrogates have priority over holders of durable

power of attorney. Prob.Code § 4711)

(a) Unless the durable power of attomey provides

otherwise, the attorney-in-fact designated in a durable power

of attorney for health care who is known to the health care

provided to be available and willing to make health care

decisions has priority over any other person to act for the

principal in all matters of health care decisions, but the

attorney-in-fact docs not have authority to make a

particular health care decision if the principal is able to

give informed consent with respect to that decision.

App. 44

attorney for health care, the attorney-in-fact has a duty to

act consistent with the desires of the principal as

expressed in the durable power of attorney or otherwise

made known to the attorney in fact at any time or, if the

principal’s desires are unknown, to act in the best

interests of the principal. ....

(emphasis added for purposes of citation to this text at pg.8

of writ).

STATE REGULATORY PROVISIONS

California Code of Regulations, Title 22, § 87572

Personal Rights

(a) Each resident shal] have personal rights which include,

but are not limited to the following:

(6) To leave or depart from the facility at any time and

not to be locked into any room, building, or on facility

premises by day or night.

(11) To have his or her visitors, including Ombudspersons

and advocacy representatives permitted to visit privately

during reasonable hours and without prior notice,

provided that the rights of other residents are not infringed

upon. ....

(emphasis added for purposes of citation to this text at

pgs.11, 19, n.23 of writ).

California Code of Regulations, Title 22, § 87591

Observation of the Resident

(Register 98.No.20.5-16-98, amended 2004, to require

reporting of “deterioration of mental ability”)

The licensee shall regularly observe each resident for

changes in physical, mental, emotional and _ social

functioning. The licensee shall provide appropriate

App. 45

assistance when such observation reveals unmet needs which

might require a change in the existing level of service, or

possible discharge or transfer to another type of facility.

When changes such as unusual weight gains or losses or

deterioration of health condition are observed, the

licensee shall document such changes and bring such

changes to the attention of the resident’s physician and

the resident’s responsible person, if any.

(emphasis added for purposes of citation to this text at pg.19,

n.23, 29 of writ).

California Code of Regulations, Title 22, § 87702

Allowable Health Conditions

(Register 97.No.20.5-16-97, amended 2001)

(a) A licensee shall be permitted to accept or retain in a

Residential Care Facility for Elderly persons who have a

health condition(s) which requires incidental medical

services including but not limited to, those specific situations

specified in Sections 87703-87715 of this chapter.

California Code of Regulations, Title 22, § 87708.

Managed Bowel and Bladder Incontinence

(a) The licensee shall be permitted to accept or retain a

resident who has a manageable bowel and/or bladder

incontinence condition under the following circumstances:

(1) the condition can be managed with any of the

following:

intervals.

(b) In addition to Section 87702.1, General

Requirements for Allowable Health Conditions, the licensee

shall be responsible for the following:

App. 46

(1) Ensuring that residents who can benefit from

scheduled toileting are assisted or reminded to go to the

bathroom at regular intervals rather than being diapered

(3) Ensuring that incontinent residents are kept clean

and dry and that the facility remains free of odors from

incontinence. ....

(emphasis added for purposes of citation to this text at pg.19,

7.23 of writ).

California Code of Regulations, Title 22, § 87702.1

General Requirements for Allowable Health Conditions

(register 97. No.20.5-16-97, amended 2003)

(a) The licensee shall complete and maintain a current,

written record of care for each resident that includes, but is

not limited to, the following:

(1) Documentation from the physician of the

following:

(A) Stability of the medical condition(s);

(E) An appropriately skilled professional shall be

identified who will perform the procedure if the resident

needs assistance;

(d) In addition to Sections 87575(a) and 87590(d) the

licensee shall ensure that the resident is cared for in

accordance with the physician’s orders and that the

resident’s medical needs are met. ....

(emphasis added for purposes of citation to this text at pg.19,

n.23 of writ).

