(PC) Bradway v. Rao

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 GABRIEL JOHN BRADWAY, No. 2:20-cv-00436 JAM KJN P 12 Plaintiff, ORDER AND 13 v. FINDINGS & RECOMMENDATIONS 14 YASHODARA RAO, 15 Defendant. [16] 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with a civil 19 rights action pursuant to 42 U.S.C. § 1983 . He alleges that defendant, Dr. Yashodara Rao, 20 violated plaintiff’s Eighth and Fourteenth Amendment rights and breached an implied contract by 21 authorizing Dr. Karla Solis to allow plaintiff’s single cell status to expire and by failing to 22 intervene to preserve his single cell status. Pending before this Court are defendant’s summary 23 judgment motion and two requests for judicial notice in support of its motion for summary 24 judgment. (ECF Nos. 70 & 77-1.) Plaintiff also filed three motions: (1) an objection to one of 25 defendant’s requests for judicial notice (ECF No. 79); (2) a second statement of disputed facts 26 (ECF No. 78); and (3) a request for judicial notice (ECF No. 82.). For the reasons stated below, 27 this court recommends granting summary judgment in favor of defendant. The court also orders 28 the following: (1) defendant’s request for judicial notice (ECF No. 70-3) is denied; 1 (2) defendant’s request for judicial notice (ECF No. 77-1) is granted; (3) plaintiff’s second 2 statement of disputed facts (ECF No. 78) is stricken; (4) plaintiff’s objection to defendant’s 3 request for judicial notice (ECF No. 79) is stricken; and (5) plaintiff’s request for judicial notice 4 (ECF No. 82) is denied. 5 II. Background 6 Plaintiff filed a complaint under 42 U.S.C. § 1983 and moved for a temporary restraining 7 order. (ECF Nos. 1 & 3.) This Court denied plaintiff’s motion for a restraining order and 8 dismissed his complaint with leave to file an amended complaint. (ECF Nos. 13 & 27.) 9 On June 12, 2020, plaintiff filed the first amended complaint. (ECF No. 26.) The 10 operative complaint is based solely on a motion for a temporary restraining order to “preserve 11 single-cell treatment” until a case management hearing in case no. STK-cv-LBC-2019-0014936 12 pending before the San Joaquin County Superior Court. (Id. at 1-2.) Plaintiff alleges that Dr. Rao 13 allowed Dr. Solis to omit documentation of her role in exacerbating plaintiff’s medical issues and 14 to monitor his Interdisciplinary Treatment Team (“IDTT”), which permitted his single cell 15 authorization to expire in violation of his Eighth and Fourteenth Amendment rights. (Id. at 3-4.) 16 Plaintiff also claims that Dr. Rao was negligent for rejecting his prison grievances and failing to 17 intervene to preserve his single cell status. (Id.) Moving him from a single to a double 18 occupancy cell, plaintiff contends, also constituted breach of an implied contract issued by Judge 19 Thelton E. Henderson. (Id.) Plaintiff attached an affidavit to his first amended complaint. (Id. at 20 5-6.) 21 Defendant answered the complaint, denying that plaintiff is entitled to single cell status 22 beyond the recommendation of his medical treatment team and classification committee 23 determination. (ECF No. 38 at 2.) 24 On October 14, 2021, defendant moved for summary judgment pursuant to Federal Rule 25 of Civil Procedure 56.1 (ECF No. 70.) Defendant raises the following arguments in its motion: [26] 1 Plaintiff argues that defendant’s summary judgment motion is untimely because it was filed 27 more than 30 days after the close of discovery. (ECF No. 75 at 1-2.) He is mistaken. The Court ordered that all pretrial orders, except motions to compel discovery, shall be filed on or before 28 October 14, 2021. (ECF No. 61 at 5.) Defendant compiled with this deadline by filing a motion 1 (1) defendant was not deliberately indifferent to plaintiff’s serious medical needs; (2) causation is 2 lacking; (3) the court dismissed plaintiff’s Fourteenth Amendment due process claim; (4) plaintiff 3 cannot establish a violation of the Americans with Disabilities Act or the Rehabilitation Act; (5) 4 there is no evidence of an equal protection violation; (6) there is no evidence of a breach of 5 contract; (7) plaintiff failed to comply with California Government Claims Act; and alternatively, 6 (8) defendant did not violate any clearly established constitutional or statutory right of which a 7 reasonable prison official would have known, and thus she is entitled to qualified immunity. (Id.; 8 see also ECF No. 77.) Attached to defendant’s motion is a request for judicial notice. (ECF No. 9 70-3.) By contemporaneous notice provided on October 14, 2021, defendant advised plaintiff of 10 the requirements for opposing a motion brought pursuant to Federal Rule of Civil Procedure 56. 11 (ECF No. 70-4.) 12 Plaintiff filed an opposition to defendant’s motion for summary judgment on November 5, 13 2021. (ECF No. 75.) Defendant filed a reply to the opposition and a second request for judicial 14 notice. (ECF Nos. 77 & 77-1.) Plaintiff opposed defendant’s second request for judicial notice. 15 (ECF No. 79.) Defendant objected to plaintiff’s opposition, noting that “this objection includes 16 additional arguments concerning the merits of Plaintiff’s claims which could have been addressed 17 in his opposition, and also asserts an unsupported and baseless and contradictory claim that the 18 Office of the Attorney General was involved in transferring Plaintiff to a different institution.” 