Arellano v. Calderon

• Court: District Court, S.D. California
• Decided: March 18, 2024
• Docket: 3:22-cv-00441
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 22-CV-441 TWR (LR) CDCR #AH-1995, 12 ORDER GRANTING DEFENDANTS’ Arellano, 13 MOTION FOR SUMMARY vs. JUDGMENT 14

A. CALDERON; 15 (ECF No. 29) MORENO, 16 Defendants. 17 18 19 Presently before the Court is Defendants Calderon and Moreno’s Motion for 20 Summary Judgment. (See ECF No. 29, “Mot. for Summ. J.”). Plaintiff Raul Arellano, 21 currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, 22 California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, 23 on April 4, 2022. (See Compl., ECF No. 1.)1 Arellano claims Defendants, RJD mental 24 25 26 1 Throughout this Order and for ease of consistency and reference, the Court will cite to 27 each document in the record using both the number assigned to the document and the page number automatically generated by its Case Management/Electronic Case File system 28 1 health personnel, violated his Eighth Amendment rights by failing to provide him with 2 adequate mental health care. (See generally id.) On May 25, 2023, Defendants filed a 3 Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56. The Court has provided 4 Arellano with notice of the requirements for opposing summary judgment as required by 5 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 6 (9th Cir. 1998) (en banc). (See generally ECF No. 30.) Arellano filed his Opposition on 7 November 22, 2023 (ECF No. 47, “Opp’n”), and Defendants filed their Reply on December 8 6, 2023 (ECF No. 50, “Reply.”) 9 Having now carefully considered the full record and relevant law, the Court finds 10 Defendants are entitled to judgment as a matter of law with respect to Arellano’s Eighth 11 Amendment claims, and GRANTS Defendants’ Motion for Summary Judgment pursuant 12 to Fed. R. Civ. P. 56. 13 As an initial matter, the Court addresses Plaintiff’s request to consider his 14 Complaint, the operative pleading in this matter, as a “verified complaint” and to consider 15 the Complaint as evidence in opposition to Defendants’ Motion. (See Opp’n, ECF No. 47 16 at 2.) 17 PLAINTIFF’S REQUEST TO VERIFY COMPLAINT 18 Plaintiff concedes he neither verified his April 4, 2022 Complaint nor sought leave 19 to amend his Complaint at any time since April of 2022. (See id.) At no time until he filed 20 his Opposition in late November of 2023 did Plaintiff seek to verify his Complaint. For 21 these reasons, the Court DENIES Plaintiff’s request to retroactively verify his Complaint 22 and finds that the Complaint is not admissible evidence at this stage of the proceedings. 23 See Moran v. Seligi, 447 F.3d 748, 759-60 & n. 16 (9th Cir. 2006) (a complaint “cannot be 24 considered as evidence at the summary judgment stage because it is unverified.”). The 25 Court will, however, reference allegations contained in the Complaint for context. 26 / / / 27 / / / 28 / / / 1 EVIDENTIARY OBJECTIONS 2 Plaintiff also objects to Exhibit D attached to the declaration of Jennifer Burns. (See 3 Burns Decl., ECF No. 29-4). Exhibit D is the California Department of Corrections and 4 Rehabilitation’s (“CDCR”) confidential chrono summarizing an interview of Plaintiff 5 concerning his safety and enemy concerns. (See id. at 36-37.) Plaintiff objects to Exhibit 6 D on the grounds that there is no declaration from the person who wrote this chrono and it 7 is hearsay. (See Opp’n at 5.) 8 At the summary judgment stage, the Court does not need to focus on whether the 9 parties have submitted evidence in an admissible form. Instead, the Court focuses on the 10 admissibility of its contents and asks whether the evidence “could be presented in an 11 admissible form at trial.” Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) 12 (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive 13 summary judgment, a party does not necessarily have to produce evidence in a form that 14 would be admissible at trial, as long as the party satisfies the requirements of Federal Rules 15 of Civil Procedure 56.”). A “proper foundation need not be established through personal 16 knowledge but can rest on any manner permitted by Federal Rule of 17 Evidence 901(b) or 902.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773-74 (9th Cir. 18 2002). 19 Here, the Court finds there are enough contextual clues on the face of Exhibit D to 20 conclude the document is what it purports to be. See Fed. R. Evid. 901(b)(4) (evidence 21 may be authenticated by “appearance, contents, substance, internal patterns, or other 22 distinctive characteristics of the item, taken together with all the circumstances.”); see also 23 Johnson v. Sweeney, No. 114-CV-1526-LJO-SAB, 2015 WL 6082061, at *9 (E.D. Cal. 24 Oct. 13, 2015), report and recommendation adopted sub nom. Johnson v. Sweeney, No. 25 114-CV-1526-DAD-SAB, 2016 WL 8731209 (E.D. Cal. July 29, 2016) (“Courts generally 26 view objections based on authentication skeptically in the absence of an indication that the 27 document’s authenticity is genuinely in dispute, and objections to prison records which are 28 1 clearly what they purport to be are routinely overruled under Rule 901(b)(4)[.]”) (internal 2 citations omitted). 3 Plaintiff’s objections to Exhibit D on hearsay grounds are similarly unpersuasive. 4 The CDCR memorandum is a business record. See Fed. R. Evid. 801(d)(2). The fact that 5 Defendants did not submit a Custodian of Records’ declaration is not fatal to its 6 admissibility at this stage of the case. See JL Bev. Co., LLC v. Jim Beam Brands Co., 828 7 F.3d 1098, 1110 (9th Cir. 2016) (“[A]t summary judgment a district court may consider 8 hearsay evidence submitted in an inadmissible form, so long as the underlying evidence 9 could be provided in an admissible form at trial.”). The Court is satisfied that Exhibit D 10 could be introduced at trial consistent with the Federal Rules of Evidence. 11 For these reasons, the Court OVERRULES Plaintiff’s objections to Exhibit D of 12 Burns’ declaration. 13 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 I. FACTS 15 A. CDCR Mental Health Treatment Programs 16 Defendants, Calderon and Moreno, are psychologists employed by the California 17 Department of Corrections and Rehabilitation (“CDCR”) who were assigned to RJD. (See 18 Defs.’ Sep. Stmt. of Material Facts in Supp. of Mtn. for Summ. J. (hereinafter “SSMF”), 19 ECF No. 29-3, ¶ 2.) The CDCR provides mental health treatment to inmates at three 20 different levels. The Correctional Clinical Case Management System (CCCMS) is for 21 inmates who have either a serious mental health diagnosis, or mild to moderate functional 22 impairment. The Enhanced Outpatient Program (EOP) is for inmates who have the same 23 qualifying criteria as those at the CCCMS level of care, but the resulting functional 24 impairment is more severe and requires more frequent contact with mental health 25 professionals. (See id. at ¶ 4.) Finally, the Mental Health Crisis Bed (MHCB or “crisis 26 bed”) is for inmates “whose acute psychiatric systems cause them to be a danger to 27 themselves or other or who suffer a grave disability, meaning the inmate is incapable of 28 caring for himself safely.” (Id. at ¶ 7.) 