App. 47

UNITED STATES DISTRICT COURT NORTHERN

DISTRICT OF CALIFORNIA SAN FRANCISCO

DIVISION

Dist. Ct. C-00-3261 VRW

TOM JENSEN, individually and as an advocate for the

rights and interests of his mother Marguerite Jensen, a frail

elderly, institutionalized person,

Plaintiff,

SWEET HOME ONE CARE FACILITY, a business entity;

Minerva Mostrales; Soledad Almocera; California Health and

Welfare Agency (currently known as the California Health

and Human Services Agency); California Department of

Social Services, Community Care Licensing Dyiv., public

entities; Elaine Arrington; Anita Gopaul; Martha Lopez;

Kaiser Permanente Medical Offices — Milpitas (a.k.a. Kaiser

Permanente Medical Group, Inc., Kaiser Foundation Health

Plan, Kaiser Foundation Hospitals) business entities; Bill Jue

MD; and Does 1-10,

Defendants.

Second Amended Complaint for Damages and for

Declaratory Relief for Violation of Civil, Constitutional and

Statutory Rights

(filed Aug. 15, 2003)

I. JURISDICTION

This 1s a civil action seeking declaratory relief and

damages for the deprivation under the color of law and

custom of the State of California of rights secured by the

Constitution of the United States, and for denial and

conspiracy to deny federal constitutional and statutory

rights, and state statutory rights. Jurisdiction is invoked

pursuant to 28 U.S.C. §§ 1331, 1343, 1367, 2201, 2202; 42

App. 48

U.S.C. §§ 1983, & 2000d-7 and the Constitution of the

United States, and more particularly the First and Fourteenth

Amendments thereof. Venue is proper for this judicial

district pursuant to 28 U.S.C. § 1391(b).

if, INTRADISTRICT ASSIGNMENT

The Oakland Division of the District Court 1s proper

for the trial of this action as the majority of the facts occurred

within the County of Alameda. The plaintiff is informed and

believes that most of the witnesses to these facts and the

partics involved in this action are residents of Alameda and

neighboring counties.

Hi. PARTIES

Plaintiff

|. The plaintiff, Tom Jensen, has a residence of

record of 3090 Wayside Terrace NE, Salem, Oregon, but for

the majority of the last two years lived in his motor home in

Alameda County. The plaintiff's mother, Marguerite Jensen,

now deceased, was ninety-two years old, had memory

impairment and asthma and was an elder within the meaning

of Califomia Welfare and Institutions Code § 15610.27.

Defendants

ie Defendant SWEET HOME ONE CARE

FACILITY is, on information and belief, a business

partnership licensed by the State of California as a

Residential Care Facility for the Elderly, and is located at

3019 Paine Court, Fremont, California. At all relevant times

alleged herein the plaintiff's mother, Marguerite Jensen was a

resident of said facility.

3. Defendants MINERVA MOSTRALES, and

SOLEDAD ALMOCERA are, on information and belief,

residents of Alameda or neighboring counties, and were at all

relevant times alleged herein acting as the agents, operators,

and the business partners of the business entity SWEET

HOME ONE CARE FACILITY.

App. 49

4. Defendant CALIFORNIA HEALTH AND

WELFARE AGENCY is an agency of the state of California.

Defendant CALIFORNIA DEPARTMENT OF SOCIAL

SERVICES, COMMUNITY CARE LICENSING DIVISION

is a division of said agency responsible for licensing and

inspecting Residential Care facilities for the Elderly, and for

receiving and investigating complaints of neglect and abuse

of residents. The California Health and Welfare Agency is

currently known as the California Health and Human

Services Agency. Plaintiff also sues the agency under its

new name.

5. Defendants ELAINE ARRINGTON and ANITA

GOPAUL are, on information and belief, residents of

Alameda or neighboring counties, and were at all times

alleged herein the agents and employees of defendant

CALIFORNIA DEPARTMENT OF SOCIAL SERVICES,

COMMUNITY CARE LICENSING DIVISION, and in

doing the things alleged herein were acting in the course and

scope of said agency and employment. Said defendants are

sued in both their individual and official capacities.

6. Defendant MARTHA LOPEZ is, on information

and belief, a resident of the State of California, and at all

relevant times alleged herein was the Deputy Director of the

defendant CALIFORNIA DEPARTMENT OF SOCIAL

SERVICES, COMMUNITY CARE LICENSING

DIVISION, and in doing the things alleged herein was acting

in the course and scope of said agency and employment.

Said defendant is sued in both her individual and official

capacities.

7. Defendant KAISER PERMANENTE MEDICAL

OFFICES - MILPITAS is, on information and belief, a

business entity, form unknown, located at 770 East Calaveras

Boulevard, Milpitas, California.

8. De

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