19 (ECF No. 81 at 1.) Defendant requests that this court strike the pleading as an unauthorized sur20 reply or, alternatively, to reject plaintiff’s arguments because they do not preclude granting 21 summary judgment in defendant’s favor. 22 On November 29, 2021, plaintiff filed an additional statement of disputed facts, which 23 was untimely. (ECF No. 78.) Defendant objected to the filing of a second opposition as an 24 unauthorized sur-reply and requests that this Court strike the pleading. (ECF No. 80.) In the 25 alternative, defendant argues that the sur-reply fails to present grounds to deny the motion for 26 summary judgment. (Id.) [27] 28 for summary judgment on that date. (ECF No. 70.) 1 Plaintiff filed a request for judicial notice on December 17, 2021. (ECF No. 82.) In that 2 motion, plaintiff requests that this Court take judicial notice that defendant approved “unlicensed 3 post-doc intern, Ms. Karla Solis’ ‘deliberate indifference’ in violation of Penal Code § 5068.5 not 4 intended for benefit of government agency, rather for benefit of inmate.” (Id. at 3.) 5 III. Legal Standards for Summary Judgment 6 “The court shall grant summary judgment if the movant shows that there is no genuine 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 8 Civ. P. 56(a).2 Under summary judgment practice, the moving party 9 always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the 10 pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes 11 demonstrate the absence of a genuine issue of material fact. 12 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 13 56(c)). “Where the non-moving party bears the burden of proof at trial, the moving party need 14 only prove that there is an absence of evidence to support the non-moving party’s case.” In re 15 Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 16 325); see also Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendment (recognizing that 17 “a party who does not have the trial burden of production may rely on a showing that a party who 18 does have the trial burden cannot produce admissible evidence to carry its burden as to the fact”). 19 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 20 motion, against a party who fails to make a showing sufficient to establish the existence of an 21 element essential to that party’s case, and on which that party will bear the burden of proof at 22 trial.” Celotex Corp., 477 U.S. at 322 . “[A] complete failure of proof concerning an essential 23 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323 . 24 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 25 the opposing party to establish that a genuine issue as to any material fact actually exists. See [26] 27 2 Federal Rule of Civil Procedure 56 was revised and rearranged effective December 10, 2010. However, as stated in the Advisory Committee Notes to the 2010 Amendments to Rule 56, “[t]he 28 standard for granting summary judgment remains unchanged.” 1 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). In attempting to 2 establish the existence of a factual dispute, the opposing party may not rely upon the allegations 3 or denials of its pleadings and is required to tender evidence of specific facts in the form of 4 affidavits or admissible discovery to support its contention that a dispute exists. See Fed. R. Civ. 5 P. 56 (c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 6 contention is material, i.e., a fact that might affect the outcome of the suit under the governing 7 law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. 8 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 9 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 10 party, see Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 11 In the endeavor to establish the existence of a factual dispute, the opposing party need not 12 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 13 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 14 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Arizona v. Cities 15 Serv. Co., 391 U.S. 253, 289 (1968)). “The very mission of the summary judgment procedure is 16 to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 17 trial.” Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments; see also Matsushita, [18] 475 U.S. at 587 . 19 In resolving a summary judgment motion, the court examines facts cited by the parties 20 from the record including “depositions, documents, electronically stored information, affidavits or 21 declarations, stipulations (including those made for the purposes of the motion only), admissions, 22 interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c). The evidence of the opposing 23 party is to be believed. See Anderson, 477 U.S. at 255 . The court must draw all reasonable 24 inferences from the underlying facts in favor of the nonmoving party. See Matsushita, 475 U.S. 25 at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 26 obligation to produce a factual predicate from which the inference may be drawn. See Richards 27 v. Neilsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 , 902 28 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 1 simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. 2 at 586. “Where the record taken as a whole could not lead a rational trier of fact to find for the 3 non-moving party, there is no ‘genuine issue for trial.’” Id. (citation omitted). 4 On October 14, 2021, defendant provided plaintiff with contemporaneous notice of the 5 requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil 6 Procedure. (ECF No. 70-4.) See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc). 