1 Inmates at the CCCMS level of care receive individual contacts with either a 2 psychologist or social worker every 90 days, individual contact with a psychiatrist every 3 90 days, and an interdisciplinary treatment teams (IDTT) meeting annually. (See id. at 4 ¶ 5.) Inmates at the EOP level of care receive monthly contacts with a psychiatrist, weekly 5 visits with either a social worker or psychologist, and an IDTT meeting every ninety days. 6 (See id. at ¶ 6.) Finally, inmates at MHCB level of care are admitted to the MHCB to 7 receive “intensive medical and mental health treatment from a variety of providers for the 8 duration of their admission.” (Id. at ¶ 8.) During the duration of time an inmate is admitted 9 to the MCHB a “Suicide Risk and Self-Harm Evaluation” is conducted “numerous times.” 10 (Id.) “Clinicians assess the inmate-patient’s current presentation, verbal and non-verbal 11 indicators of distress, and the extent to which they articulate future plans and anticipated 12 future consequences.” (Id.) 13 B. Overview of Plaintiff’s Crisis Bed Admissions from March to April 2018 14 Plaintiff was housed in RJD’s sensitive needs yard from March 11, 2015 to March 15 14, 2018, where he was receiving care at the EOP level. (See id. at ¶ 9.) His level of care 16 and corresponding housing assignments were then changed relevant to the instant action 17 before this Court as follows: 18 Date Level of Care 19 March 14, 2018, to March 24, 2018 CCCMS 20 March 24, 2018, to April 4, 2018 MHCB 21 April 4, 2018, to April 6, 2018 Discharged to Administrative Segregation and then returned to CCCMS 22 April 6, 2018, to April 19, 2018 MHCB 23 April 19, 2018, to present CCCMS 24 25 26 (See Defs.’ Mem. P. & A. Supp. Mot. for Summ. J. (hereinafter “Defs.’ Memo P&As”), 27 ECF No. 29-1, at 9.) Plaintiff has not returned to the MHCB since these two admissions 28 and has remained at the CCCMS level of care. (See id.) 1 C. Arellano’s Mental Health Treatment – March 2018 to April 2018 2 As set forth above, Plaintiff was housed on the EOP yard from March 11, 2015, to 3 March 14, 2018, when he was transferred to CCCMS. (See SSMF at ¶ 9.) Ten days later, 4 on March 24, 2018, Plaintiff reported feeling suicidal to a corrections officer and was 5 admitted to the MHCB. (See SSMF at ¶ 15; Decl. of A. Moreno (hereafter “Moreno 6 Decl.”), ECF No. 29-5 at ¶ 14.) Dr. Moreno was assigned as his primary clinician, and 7 Plaintiff was under a one-on-one suicide observation for the first twenty-four hours. (See 8 id.) Thereafter, Plaintiff was observed at least every fifteen minutes. (See id.) On March 9 25, 2018, Psychologist Reyes, who is not a defendant in this lawsuit, performed a Suicide 10 Risk and Self-Harm Evaluation, which notes that Plaintiff stated that he tried to hang 11 himself in his cell on March 24, 2018, but stopped and reported his suicidal ideation to a 12 corrections officer. (See SSMF ¶ 16; Moreno Decl. at ¶ 15, Ex. A at 14-18.) Dr. Reyes 13 noted several factors that mitigate the risk of a patient’s suicidality, also known as 14 “protective” or “buffer” factors which included noting Plaintiff was “future- and goal- 15 oriented and had significant family support, including his children.” (See Moreno Decl. at 16 ¶ 15, Ex. A at 16.) Plaintiff notes that Dr. Reyes’s evaluation also documented his reports 17 of suicidal thoughts and plans to kill himself over several years. (See Pl.’s Opp’n to Defs.’ 18 Mot. for Summ. J., ECF No. 47 (“Opp’n) at 2 (citing Moreno Decl., Ex. A at 14-18).) 19 On March 26, 2018, after reporting intermittent suicidal ideation to registered nurses 20 in another suicide risk assessment, (see Moreno Decl., Ex. A at 110), Psychiatrist Toohey 21 noted that Plaintiff reported feeling depressed “after learning that his [eleven-year-old son] 22 had a suicide attempt and was hospitalized on a psych unit. The son’s mother blames 23 [Plaintiff’s] absence due to incarceration as contributing factor and places blame on 24 [Plaintiff]. [Plaintiff] felt depressed about this . . . [Plaintiff] states he told custody that he 25 26 27 2 These facts are taken from Defendants’ SSMF, see ECF No. 29-3 along with the declarations and exhibits attached to their Motion, and the Court will note when Plaintiff disputes any of these facts or 28 1 was feeling suicidal but when they told him to wait overnight to generate paperwork, he 2 tied a cable and contemplated suicide.” (Id. at 169.) In another assessment on that same 3 day, Psychologist Elloyan noted that “[Plaintiff] is new admission to the MHCB following 4 self-reported suicide attempt by hanging, though there is no objective proof of his account. 5 He currently reports [suicidal ideation] but no plan or intent.” (Id. at 177; see also SSMF 6 at ¶ 18.) In a “Suicide and Self-Harm Summary” completed on the same day and cited by 7 Plaintiff in his opposition, Dr. Elloyan noted that Plaintiff claimed to have attempted 8 suicide on four occasions but he could not recall the events of March 14, 2018 other than 9 attempting to put a chord around his neck but did not follow through with the attempt 10 because his cellmate woke up and used the bathroom. (See ECF No. 47-2 at 7.) Plaintiff 11 also reported that he told an unnamed sergeant the next day that he was feeling suicidal but 12 “no one was listening.” (Id.) Dr. Elloyan also noted in the “History of Present Illness” 13 section of her report: “Inconsistent reporting across documentation, flagged by Assessment 14 Unit as evaluated for malingering.” (Moreno Decl., Ex A at 177.) 15 The parties disagree as to whether the content of these reports demonstrate that 16 Plaintiff tried to kill himself on March 24, 2018. Defendants cite to Dr. Toohey’s report, 17 specifically the statement that Plaintiff “contemplated suicide,” but never actually tried to 18 carry out his plan to hang himself as evidence that Plaintiff recanted his statement that he 19 attempted suicide. (See SSMF at ¶ 17.) Meanwhile, Plaintiff contends that Dr. Toohey 20 misinterpreted his statements as English is his second language, explaining that Dr. 21 Elloyan’s assessment is more accurate and actually demonstrates that he did attempt to 22 commit suicide on the night of March 24, 2018. (See Opp’n at 2 (“As you can see, I tried 23 killing myself by pulling the chord on my neck then I stop because my cellie woke up, I 24 then thought about it [two] more times but didn’t do it cause my cellie could [wake] up.”).) 25 Regardless of these disagreements, however, none of the Parties dispute that Plaintiff 26 contemplated suicide on the night of March 24, 2018, and reported these feelings to a 27 correctional officer. 