7 IV. Request for Judicial Notice 8 Both parties ask this Court to take judicial notice of certain facts. Federal Rule of 9 Evidence 201(b) provides that a federal court may take judicial notice of an adjudicative fact “that 10 is not subject to reasonable dispute” if the fact “can be accurately and readily determined from 11 sources whose accuracy cannot reasonably be questioned.” 12 In her first request, defendant asks this Court to take judicial notice of a complaint filed by 13 plaintiff in Bradway v. Rao, et al., STK-CV-LBC-2019-0014936, in San Joaquin County Superior 14 Court. (ECF No. 70-3.) Defendant states that this complaint was attached as an exhibit to the 15 Notice of Removal filed in Bradway v. Rao, No. 2:21-cv-0059 (E.D. Cal.) on January 12, 2021. 16 (Id.) While a court may take judicial notice of undisputed matters of public record, it may not 17 take judicial notice of a fact that is subject to reasonable dispute. Fed. R. Evid. 201(b); Lee v. 18 City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). For example, “when a court takes 19 judicial notice of another court’s opinion, it may do so not for the truth of the facts recited therein, 20 but for the existence of the opinion, which is not subject to reasonable dispute over its 21 authenticity.” Lee, 250 F.3d at 306 (internal quotations omitted). Accordingly, this court denies 22 defendant’s request to take judicial notice of the truth of the facts contained within that record. 23 In her second request, defendant asks this Court to take judicial notice of an order 24 dismissing the action in Bradway v. Rao, No. 2:21-cv-00059 (E.D. Cal.) on March 22, 2021, and 25 the copy of the court docket in that matter. (ECF No. 77-1.) Because these documents can be 26 “accurately and readily determined from sources whose accuracy cannot reasonably be 27 questioned,” this Court grants the defendant’s request. 28 Lastly, plaintiff asked this Court to take judicial notice of Exhibit A - Defendant’s 1 Responses to Plaintiff’s Amended First Set of Requests for Admissions. (ECF No. 82.) Courts 2 may take judicial notice of facts either stipulated to by the parties or admitted in response to a 3 request for an admission. See S.E.C. v. American Cap. Invs., Inc., 98 F.3d 1133 , 1140 n.7 (9th 4 Cir. 1996); see also 21B Charles A. Wright & Arthur R. Miller, Federal Practice & 5 Procedure § 5102.2. But that is not what plaintiff seeks here. In response to the admission 6 requests, defendant objected to and denied most of the requests. (ECF No. 82 at Ex. A.) 7 Although defendant admitted some of the requests, those concern the authenticity of documents 8 that are not attached to plaintiff’s request for judicial notice. (Id.) By omitting these documents, 9 plaintiff has failed to provide the Court with the necessary information for its request. Fed. R. 10 Evid. 201(c). Furthermore, in plaintiff’s request for judicial notice, he inaccurately characterizes 11 defendant’s responses as “clearly establish[ing] defendant’s approval of unlicensed post-doc 12 intern, Ms. Karla Solis’ ‘deliberate indifference’ in violation of Penal Code § 5068.5.” (Id. at 3.) 13 Because the discovery responses and plaintiff’s characterization of them do not constitute facts 14 that are “not subject to reasonable dispute,” this Court denies plaintiff’s request.3 See Garber v. 15 Heilman, No. CV 08-3585-DDP (RNB), 2009 WL 409957 , at *1, 7-8 (C.D. Cal. Feb. 18, 2009). 16 V. Undisputed Facts4 17 1. During the relevant time period, Gabriel Bradway was a state prisoner incarcerated at 18 California Health Care Facility, Stockton (“CHCF”), within the custody of the Department [19] 20 3 This Court also strikes plaintiff’s opposition to defendant’s second request for judicial notice, which is an unauthorized sur-reply that relies upon the same discovery responses to oppose 21 defendant’s summary judgment motion. (ECF No. 79 at 13.) [22] 4 For purposes of summary judgment, the Court finds these facts are undisputed following its 23 review of ECF document numbers 40-1, 70-2, 75, and 78 and documents referenced therein. Where plaintiff has failed to properly address defendant’s assertion of fact as required, the 24 undersigned considers the fact undisputed. See Fed. R. Civ. Pro. 56(e)(2). Plaintiff cannot rely on allegations he raised in a second amended complaint filed in a different case that was [25] subsequently dismissed. (See ECF No. 75.) Furthermore, this Court refuses to consider defendant’s undisputed facts numbered 17, 29, 33, and 34 in its filing because they are either [26] unsupported by sufficient evidence, conclusory, argumentative, or share a combination of these 27 attributes. (ECF No. 70-2.) This Court also strikes plaintiff’s second statement of disputed facts (ECF No. 78) because it is an unauthorized sur-reply that contains conclusory and argumentative 28 statements that plaintiff incorrectly characterizes as supported facts. 1 of Corrections and Rehabilitation (“CDCR”). (ECF No. 26 at 2, 5-6.) 2 2. During this time frame, defendant Dr. Yashodara Rao was employed as Chief of Mental 3 Health at CHCF. (ECF No. 70-2 at Ex. E at ¶ 2.) 4 3. In her capacity as Chief of Mental Health, Dr. Rao is responsible for the overall 5 supervision of mental health services to the inmate-patients at CHCF (excluding the 6 Psychiatric Inpatient Program). (Id.; ECF No. 75 at 8.) 7 4. During the relevant time frame, Bradway was enrolled in the Enhanced Outpatient 8 Program (“EOP”) level of care. (ECF No. 40-1 at ¶ 7.) 9 5. The EOP provides an intensive level of outpatient mental health care in the mental health 10 services delivery system, for illnesses characterized by increased delusional thinking, 11 hallucinatory experiences, marked changes in affect, and vegetative signs with definitive 12 impairment of reality testing and/or judgment, and/or inability to function in general 13 population. (Id. at ¶ 3; ECF No. 75 at 8.) 14 6. The inmate-patient’s IDTT is responsible for developing and implementing treatment 15 plans. The main members of the IDTT include the primary clinician, assigned 16 psychiatrist, correctional counselor, and inmate-patient. (ECF No. 40-1 at ¶¶ 3, 13.) 17 7. All treatment decisions are evaluated and updated on an ongoing basis by the current 18 IDTT members while taking into the account the totality of the case, including but not 19 limited to, current functioning as determined by impact of reported symptoms on ability to 20 function in his current environment. The IDTT for EOP inmate-patients is required to 21 meet at least every ninety days to identify treatment needs and assess and update treatment 22 plans. (Id. at ¶¶ 6-7, 13.) 23 8. Dr. Rao is not, and has never been, a member of Bradway’s IDTT, nor has she ever 24 attended his IDTT meetings. (ECF No. 40-1 at ¶ 6; ECF No. 75 at 16.) 25 9. Dr. Rao never directed Dr. Solis to discharge Bradway from the EOP. This decision is 26 made by the IDTT. (ECF No. 40-1 at ¶ 4; ECF No. 70-2 at Ex. A at 11, 18-21, 23.) 27 10. Dr. Rao did not prevent Dr. Solis from documenting Bradway’s mental health case 28 factors. (ECF No. 40-1 at ¶ 4; ECF No. 70-2 at Ex. A at 21, 23.) 1 11. Bradway does not know if Dr. Rao ever discussed his case with Dr. Solis. (ECF No. 70-2 2 at Ex. A at 23; ECF No. 75 at 16.) 3 12. Bradway does not know if Dr. Rao ever instructed or authorized Dr. Solis not to document 4 his mental health issues. (ECF No. 70-2 at Ex. A at 21.) 5 13. Bradway does not know if Dr. Rao ever had direct supervision of Dr. Solis’s work on his 6 case. (Id. at 23.) 7 14. Because Dr. Rao was not part of Bradway’s IDTT team, she was unaware of any conduct 8 by Dr. Solis which may have triggered symptoms of anxiety, obsessive-compulsive 9 disorder, obsessive-compulsory personality disorder, or depression, or caused a head 10 injury, left food injury, self-mutilation, high blood pressure, or frequent medication 11 adjustments to alleviate anxiety symptoms in inmate-patient Bradway. (ECF No. 70-2 at 12 Ex. E at ¶ 4.) 13 15. Dr. Rao did not give Dr. Solis “full jurisdiction” over Bradway’s IDTT for purposes of 14 reviewing his single cell status on June 28, 2018, or at any other time, or for any other 15 purpose. (Id. at ¶ 5.) 16 16. Dr. Rao was not present at Bradway’s Unit Classification Committee (“UCC”) on May 7, 17 2019, and did not approve any decisions reached at that time. (Id. at ¶ 6.) 18 17. Dr. Rao was unaware of any contract entered into by Bradway concerning his single cell 19 status. (Id. at ¶ 7.) 20 18. Custody decisions, such as housing and single cell status, are under the authority of the 21 Warden, and as such, not under Dr. Rao’s authority. Mental health professionals can 22 make decisions related to mental health treatment and housing recommendations based on 23 mental health factors. (ECF No. 40-1 at ¶ 5; ECF No. 75 at 18.) 24 19. The decision for recommendation of single cell status, based on mental health, is made by 25 the IDTT. The final decision for approval or removal of a single cell status is a custody 26 function and lies under the authority of the Warden or designee. (ECF No. 40-1 at ¶ 8; 27 ECF No. 75 at 18.) 28 20. Clinical single cell status should generally not be granted beyond ninety days, the timeline 1 for IDTT meetings, but it can be renewed if the clinical intervention continues to be 2 necessary and can be substantiated by the treatment team as an effective intervention. 3 (ECF No. 40-1 at ¶ 15; ECF No. 75 at 18.) 4 21. Dr. Rao never denied single cell housing status for Bradway and never approved a 5 decision by custody stuff to revoke single cell status for him. (ECF No. 70-2 at 37-38.) 6 22. Bradway had single cell status from the time he arrived at CHCF in April 2017 until May 7 2021. (ECF No. 70-2 at Ex. A at 9, 12-13; ECF No. 40-1 at ¶ 8; ECF No. 75 at 39.) 8 23. Records indicate that in August 2019, the IDTT and program supervisor indicated that 9 there are no mental health factors that would warrant a need for a recommendation for 10 single cell status. (ECF No. 40-1 at ¶ 8.) 11 24. A mental health chronology, dated August 8, 2019, signed by Dr. Abbott, stated that 12 Bradway’s treatment team does not recommend an extension of single cell status. (ECF 13 No. 70-2 at Ex. A at 15-17; id. at Ex. B.) 14 25. Bradway disagreed with the IDTT’s evaluation of his need for single cell status. (ECF 15 No. 70-2 at Ex. A at 22.) 16 26. Custody staff approved him for double cell status in May 2021, and Bradway admits there 17 “was no intervention” on Dr. Rao’s part to prompt the changes. (ECF No. 70-2 at Ex. A 18 at 9, 11, 18-20; ECF No. 75 at 41.) 19 27. Bradway testified that the decision to approve him for double cell status was “already 20 predetermined by the UCC custody staff,” namely his correctional counselor Diaz. (ECF 21 No. 70-2 at Ex. A at 14; ECF No. 75 at 41.) 