28 Additional notes from Dr. Elloyan’s assessment that day explained that Plaintiff was: 1 alert, fully oriented, and made good eye-contact. His thought process linear/logical/oriented . . . No delusions were observed 2 or reported . . . endorsed SI but no plan or intent. Affect did not 3 match self-report. When challenged with conflicting information previously reported, he appeared to stammer and 4 struggle to explain why his report today was different. 5 (Moreno Decl., Ex. A at 126.) An evaluation by Plaintiff’s Interdisciplinary Treatment 6 Team (“IDTT”), which included five mental health professionals, noted Plaintiff’s reports 7 of: 8 Conflicting information from previous documentation, stated he 9 has safety concerns “from the whole block”, but states that he 10 does have [suicidal ideation] and self-reported a suicide attempt on 3.24.18 in which he put a chord around his neck and pulled 11 but heard cellie get up and took chord off neck, went back to 12 sleep. Stated he reported SI again in the morning. No objective proof or collaboration of his account, no marks on neck 13 reported. 14 (Id. at 164; see also SSMF at ¶ 20.) Plaintiff explains that there were no marks on his neck 15 because while he put the chord around his neck, he “didn’t pull hard enough.” (Opp’n at 16 4.) That evening, Plaintiff reported intermittent suicidal ideation, but refused to answer 17 specific questions about “his suicidal ideation, possible plan, and reasons for feeling 18 suicidal.” (Moreno Decl., Ex. A at 111.) Plaintiff does not dispute that he refused to 19 answer specific questions maintaining he did so because “it was registered nurses who are 20 not mental health that were questioning me” and when he is feeling suicidal or depressed 21 he does not “like to talk or be questioned.” (Opp’n at 4.) 22 On March 27, 2018, Plaintiff was removed from one-on-one observation in the 23 MHCB and placed on an observation plan that involved checks by staff every fifteen 24 minutes. (See SSMF at ¶ 22.) In an assessment that afternoon, Dr. Toohey noted: “[No] 25 events overnight. Patient refused to talk with clinician today, Too tired . . . Nursing state 26 patient was observed in no acute distress earlier . . . MH tech observation notes that patient 27 reported suicidal thoughts today. No concerning activity.” (Moreno Decl., Ex. A at 188.) 28 1 Dr. Toohey also noted that Plaintiff’s “current presentation was for [suicidal ideation] but 2 no acute suicidality since admission,” and that Plaintiff “still meets criteria for MHCB at 3 this time.” (Id. at 189.) 4 On March 28, 2018, Plaintiff met with Defendant Moreno in the MHCB for the first 5 time, expressing interest in being placed in the EOP programming level. (See SSMF at 6 ¶ 23.) Plaintiff reported to Defendant Moreno that he felt depression and anxiety about his 7 inability to care for his family, his son attempting suicide due to his absence from his 8 family, his habeas corpus case, and issues with his cellmates. (See Moreno Decl., Ex. A at 9 196-97.) The progress note by Defendant Moreno explains that: 10 [Plaintiff] presenting increased stress related to recent change in LOC (EOP to CCCMS), self-reported [suicide attempt] of child, 11 and continuing stress related to index crime. [Plaintiff] reports 12 being able to cope previous to his LOC change. [Plaintiff] reports being interviewed by a Sgt about his safety concerns on 13 the yard. Denies [suicidal/homicidal ideation]. 14 (Id. at 197.) The March 28, 2018, note explains that Plaintiff would continue to be 15 monitored for suicidal ideation. (See id.) 16 Plaintiff contends that he told Dr. Moreno he was still feeling suicidal and that she 17 “purposely failed to note” these reports in the March 28, 2018 note. (See Opp’n at 4.) 18 Citing to notes from Certified Nursing Assistants who monitored him during his checks at 19 fifteen-minute intervals that day, Plaintiff notes that mental health professionals frequently 20 observed him with his head covered in bed, where he contends he was actively planning 21 suicide. (See id. at 4 (citing ECF No. 47-4 at 49-54; ECF No. 47-5 at 1-10).) 22 That same day, Plaintiff met with a correctional officer about his safety and enemy 23 concerns in his permanent housing assignment outside of the MHCB. (See ECF No. 29-4, 24 Burns Decl., Ex. D at 36-37.) A report drafted by an unnamed officer explains that during 25 the interview, Plaintiff said that he did not have safety concerns, but that “‘I said I was 26 suicidal (MHCB) so I can go back to the EOP (Enhanced Outpatient Program) program. 27 It’s easier there.’” (Id.) When the officer confronted Plaintiff about willfully manipulating 28 1 his level of care to obtain more favorable programming, Plaintiff stated “‘Well, this is what 2 all the other inmates do. Everyone knows that. I have to do it so I get back to EOP.’” (Id.) 3 While as noted above, Plaintiff objects to this report’s consideration as evidence in support 4 of Defendants’ motion for summary judgment as inadmissible hearsay but he does not 5 otherwise dispute that the officer told him that he was purposely manipulating his level of 6 care or that he told the officer he wanted to be placed in EOP programming for reasons 7 related to his safety and level of care. (See Opp’n at 5.) 8 On March 29, 2018 a progress note authored by Dr. Moreno explains: 9 [Plaintiff] reports depressed mood has improved somewhat, rating current depression as 6.5/10. [Plaintiff] reports still having 10 some paranoia about others out to harm him however “it’s better 11 when I don’t have a cellie.” [Plaintiff] reports attempting some coping skills . . . [Plaintiff] reports continuing to work on his 12 legal work and his next court date being on April 6. [Plaintiff] 13 reports some distress and denies [suicidal ideation/homicidal ideation]. 14

15 (See Moreno Decl., Ex. A at 195.) Dr. Moreno noted that Plaintiff had “some improved 16 mood . . . is future oriented going to his next court date and has protective factor of his son 17 . . . has been engaging in healthy coping skills and continues to improve . . . PC continues 18 review protective factors . . .” (Id.) Finally, Dr. Moreno noted “[p]ossible DC early next 19 week as sx’s are starting to improve,” but that Plaintiff would “continue to be seen daily 20 by MH staff.” (Id.) 21 Plaintiff contends that he “never denied suicidal ideation. I maintain such symptom 22 every day. And told them I couldn’t trust myself.” (Opp’n at 5.) Citing to additional 23 precaution notes by Certified Nursing Assistants on the day of March 29, 2018, that show 24 him lying down with his head covered, Plaintiff contends that this is “one way to know [I] 25 am still contemplating suicide[] or plan[n]ing it.” (Id. (citing ECF No. 47-5 at 12-31).) 26 On March 30, 2018, Psychiatrist Buabeng noted that Plaintiff “had a linear and 27 logical thought process at times,” and that his “[t]hought content is negative for suicidal 28 ideation while here at crisis bed.” (Moreno Decl., Ex. A at 18.) Dr. Buabeng further noted 1 that Plaintiff “feels safe here at crisis bed. Does not want to go to yard[,]” and that 2 “[Plaintiff’s] presentation during encounters, and reports of [his] behavior by custody, do 3 not align with the sx that he is reporting. [Plaintiff] endorses symptoms that seem to be 4 driven by secondary gain.” (Id. at 20.) Dr. Moreno also met with Plaintiff that day, noting 5 that he was future oriented and wanted to see his family after he paroles, and that Plaintiff 6 denied suicidal or homicidal ideation. (Id. at 190-91.) Additionally, Dr. Moreno noted 7 that Plaintiff’s: 8 mood appears to be improving and [he] has been processing about his current stressors. [Plaintiff] appears to be wanting 9 more support (as he was [previously] moved from EOP to 10 CCCMS) and was asking about EOP program again. PC encouraged [Plaintiff] to attempt to continue to boost his coping 11 skills as mood has been improving. It is suspected that [Plaintiff] 12 may be either trying to attempt to obtain a housing change or LOC change as [Plaintiff] reported hearing AH at CCCMS LOC 13 only and has never heard AH when at EOP LOC. 14 (Id. at 191-92.) In response, Plaintiff contends “I don’t know why Dr. Moreno will write 15 I don’t have [suicidal ideation] and that my situation is improving.” (Opp’n at 6.) Instead, 16 Plaintiff contends that he actually told Dr. Moreno “what she wrote on her report when she 17 stated that I told her, ‘It’s my situation I can’t handle.’” (Id.) Plaintiff also contends that 18 he asked for EOP because of his “suicidal thoughts that I know I’ll act [on] if [I go] back 19 to yard where there’s razors and [I] am not being watch[ed],” and that “in general I have 20 and get more attention when I need it [in EOP]. And you’[re] not locked in your cell 24hrs 21 as how in CCCMS which allow[s] me time to plan suicide[e].” (Id. at 6, 7.) 22 On March 31, 2018, Psychologist Contreras noted that Plaintiff did not report any 23 suicidal ideation and exhibited no suicidal or self-harming behavior. (See SSMF at ¶ 28; 24 Moreno Decl., Ex. A at 187-88.) Psychologist Hood met with Plaintiff on April 1, 2018, 25 noting that “he struggles with being moved from EOP to CCCMS LOC when he was on 26 the yard,” and that he “‘went downhill’” within two weeks from the last time he was moved 27 to CCCMS. (Id. at 180.) Dr. Hood also reported that Plaintiff “asked for a pencil, paper, 28 1 and some envelopes to write family.” (Id.) Plaintiff contends that he later told Dr. Moreno 2 that he requested pencil and paper from Dr. Hood “because I was planning to hurt myself.” 3 (Opp’n at 7.) 4 On April 2, 2018, Plaintiff reported feeling depressed and stressed about the impact 5 being in prison had on his family to Dr. Toohey. (See Moreno Decl., Ex. A at 184.) Dr. 6 Toohey noted that despite these reports, Plaintiff “was smiling and joking with staff 7 intermittently during interview,” and that Plaintiff “would like to be placed on EOP again 8 leaving [sic] that [] the encouragement to go to groups was helpful for him. Depression 9 still seen as reaction to real stressor . . .” (Id.) Plaintiff notes that “even though Toohey 10 didn’t mention [it],” he reported suicidal ideation to Psychologist Bailis on that day as well. 11 (See Opp’n at 7 (citing ECF No. 47-1 at 83).) 12 Plaintiff met with his IDTT on April 2, 2018 to discuss his appropriate level of care. 13 (See Moreno Decl., Ex. A at 152-161.) Plaintiff told the IDTT that he needed to return to 14 the EOP level of care because “custody comes to the door to remind us of groups in EOP 15 and that gives me the motivation to get up and go … otherwise the spiderweb just holds 16 me down in my cell all day.” (Id. at 161.) However, the IDTT determined that he did not 17 need EOP level of care and noted that Plaintiff was “intelligent, future oriented, [and] 18 independently work[ed] on his legal case effectively.” (Id.) In addition, in determining 19 that Plaintiff no longer needed EOP level of care, the IDTT found that “[s]ince participating 20 in EOP program, [Plaintiff] has likely gained additional coping skills and increased 21 adaptive strengths likely leading to resolution of [symptoms].” (Id.) 22 The following day, on April 3, 2018, Defendant Moreno met with Plaintiff and 23 Plaintiff informed him that he had “ongoing stress related to his legal work however no 24 issues with depression” and denied suicidal ideation. (Id. at 190.) Defendant Moreno 25 informed Plaintiff that he had “met all [treatment] goals” and was expected to transfer to 26 CCCMS the following day. (Id. at 191.) He further recommended that Plaintiff be seen 27 once a week during his first month back in CCCMS care and that he be “educated about 28 groups and programs available to CCCMS [inmates].” (Id.) Plaintiff contends that every 1 time he saw Defendant Moreno he “told her [he] was feeling suicidal and that he want[ed] 2 to kill [himself] to eliminate the loneliness and pain of being without [his] family.” (Opp’n 3 at 8.) Plaintiff claims he told Defendant Moreno that he did not “trust myself, I will attempt 4 to kill myself either by hanging or slicing my wrists” and razors are available to inmates 5 housed in CCCMS level of care. (Id. at 9.) 6 Later that night, after learning he would be transferred to CCCMS, Plaintiff reported 7 “intermittent” suicidal ideation to a nurse at 10:06 p.m. (Moreno Decl., Ex. A at 104.) 8 Psychiatrist Umugbe responded to this report and noted the Plaintiff reported that he 9 “want[ed] to end his life by hanging” and noted the same concerns that Plaintiff had 10 expressed to other mental health providers. (Id. at 183.) Dr. Umugbe placed Plaintiff on 11 a one-to-one suicide watch. (See id.) 12 The following day, Plaintiff met again with his IDTT, which included Defendant 13 Moreno, for an “extensive interview and review of his mental status.” (SSMF at ¶ 34, 14 Moreno Decl., Ex. A at 139-151.) The IDTT found that while Plaintiff “often reported still 15 feeling suicidal,” he also stated that “I want to see my family” and “I need to live for my 16 family” which the IDTT found to be “clearly future thinking.” (Id. at ¶ 34, Moreno Decl., 17 Ex. A at 151.) Plaintiff also told the IDTT “I can’t go to [administrative segregation], I 18 need phone calls to my family.” (Id.) The IDTT found that while Plaintiff did not want to 19 be transferred to CCCMS, it was “clear that [Plaintiff’s] issues have remained chronic and 20 could be treated at a lower [level of care]” and agreed to proceed with Plaintiff’s transfer. 21 (Id.) Plaintiff maintains that Defendant Moreno is only “assuming” that his “acute suicidal 22 claims were not true” because she has “no evidence that my acute suicidal claims were not 23 true.” (Opp’n at 10.) 