22 28. Records indicate that Bradway has been monitored on an ongoing basis and there has been 23 no evidence of exacerbation of symptoms inflicted by mental health staff. An 24 exacerbation of symptoms would have resulted in Bradway being referred to a higher 25 level of mental health care. (ECF No. 40-1 at ¶¶ 5, 7, 9, 12.) 26 29. At CHCF, the EOP houses inmate-patients in double cell housing, although an inmate27 patient can be recommended for short-term single cell status based on mental health 28 factors. (Id. at ¶ 10.) 1 30. Bradway’s level of care and housing status for mental health reasons is reevaluated 2 regularly and is subject to change. (Id. at ¶ 12.) 3 VI. Discussion 4 Defendant moves for summary judgment on all of plaintiff’s claims. This Court addresses 5 each argument in turn below. 6 A. Plaintiff’s Eighth Amendment Claim 7 Bradway alleges that Dr. Rao was deliberately indifferent to his serious mental health 8 needs by allowing an unlicensed clinician, Dr. Karla Solis, to trigger and exacerbate his mental 9 health symptoms and authorizing her to omit documentations of his mental health issues 10 precluding double celling. He also claims that Dr. Rao failed to intervene to protect his single 11 cell status. Defendant argues that she was not deliberately indifferent to Bradway’s serious 12 medical needs. 13 The treatment a prisoner receives while incarcerated and the conditions of his confinement 14 are subject to the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993); see also 15 DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 198-200 (1989). A prison 16 official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious 17 medical needs of an inmate. See Farmer v. Brennan, 511 U.S. 825, 828 (1994); Wilson v. Seiter, [18] 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976); Doty v. County of Lassen, [19] 37 F.3d 540, 546 (9th Cir. 1994). To state a claim, the prisoner must show that (1) objectively, 20 the prison official’s deprivation was sufficiently serious, and (2) subjectively, the prison official 21 acted with sufficiently culpable state of mind. See Wilson, 502 U.S. at 298-99. The Eighth 22 Amendment’s deliberate indifference standard is a “high legal standard.” See Toguchi v. Chung, [23] 391 F.3d 1051, 1060 (9th Cir. 2004). 24 To meet the objective standard, the plaintiff must show that the medical need is serious. 25 A medical need is serious “if the failure to treat the prisoner’s condition could result in further 26 significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 27 F.2d 1050 , 1059 (9th Cir.1991) (citation omitted), overruled on other grounds by WMX Techs., 28 Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). If a prisoner establishes the existence of a 1 serious medical need, he must also meet the subjective standard, showing that prison officials 2 responded to the serious medical need with deliberate indifference. Farmer, 511 U.S. at 834 . In 3 general, deliberate indifference may be shown when prison officials deny, delay, or intentionally 4 interfere with medical treatment, or in the way prison officials provide medical care. Hutchinson 5 v. United States, 838 F.2d 390, 393-94 (9th Cir.1988). “A showing of medical malpractice or 6 negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” 7 Toguchi, 391 F.3d at 1060 . 8 Here, plaintiff has failed to present evidence that defendant’s conduct denied, delayed, or 9 intentionally interfered with his medical treatment. Viewed in the light most favorable to 10 plaintiff, the record shows that Dr. Rao was not involved in the decision to transition Bradway 11 from a single to double occupancy cell. The IDTT is responsible for developing and 12 implementing an inmate-patient’s treatment plan and meeting at least every ninety days to 13 identify treatment needs and update treatment plans. Dr. Rao has never been a member of 14 Bradway’s IDTT, nor has she ever attended his IDTT meetings. Dr. Rao never directed Dr. Solis 15 to discharge Bradway from the EOP, never prevented her from documenting Bradway’s mental 16 health case factors, and never gave her “full jurisdiction” over Bradway’s IDTT for any purpose. 17 Dr. Rao was not present at Bradway’s UCC on May 7, 2019, and did not approve any decisions 18 reached at that meeting. Although mental health professionals can make decisions related to 19 mental health treatment and make housing recommendations based on mental health factors, Dr. 20 Rao does not have authority to make housing decisions. Regardless of whether IDTT 21 recommends single cell status based on mental health factors, the final decision is a custody 22 function that lies under the authority of the warden or designee. Clinical single cell status is 23 generally not granted beyond ninety days and is subject to renewal if IDTT deems it necessary. 24 Bradway had single cell status from the time he arrived at CHCF in April 2017 until May 2021. 25 During this timeframe, however, the records indicate that in August 2019, the IDTT and program 26 supervisor indicated that there are no mental health factors that would warrant recommending 27 continued single cell status for Bradway. Bradway disagreed with IDTT’s evaluation, but 28 custody staff approved him for double cell status in May 2021. Dr. Rao never denied single cell 1 housing status for Bradway and did not approve the custody staff’s decision to revoke single cell 2 status for him. Bradway admits that this decision was “predetermined by the UCC custody staff.” 