24 That same day, April 4, 2018, Defendant Moreno performed a “Suicide Risk and 25 Self-Harm Evaluation” on Plaintiff. (Moreno Decl., Ex. A at 117.) Plaintiff informed 26 Defendant Moreno that he “tried to hang himself on [March 24, 2018], despite no evidence 27 of this” and he “later reported he didn’t actually attempt, he just made the noose.” (Id.) 28 Plaintiff disagrees with this report and claims he told Defendant Moreno that he “pull[ed] 1 the noose while around my neck but stop[ped] cause my cellie woke up [and] then I thought 2 about doing it twice but I didn’t.” (Opp’n at 10.) 3 After interviewing Plaintiff and reviewing his records, Defendant Moreno 4 determined that Plaintiff “presented a moderate risk of suicidality.” (SSMF at ¶ 36, 5 Moreno Decl., Ex. A at 121.) She further determined that he was “no longer in crisis and 6 the [treatment] team has agreed” to transfer Plaintiff back to CCCMS with “additional 7 sessions for transition” from EOP to CCCMS. (Moreno Decl., Ex. A at 122.) 8 Plaintiff was ultimately discharged from the MHCB by Dr. Toohey. (SSMF at ¶ 37, 9 Moreno Decl., Ex. A at 128-140.) Dr. Toohey reported that Plaintiff presented with 10 suicidal ideation but “no acute suicidality since admission until he discover[ed] that he was 11 being discharge[ed].” (Moreno Decl., Ex. A at 128.) Dr. Toohey also opined that 12 Plaintiff’s report of suicidal ideation “is highly suspicious of secondary gain (patient does 13 not want discharge).” (Id. at 129.) He further noted Plaintiff’s “mental status exam on 14 interview is not consistent with depressive mood (smiling, joking with staff, future 15 thinking)” and Plaintiff “demonstrated no suicidal behaviors or gestures during his 16 [MHCB] stay or [in] the months prior.” (Id.) Dr. Toohey ordered that Plaintiff be seen by 17 a primary clinician daily for five days and by a psychiatrist within ninety (90) days “or 18 sooner if necessary” upon his return to CCCMS. (Id. at 138-39.) Plaintiff denies that he 19 did not want to be discharged from MHCB but rather he wanted to be transferred to the 20 EOP level of care. (See Opp’n at 12.) 21 On April 5, 2018, Plaintiff met with Psychology Intern Johnson. (See SSMF at 22 ¶ 41; Decl. of A. Calderon (hereafter “Calderon Decl.”), Ex. A at 43.) Plaintiff “reported 23 his anxiety and depression are both 9 on a scale of 1-10, with 10 being highest level.” 24 (Calderon Decl., Ex. A at 63.) Plaintiff was reported to have high levels of anxiety and 25 depression but did not report suicidal ideation. (See id.) Johnson did not find Plaintiff to 26 be in crisis and “that CCCMS is the appropriate level of care.” (Calderon Decl. at ¶ 15; 27 Ex. A at 47.) Plaintiff does not dispute Johnson’s findings. (See Opp’n at 13.) However, 28 Plaintiff claims that at some point on that day, “when no one was around,” he “attempted 1 suicide by throwing himself from top bunk to concrete floor landing on side of head [and 2 shoulders.” (Id.) 3 Senior Psychologist Brown consulted with Plaintiff the following day on April 6, 4 2018. (See SSMF at ¶ 42; Calderon Decl., Ex. A. at 65.) Plaintiff reported to Brown that 5 he was suicidal and “no longer felt safe to remain in his cell with all of his belongings 6 because he did not know what he would do to himself.” (Calderon Decl., Ex. A. at 65.) 7 He further told Brown that “he rolled off the top bunk in his cell and hurt his head and 8 shoulder, though he did not receive medical attention.” (Id.) Brown reported that 9 “[n]either of these behaviors could be corroborated with supporting documentation in the 10 chart.” (Id.) Plaintiff responded that he “felt frustrated with mental health not taking him 11 seriously and he would do what was necessary to demonstrate his distress.” (Id.) Dr. 12 Brown opined that Plaintiff “can likely return to CCCMS if there is an adequate plan in 13 place for him.” (Id.) 14 Plaintiff was medically examined after his claims that he threw himself off his bunk. 15 (See Calderon Decl., Ex. A at 18-19.) Dr. Goyal reported Plaintiff had a “normal neuro 16 exam and does not have any red flags.” (Id. at 2.) Plaintiff states in response that the 17 doctor who examined him was “only looking for broken bones” but did not care about “all 18 [his] other aching pains.” (Opp’n at 13.) 19 Later that day, Psychologist Bailis performed a “Suicide Risk and Self Harm- 20 Evaluation” on Plaintiff. (Calderon Decl. Ex. A at 74-76.) Dr. Bailis noted Plaintiff 21 “appear[ed] motivated to return to EOP” and told her “I think I need to go back to EOP or 22 a higher level of care.” (Id. at 76.) Dr. Bailis found that Plaintiff’s “depression was likely 23 maintained by poor coping skills and maladaptive relational patterns” but since 24 “participating in EOP program, [Plaintiff] has likely gained additional coping skills and 25 increased adaptive strengths likely leading to resolution of [symptoms].” (Id. at 149.) 26 Plaintiff argues in response that Dr. Bailis only “pasted the answers of what another 27 psychologist put on the ‘Suicide Risk and Self Harm Evaluation.’” (Opp’n at 14.) 28 Later that night, Plaintiff was seen by Psychiatrist Buabeng. (See Calderon Decl. 1 Ex. A at 129.) Dr. Buabeng noted that Plaintiff had been recently discharged from a crisis 2 bed and was “brought back today after reporting suicidal ideation without a specific plan.” 3 (Id. at 138.) As part of the treatment plan, Dr. Buabeng noted “Safety: Continue 1:1 4 observation.” (Id.) 5 The following day, Plaintiff “reported no suicidal ideation and exhibited no suicidal 6 or self-harming behavior.” (Calderon Decl. at ¶ 20, Ex. A. at 32-33.) In addition, Plaintiff 7 “continued to show linear and self-harming behavior.” (Id. at 40-41.) Plaintiff disputes 8 this indicating that it was noted that he was “refusing care, uncooperative, withdrawn.” 9 (Calderon Ex. A at 40.) Plaintiff argues that just because he did not report suicidal ideation 10 does not “mean [he] wasn’t planning it, [be]cause he was.” (Opp’n at 14.) Plaintiff later 11 reported to Dr. Buabeng that he was “still having the thoughts, [he] has been trying to shake 12 it off.” (Calderon Dec., Ex. A at 177.) 13 On April 8, 2018, Plaintiff did not report any suicidal ideation or self-harming 14 behavior and was examined by Psychiatrist Contreras. (Id. at 30-31, 175-77.) Plaintiff 15 informed Dr. Contreras that he was “alright” but did not want any changes to his 16 medication. (Id. at 176.) Plaintiff claims that he was not examined by Dr. Contreras but 17 he was sleeping. (See Opp’n at 14.) The medical records indicate that Dr. Contreras 18 recorded that Plaintiff was “somewhat cooperative due to him still being sleeping this 19 morning.” (Calderon Decl., Ex. A at 176.) 20 The following day, on April 9, 2018, Plaintiff was seen by Dr. Calderon. (Id. at 65.) 21 Plaintiff told Dr. Calderon that his medication was “not at all” working and his treatment 22 was working “somewhat.” (Id.) Plaintiff also reported that the “negative impact” of his 23 death on his “loved ones” keeps him from killing himself and he feels “like I’m not ready 24 to die for several reasons.” (Id. at 77.) Plaintiff disputes this saying that he “actually told 25 Calderon [he] constantly is think[ing] of suicide” and he “strongly feels like dying.” 