3 (ECF No. 70-2 at Ex. A at 14; ECF No. 75 at 41.) 4 Although Bradway disagreed with the prison officials, a mere difference in opinion 5 concerning the appropriate medical treatment cannot be the basis of an Eighth Amendment claim. 6 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds 7 by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). When there are two courses of 8 medical treatments, the plaintiff “must show that the treatment the doctors chose was medically 9 unacceptable under the circumstances” and that the doctors “chose this course in conscious 10 disregard of an excessive risk to plaintiff’s health.” Id. Here, plaintiff has not made the requisite 11 showing. The records show that in August 2019, IDTT indicated that there are no mental health 12 factors that would warrant recommending single cell status for Bradway. A mental health 13 chronology, dated August 8, 2019, signed by Dr. Abbott, stated that Bradway’s treatment team 14 does not recommend an extension of single cell status. Plaintiff has failed to present any 15 evidence that the decision to transition him from a single to double occupancy cell was medically 16 unacceptable under the circumstances or that his treatment team made that decision out of 17 conscious disregard for an excessive risk to his health. 18 To the extent that Bradway is suing Dr. Rao based on her failure to intervene or her 19 supervisory role as Chief Mental Health Officer at CHCF, this theory also cannot survive 20 summary judgment. “Traditionally, the requirements for relief under section 1983 have been 21 articulated as: (1) a violation of rights protected by the Constitution or created by federal statute, 22 (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” 23 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991); see also Peace v. Kerlikowske, 237 F. 24 App’x 157, 159 (9th Cir. 2007). For the first element, liability under 28 U.S.C. § 1983 arises 25 only if plaintiff can show that defendant personally participated in the alleged violations. See 26 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 27 1989). A supervisor, like Dr. Rao, can only be held “liable for constitutional violations of [her] 28 subordinates if the supervisor participated in or directed the violations, or knew of the violations 1 and failed to act to prevent them. There is no respondeat superior liability under section 1983.” 2 Taylor, 880 F.2d at 1045. For the second element, a plaintiff can prove that a supervisory official 3 caused the constitutional violation if the official “sets in motion a ‘series of acts by others which 4 the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” 5 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175 , 1183 (9th Cir. 2007); see Vazquez 6 v. County of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020). 7 Viewing the record in the light most favorable to plaintiff, Bradway has made no showing 8 that Dr. Rao directed, participated in, or had knowledge of the alleged misconduct of Dr. Solis, or 9 that she failed to act with deliberate indifference towards his medical needs. A plaintiff cannot 10 defeat a motion for summary judgment by relying solely on conclusions unsupported by the facts. 11 See King v. Idaho Funeral Serv. Ass’n, 862 F.2d 744, 746 (9th Cir. 1988). To the contrary, 12 defendant has presented evidence that Dr. Rao was not involved in IDTT’s recommendation for a 13 double occupancy cell and did not have the authority to make such housing decisions. (See ECF 14 No. 75 at 36-37 (May 18, 2021, UCC approval of double cell housing for Bradway).) 15 Additionally, there is no evidence that Dr. Rao caused Bradway’s alleged injuries from being 16 approved for a double cell. First, Dr. Rao did not make this decision; rather, the UCC cleared 17 Bradway for a double cell in May 2021. (ECF No. 75 at 36-37.) Second, Dr. Rao has no 18 authority to make such housing decisions. The UCC based its decision in part on the August 8, 19 2019 note by Dr. Abbott that IDTT finds insufficient justification from a mental health 20 perspective to recommend further renewal of Bradway’s single cell status. (Id.) Lastly, Dr. Rao 21 is not part of Bradway’s IDTT team and did not participate in any of its meetings or decisions 22 regarding Bradway’s single cell status. 23 This Court concludes that there is no genuine issue of material fact raised regarding 24 defendant’s subjective knowledge or conscious disregard of a substantial risk of serious injury to 25 plaintiff and recommends granting summary judgment in favor of defendant on this claim.5 [26] 5 To the extent plaintiff argues that requiring inmates to share a cell is cruel and unusual 27 punishment, this claim also fails. In Rhodes v. Chapman, the Supreme Court held that double celling did not constitute cruel and unusual punishment. Rhodes v. Chapman, 452 U.S. 337 , 34728 48 (1981) (“The double celling made necessary by the unanticipated increase in prison population 1 B. Plaintiff’s Americans with Disabilities Act or Rehabilitation Act Claims 2 Plaintiff alleges that Dr. Rao violated his rights under the Americans with Disabilities Act 3 and Rehabilitation Act by denying Bradway’s 602 HC grievance regarding EOP supervisor Dr. 4 Moore’s statement that “you are right, lack of bed space is exactly why your single-cell treatment 5 is denied, take us to court.” (ECF No. 26 at 4.) Defendant argues that “Dr. Rao would not be 6 liable for failing to intervene concerning this grievance because she lacked authority to order 7 single-cell housing.” (ECF No. 70-1 at 18; see also ECF No. 77 at 13-14.) 8 Defendant correctly observes that the Court did not construe plaintiff’s pleading as raising 9 a cognizable Americans with Disabilities Act or Rehabilitation Act claim. However, assuming 10 that plaintiff attempted to do so, plaintiff must demonstrate that he “(1) is a handicapped person; 11 (2) that he is otherwise qualified; and that the [defendant’s] actions either (3) excluded his 12 participation in or denied him the benefits of a service, program, or activity; or (4) otherwise 13 subjected him to discrimination on the basis of his physical handicap.” Duffy v. Riveland, 98 14 F.3d 447, 455 (9th Cir. 1996); see also Reyes v. Ryan, 424 F. App’x 659 (9th Cir. 2011); Duvall 15 v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (noting that Title II of the Americans 16 with Disabilities Act was “expressly modeled after § 504 of the Rehabilitation Act”). Here, after 17 reviewing the evidence in the light most favorable to Bradway, this Court concludes that plaintiff 18 has failed to state a prima facie case supported by a genuine issue of material fact. As stated 19 above, there is no evidence that Dr. Rao’s actions or omissions caused Bradway to be transitioned 20 from a single to double occupancy cell or otherwise subjected him to discrimination based on his 21 mental health or handicap. To the contrary, as part of EOP, Bradway was monitored on an 22 ongoing basis. His IDTT met at least every ninety days to assess his needs and to update his 23 treatment plan. The EOP houses inmate-patients in double cell housing, but they can recommend 24 inmate-patients for short-term single cell status based on mental health factors. Clinical single 25 cell status is generally not granted beyond ninety days, but the status can be renewed if the [26] 27 did not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase violence among inmates or create other conditions intolerable for prison confinement.”) Bradway 28 has failed to present any facts to succeed on a similar argument. 1 clinical intervention continues to be necessary and can be substantiated by the treatment team as 2 an effective intervention. Bradway had single cell status from the time he arrived at CHCF in 3 April 2017 until May 2021. In May 2021, UCC cleared him for a double occupancy cell because 4 IDTT found no justification from a mental health perspective to recommend renewing his single 5 cell status. Plaintiff has failed to offer any evidence to support his claim that his transition into a 6 double occupancy cell amounts to a violation under the Americans with Disabilities Act or 7 Rehabilitation Act. This Court recommends granting summary judgment in favor of defendant on 8 these claims. As a result, this Court need not address defendant’s additional argument as to 9 whether plaintiff can seek damages or injunctive relief under the Americans with Disabilities Act 10 or Rehabilitation Act against a defendant in her individual capacity. 11 C. Plaintiff’s Fourteenth Amendment Equal Protection Claim 12 Plaintiff argues that Dr. Rao violated his Fourteenth Amendment rights by approving him 13 for a double occupancy cell, and conversely, allowing IDTT staff to not renew his single cell 14 status. (ECF No. 26 at 3-4.) Defendant contends there is no evidence that Dr. Rao violated his 15 right to equal protection. (ECF No. 70-1 at 19; ECF No. 77 at 14.) 16 The medical care system violates equal protection only if it has no rational relationship to 17 a legitimate state interest. See Dandridge v. Williams, 397 U.S. 471, 485 (1970); Roberts v. 18 Spalding, 783 F.2d 867, 872 (9th Cir. 1986). California’s Code of Regulations § 3269 states that 19 Inmates shall accept Inmate Housing Assignments (IHAs) as directed by staff. It is the expectation that all inmates double cell, 20 whether being housed in a Reception Center, General Population (GP), an Administrative Segregation Unit (ASU), a Security 21 Housing Unit (SHU), or specialty housing unit. If staff determines an inmate is suitable for double celling, based on the criteria as set 22 forth in this section, the inmate shall accept the housing assignment or be subject to disciplinary action for refusing. IHAs shall be made 23 on the basis of available documentation and individual case factors. Inmates are not entitled to single cell assignment, housing location 24 of choice, or to a cellmate of their choice. [25] Cal. Code Regs. tit. 15, § 3269 . The regulation provides that “[i]n cases where single cell status 26 is recommended by clinical staff due to mental health or medical concerns, a classification 27 committee shall make the final determination of an inmate’s cell assignment.” Id. at § 3269(f). 28 “Single cell status based upon clinical recommendation is usually a temporary short-term measure 1 and must be periodically reviewed, minimally at an inmate’s annual review or more frequently at 2 the inmate’s/clinician’s request.” Id. Here, this system of periodically reviewing an inmate’s 3 clinical single cell status determination is rationally related to the government’s legitimate interest 4 in providing inmates with medically necessary services. Bradway provides no reason or facts to 5 support his conclusion that the system is constitutionally deficient. 