26 (Opp’n at 15.) 27 Plaintiff also met with his IDTT, which included Dr. Calderon, on April 9, 2018. 28 (Calderon Decl., Ex. A at 119-128.) The team reported that Plaintiff’s reports of suicidal 1 ideation were “vague and nonspecific.” (Calderon Decl., Ex. A at 127.) The team also 2 concluded that he did not qualify for a higher level of care, and he was primarily in MHCB 3 for “Ad Seg and safety reasons.” (Id.) 4 Plaintiff disputes this and claims that he told Dr. Calderon that he was “planning to 5 hang [him]self, slice [his] wrist, or OD with pills” but these statements were “omitted 6 [from] Calderon’s report.” (Opp’n at 15.) However, Dr. Toohey, another member of the 7 IDTT, reported that Plaintiff was “joking and smiling with staff during IDTT.” (Calderon 8 Decl., Ex. A at 172.) 9 Dr. Calderon attests that prior to his IDTT meeting on April 9, 2018, Plaintiff “did 10 not report suicidal ideation, suicidal or self-harming behaviors, and talked ‘happily’ with 11 his mental health observer.” (Calderon Decl. at ¶ 26.) However, “after learning at his 12 IDTT that he did not qualify for a higher level of care, [Plaintiff] reported constant suicidal 13 ideation.” (Id.) Plaintiff again disputes this and declares that he did report suicidal ideation 14 on April 6 and April 7, 2018. (See Opp’n at 15.) However, Plaintiff does not dispute that 15 he did not report any of these types of thoughts on April 9, 2018, prior to the IDTT meeting. 16 Dr. Calderon met with Plaintiff on April 10, 2018. (See Calderon Decl. at ¶ 27.) Dr. 17 Calderon reported that Plaintiff said he was “not doing well” but his “reports were vague, 18 and he appeared to be exaggerating his symptoms.” (Calderon Decl., Ex. A. at 190.) 19 Plaintiff also “perseverated on future-oriented tasks such as writing to the Innocence 20 Project, speaking with his sons, and other legal issues due to his release in 2028.” (Id. at 21 190-191.) Plaintiff also “appears to present himself in a distressed and depressed manner, 22 although he does not appear depressed or endorsing symptoms commonly associated with 23 depression.” (Id. at 191.) 24 Dr. Toohey met with Plaintiff on April 11, 2018, and noted that Plaintiff had “no 25 thoughts of self-harm” and “remains in behavioral control.” (Calderon Decl. Ex. A. at 26 169.) She further reported that “[[i]t remains our impression that, like previous crisis bed 27 admission, patient has secondary gain in staying in crisis bed.” (Id. at 171.) 28 On April 12, 2018, a team of nine (9) psychiatrists and psychologists, including Dr. 1 Calderon, met for a case conference in which they discussed Plaintiff’s level of care. (See 2 Calderon Decl. at ¶ 29.) It was discussed that Plaintiff reported he was feeling suicidal 3 when he was discharged from MHCB but the “treatment team had doubts about the veracity 4 of his claims and his need for inpatient treatment.” (Calderon Decl., Ex. A. at 188.) The 5 team discussed Plaintiff’s “recent background and possible motivations for seeking higher 6 level of care.” (Id.) Specifically, they reviewed his desire to delay deadlines for 7 “submissions accepted by the court,” his desire for his one-to-one suicide watch to be 8 monitored by female nurses,” and that he wanted to be “in EOP because he would receive 9 more clinical attention in general.” (Id.) However, Plaintiff was “unable to specify any 10 aspect of the treatment itself that he found helpful.” (Id.) The “team was in agreement that 11 [Plaintiff] did not require this level of care for a major mental illness” and “opted to 12 discharge [Plaintiff] back to CCCMS.” (Id. at 188-89.) The team also discussed the 13 discharge plan to include that Plaintiff “be seen with increased frequency (perhaps b- 14 weekly) following completion of his 5-day follow up to provide additional support.” (Id. 15 at 189.) 16 Dr. Calderon met with Plaintiff on April 12, 2018, and reported that Plaintiff 17 “appeared drowsy and reluctant to interact.” (Calderon Decl., Ex. A at 184.) Plaintiff 18 “reported he was feeling fine and needed to sleep.” (Id.) Plaintiff disputes this and states 19 that when he “told Calderon, [he] felt suicidal, he walked away.” (Opp’n at 17.) In 20 addition, “later that on that night,” Plaintiff claims he asked to have all items removed from 21 his cell because his “anxiety is high.” (Id.) 22 The next day, Plaintiff was given an additional dose of his anxiety medication. (See 23 Calderon Decl., Ex. A at 162.) Dr. Calderon met with Plaintiff later that day and reported 24 he did report suicidal ideations the previous night but seemed “calm” and did not “appear 25 depressed.” (Id. at 180.) Plaintiff told Dr. Calderon that he “’gave all my stuff back 26 because [he] didn’t want all these injuries’” while looking at his arms, but Dr. Calderon 27 reports that “there was no visible scars or affected skin issues with his arms.” (Id.) 28 Plaintiff was examined by Psychologist Hood on April 14, 2018. (See Calderon 1 Decl., Ex. A at 155-56.) Dr. Hood found that Plaintiff “appeared stable with no acute signs 2 of distress or de-compensation.” (Id. at 156.) Plaintiff informed Dr. Hood that he had 3 “more suicidal thoughts when I’m up at night” and Dr. Hood determined that Plaintiff 4 should be housed in MHCB “at this time.” (Id.) 5 On April 16, 2018, Plaintiff was seen by Dr. Calderon, who reported that Plaintiff 6 indicated that he “feel[s] like [he’s] not ready to die for several reasons” and only had 7 “passing thoughts of suicide.” (Id. at 77.) However, shortly after this meeting Plaintiff 8 “reported worsening suicidal ideation and impulses to cut himself and voluntarily returned 9 paper in his possession because he stated he could use it to cut himself.” (Calderon Decl. 10 at ¶ 35.) Plaintiff was placed in “one-to-one observation for twenty-four hours.” Id. In 11 response, Plaintiff maintains that it is “evident Dr. Calderon and all the team are all liars, 12 making misleading and prejudicial reports, putting life at risk.” (Opp’n at 19.) 13 Plaintiff met with his IDTT later that day. (See Calderon Decl., Ex. A at 106-119.) 14 The team agreed to change Plaintiff’s anxiety medication but did not find that he qualified 15 for a higher level of care. (See id. at 118.) They found despite Plaintiff reporting he had 16 suicidal ideation, he also reported that he did not “actually harm himself, and thus, he could 17 be transferred to CCCMS.” (Id. at 117-118.) Plaintiff claims in response that the team as 18 a whole played a limited role and “the only one making decisions and talking was 19 Calderon.” (Opp’n at 19.) 20 After the IDTT meeting, Plaintiff met with Dr. Toohey and reported that he “thought 21 of cutting but didn’t.” (Calderon Decl., Ex. A at 166.) Dr. Toohey reported Plaintiff agreed 22 to a change in medication but asked if the medication would “prevent me from having 23 babies in the future” and would it “turn [him] gay.” (Id.) 24 The following day, Plaintiff did not report suicidal ideation, nor did he exhibit any 25 suicidal or self-harming behavior. (See id. at 6, 147.) Plaintiff was informed that he would 26 be discharged from the crisis bed on April 19, 2018. (Id.) On April 18, 2018, Plaintiff was 27 introduced to Social Worker Powers who told him that he needed to be placed in EOP 28 because CCCMS does “not have enough care” for him. (Id. at 197.) However, Plaintiff 1 informed Powers that he was not currently experiencing suicidal thoughts. (See id.) 2 Plaintiff disputes this by claiming that he told Powers that putting him CCCMS would put 3 his life at risk because he had access to razors and “if [his] thoughts of suicide get severe, 4 [he] will slice [his] wrist.” (Opp’n at 20-21.) On that day, it was documented eight times 5 that Plaintiff did not report suicidal ideation or self-harming behavior. (See Calderon Decl., 6 Ex. A at 21-22.) 7 On April 19, 2018, at 1:00 a.m., Plaintiff informed staff that he had “superficially 8 cut his wrist with paper.” (Id. at 195.) When asked to “describe what he was feeling when 9 he engaged in this behavior,” Plaintiff “expressed frustration towards members of his 10 IDTT” and “insisted that he remain in EOP.” (Id.) Dr. Calderon determined that this was 11 not a suicide attempt because the cuts were superficial. (See Calderon Decl. at ¶ 40, Ex. A 12 at 160, 196-97.) 13 Later that day, Plaintiff informed Dr. Calderon that his medication was “somewhat” 14 working and that he rarely thinks about suicide. (Calderon Decl. at ¶ 41, Ex. A at 64, 76- 15 77.) Dr. Calderon administered a Suicide Risk and Self-Harm Evaluation. (See Calderon 16 Decl., Ex. A at 66-71.) Plaintiff reported that he “does not get called to attend groups in 17 C-yard as an CCCMS” but in “EOP, they come and get you.” (Id. at 66.) He further 18 reported that Plaintiff made “conditional threats toward the treatment team” and asked 19 “’what if’ he engages in self-injury,” whether that would “warrant another MHCB 20 admission.” (Id.) Psych Tech Milan and Dr. Brown both indicated that they believed 21 Plaintiff’s “statements were threats to MHCB treatment team and were stated for 22 manipulation reasons.” (Id.) Plaintiff was also “overheard speaking loudly with his 23 neighbor in cell 152 about how to get a higher level of care.” (Id. at 70.) 24 Plaintiff also met with his IDTT team on April 19, 2018. (See Calderon Decl., Ex. 25 A at 90-104.) The team found that “despite the lack of certainty about [Plaintiff’s] 26 motivations for seeking out EOP and DSH, the team was in agreement that [Plaintiff] did 27 not require this level of care for a major mental illness.” (Id. at 104.) 28 Dr. Jakobczuk met with Plaintiff after he was discharged from MHCB and found 1 Plaintiff to be “pleasant, calm and did not appear to be in any distress.” (Id. at 178.) 2 Plaintiff told Dr. Jakobczuk that he was in the “best [building] on C yard” and he received 3 a cellmate who he was familiar with that “mak[es] his adjustment easier.” (Id.) He denied 4 any “current desire or intent to kill himself.” (Id.) Every day for the following five days, 5 Plaintiff was seen daily by mental health staff and did not exhibit signs of acute distress, 6 but instead only reported “mild” suicidal thoughts on April 20, 2019. (Calderon Decl. at ¶ 7 45, Ex. A at 42-62, 151.) 8 On April 22, 2018, Plaintiff reported to Dr. Tribble that he was “doing better in his 9 new housing unit because he knows some inmates there and feels comfortable; as a result, 10 he does not want to have his LOC changed to EOP.” (Calderon Decl., Ex. A at 60.) 11 II. Legal Standard 12 A court may grant summary judgment when it is demonstrated that no genuine 13 dispute exists regarding any material fact and that the moving party is entitled to judgment 14 as a matter of law. See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 15 157 (1970). The party seeking summary judgment bears the initial burden of informing a 16 court of the basis for its motion and of identifying the portions of the declarations, 17 pleadings, and discovery that demonstrate an absence of a genuine dispute of material fact. 18 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it might 19 affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, 20 Inc., 477 U.S. 242, 248–49 (1986). A dispute is “genuine” as to a material fact if there is 21 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See 22 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 23 Where the moving party will have the burden of proof on an issue at trial, the movant 24 must affirmatively demonstrate that no reasonable trier of fact could find other than for the 25 movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where 26 the non-moving party will have the burden of proof on an issue at trial, the movant may 27 prevail by presenting evidence that negates an essential element of the non-moving party’s 28 claim or by merely pointing out that there is an absence of evidence to support an essential 1 element of the non-moving party’s claim. See Nissan Fire & Marine Ins. Co. v. Fritz 2 Companies, 210 F.3d 1099, 1102–03 (9th Cir. 2000). 3 If a moving party fails to carry its burden of production, then “the non-moving party 4 has no obligation to produce anything, even if the non-moving party would have the 5 ultimate burden of persuasion.” Id. But if the moving party meets its initial burden, the 6 burden then shifts to the opposing party to establish that a genuine dispute as to any material 7 fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 8 586 (1986). The opposing party cannot “rest upon the mere allegations or denials of [its] 9 pleading but must instead produce evidence that sets forth specific facts showing that there 10 is a genuine issue for trial.” See Estate of Tucker, 515 F.3d 1019, 1030 (9th Cir. 2008) 11 (internal quotation marks and citation omitted). 12 The evidence of the opposing party is to be believed, and all reasonable inferences 13 that may be drawn from the facts placed before a court must be drawn in favor of the 14 opposing party. See Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 15 However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” See 16 Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears 17 Holdings Corp., No. 11–09068, 2013 WL 1010547, *4 (C.D. Cal. Mar. 13, 2013) 18 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise 19 genuine issues of fact and defeat summary judgment.”). A “motion for summary judgment 20 may not be defeated ... by evidence that is ‘merely colorable’ or ‘is not significantly 21 probative.’” Anderson, 477 U.S. at 249–50 (citation omitted); see also Hardage v. CBS 22 Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce 23 evidence sufficient to create a genuine dispute of material fact, the moving party is entitled 24 to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103. 