6 Next plaintiff contends that defendant violated his Fourteenth Amendment rights by 7 “approving IDTT’s discrimination” by not identifying any mental health factors that would 8 preclude Bradway from living in a double occupancy cell. (ECF No. 26 at 3-4.) To the extent 9 plaintiff is arguing that Dr. Rao treated him differently than similarly situated inmates, there is no 10 evidence in the record to support this claim. Accordingly, this Court recommends granting 11 summary judgment in favor of defendant on plaintiff’s equal protection claim. 12 D. Plaintiff’s Breach of Contract Claim 13 Plaintiff asserts that the orders issued by Judge Thelton Henderson in the Plata v. 14 Henderson action and “class action regulations” issued in the Armstrong Court Ordered Remedial 15 Plan created an implied contract, which defendant breached by allowing his single cell status to 16 expire. (ECF No. 26 at 4; ECF 75 at 43.) Defendant, on the other hand, contends that these 17 documents do not give rise to a breach of contract claim. (ECF No. 70-1 at 20.) 18 Under California law, a breach of contract includes the following elements: (1) the 19 contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and 20 (4) resulting damages to plaintiff. See Careau & Co. v. Security Pac. Bus. Credit, Inc., 222 Cal. 21 App. 3d 1371, 1388 (1990). “The essential elements of a contract are: parties capable of 22 contracting; the parties’ consent; a lawful object; and sufficient cause or consideration.” Lopez v. 23 Charles Schwab & Co., 118 Cal. App. 4th 1224, 1230 (2004) (citing Cal. Civ. Code § 1550 ). “An 24 essential element of any contract is the consent of the parties, or mutual assent.” Donovan v. 25 RRL Corp., 26 Cal. 4th 261, 270 (2001). 26 Here, neither Judge Henderson’s order nor the Armstrong Court Ordered Remedial Plan 27 constitute an implied contract between Bradway and Dr. Rao. In the former, the state conceded 28 that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and 1 stipulated to a remedial injunction. See Brown v. Plata, 563 U.S. 493, 507 (2011). The state 2 failed to comply with that injunction, and the district court appointed a receiver to oversee the 3 remedial efforts. Id. Believing that reducing overcrowding was the only way to remedy the 4 constitutional violations, the district court granted plaintiffs’ request to convene a three-judge 5 panel under the PLRA to order reductions in the prison population. Id. at 509 . The Supreme 6 Court affirmed the order of the three-judge court. Id. at 545 . In the latter, a certified class of 7 present and future California state prison inmates and parolees with various physical and learning 8 disabilities sued California state officers for injunctive relief. Armstrong v. Davis, 215 F.3d 1332 9 (9th Cir. 2000). The parties settled, and defendants stipulated they were not in compliance with 10 some statutes and developed a proposed plan to remedy those violations. Id. The resulting 11 outcomes in both cases were not contracts; Bradway, therefore, cannot seek redress from any 12 injuries caused by violations of these remedial plans by alleging a breach of contract claim in a 13 new, separate action. This Court recommends granting summary judgment in favor of defendant 14 on plaintiff’s breach of contract claim. 15 E. Plaintiff’s Government Claims Act Claim 16 To the extent that Plaintiff alleges a claim under California’s Government Claims Act (the 17 “Act”), this claim also does not survive summary judgment. The Act governs suits against a 18 public entity or public employee. See Moore v. Twomey, 120 Cal. App. 4th 910, 913-14 (2004). 19 Except as otherwise provided in the statute, “a public employee is liable for injury caused by his 20 act or omission to the same extent as a private person.” Cal. Gov. Code § 820 (a). To file a claim, 21 plaintiff must submit a filing fee and present the claims within six months of the incident date. [22] Id. at §§ 901, 905.2(c), 910, 910.2, & 911.2. Here, the record shows that Bradway failed to meet 23 these requirements. (ECF No. 75 at 50-51.) This Court, therefore, recommends granting 24 summary judgment in favor of defendant on this claim. 25 F. Defendant’s Qualified Immunity Affirmative Defense 26 In the alternative, defendant argues that she is entitled to qualified immunity. (ECF No. 27 70-1 at 21-22.) Plaintiff claims that qualified immunity does not protect defendant in this action. 28 (ECF No. 75 at 2-6.) This Court need not decide this issue because it recommends granting 1 | summary judgment in favor of defendant on all plaintiff's claims. 2 | VII. Conclusion 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Defendant’s request for judicial notice (ECF No. 70-3) is denied. 5 2. Defendant’s request for judicial notice (ECF No. 77-1) is granted. 6 3. Plaintiff's second statement of disputed facts (ECF No. 78) is stricken. 7 4. Plaintiff's objection to defendant’s request for judicial notice (ECF No. 79) is stricken. 8 5. Plaintiff's request for judicial notice (ECF No. 82) is denied. 9 Further, IT IS HEREBY RECOMMENDED that defendant’s motion for summary 10 || judgment (ECF No. 70) be granted. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 || objections shall be filed and served within fourteen days after service of the objections. The 17 || parties are advised that failure to file objections within the specified time may waive the right to 18 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: June 3, 2022 20 Aectl Aharon 21 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE [22] \TAA.brad0436.msj