25 III. Analysis 26 Drs. Moreno and Calderon seek summary judgment with respect to Arellano’s 27 Eighth Amendment inadequate mental health care claims because evidence in the record 28 demonstrates that Plaintiff did not suffer from a serious mental health need and even if he 1 could show such a need, they were not deliberately indifferent to such needs because it was 2 their professional opinion that Plaintiff was not actually suicidal or a danger to himself or 3 others. (See Defs.’ Mem. of P&As at 16-20.) 4 Alternatively, Drs. Moreno and Calderon claim they are entitled to qualified 5 immunity because Arellano does not have a clearly established right to a “higher level of 6 mental health care following Defendants’ clinical assessments that Arellano’s supported 7 suicidality was not genuine.” (Id. at 24-25.) 8 A. Eighth Amendment Inadequate Mental Health Care Claims 9 The government has an “obligation to provide medical care for those whom it is 10 punishing by incarceration,” and a failure to meet that obligation can violate the Eighth 11 Amendment. Estelle v. Gamble, 429 U.S. 97, 103–05 (1976). In order to prevail on an 12 Eighth Amendment claim for inadequate medical care, however, a prisoner must show 13 “deliberate indifference” to his “serious medical needs.” Id. at 104. This includes “both 14 an objective standard—that the deprivation was serious enough to constitute cruel and 15 unusual punishment—and a subjective standard—deliberate indifference.” Snow v. 16 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by 17 Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). To meet the Eighth 18 Amendment’s objective requirements, the prisoner must demonstrate the existence of a 19 serious medical need. Estelle, 429 U.S. at 104. The Eighth Amendment’s subjective 20 requirement of deliberate indifference is a “high legal standard,” and a prisoner must 21 establish that the defendant “kn[e]w[] of and disregard[ed] an excessive risk to [his] health 22 and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057, 1060 (9th Cir. 2004) (internal 23 quotation marks and citation omitted). 24 1. Objective Standard: Serious Mental Health Needs 25 A sufficiently serious medical need exists if failure to treat his injury or condition 26 “could result in further significant injury” or cause “the unnecessary and wanton infliction 27 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks 28 omitted) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part 1 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 2 “A heightened suicide risk or an attempted suicide risk is a serious medical need. Conn v. 3 City of Reno, 591 F.3d 1081, 1095 (9th Cit. 2010), vacated, 563 U.S. 915 (2011), opinion 4 reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011). 5 Defendants argue that Plaintiff, at most, had a “generalized suicide risk, rather than 6 the “heightened suicide risk” required to establish a serious medical need.” (Defs. Memo 7 P&As at 17, citing Conn, 591 F.3d at 1095.) Specifically, Defendants contend that Plaintiff 8 only told Defendants that he was suicidal when his “clinical team informed him he was 9 being discharged to a lower level of mental health care.” (Id. at 18.) 10 Dr. Moreno attests that he met with Plaintiff on April 3, 2018, and found Plaintiff to 11 be “engaging in coping skills for improved mood,” and “exhibited future-forward thinking” 12 and thus, informed Plaintiff that he would be “discharged to CCCMS the next day.” 13 (Moreno Decl. at ¶ 30.) Later that night, Plaintiff informed a nurse that he had “intermittent 14 suicidal ideation.” (Id. at ¶ 31.) Dr. Moreno later performed a “Suicide Risk and Self- 15 Harm Evaluation” wherein he found Plaintiff’s “self-reported suicide attempt on March 16 24, 2018, to be “inconsistent.” (Id. at ¶ 33.) Dr. Moreno noted Plaintiff was “more agitated 17 that he was being discharged than exhibiting an effect more akin to someone with suicidal 18 ideations.” (Id.) Based on his observations, Dr. Moreno “concluded that [Plaintiff] 19 presented a moderate risk of suicidality” and his “reported desire to engage in self-harm 20 was conditional based on his housing placement and level of mental health care treatment.” 21 (Id. at ¶ 34, 36.) 22 Dr. Calderon attests that he examined Plaintiff on numerous occasions and was part 23 of his IDTT. When Dr. Calderon met with Plaintiff on April 10, 2018, he reported that 24 Plaintiff’s reports as to the status of his mental health were “vague and he appeared to be 25 exaggerating his symptoms.” (Calderon Decl. at ¶ 27.) On many occasions that Dr. 26 Calderon met with Plaintiff, other mental health staff documented no reports by Plaintiff 27 of suicidal ideation or exhibiting any suicidal or self-harming behavior. (See id. at ¶¶ 31- 28 34.) On April 18, 2018, Dr. Calderon met with Plaintiff and informed him “he would be 1 discharged from crisis bed on April 19, 2018. (Id. at ¶ 38.) On April 19, 2018, Plaintiff 2 “informed staff that he had cut himself.” (Id. at ¶ 40.) Plaintiff informed staff that “he did 3 not want to die, but that he was frustrated with his treatment team because he did not want 4 to be discharged and wanted to be treated at the EOP level of care.” (Id.) From this 5 information, Dr. Calderon determined that “this was not a suicide attempt because the cuts 6 were superficial.” (Id.) “Based on [Plaintiff’s] presentation, his history, and [mental- 7 health records,” Dr. Calderon concluded that Plaintiff’s “desire to engage in self-harm was 8 conditional based on his housing placement and level of mental health care treatment.” (Id. 9 at ¶ 46.) 10 Plaintiff claims in Opposition that he did attempt suicide by “pulling the chord on 11 my neck” but he stopped pulling before his “cellie woke up” causing him to think about 12 suicide “[two] more times but didn’t do it.” (Opp’n at 3.) In addition, he argues that there 13 are statements documented by Defendants and made by Plaintiff that he was having 14 suicidal ideation on multiple occasions. While Defendants do contest Plaintiff’s 15 credibility, and Plaintiff’s statements as to his suicide attempts are far from consistent, the 16 Court finds that there is evidence in the record that there is a triable issue of material fact 17 as to whether Plaintiff suffered from a serious medical need. 18 However, for the reasons set forth below, the Court finds there is no triable issue of 19 material fact as to whether Dr. Moreno or Dr. Calderon were deliberately indifferent to 20 those serious medical needs. 21 2. Subjective Standard: Deliberate Indifference 22 Deliberate inference “requires more than ordinary lack of due care.” Farmer v. 23 Brennan, 511 U.S. 825, 835, (1994) (internal quotation marks omitted) (citing Whitley v. 24 Albers, 475 U.S. 312, 319 (1986)). “[T]he official must both be aware of facts from which 25 the inference could be drawn that a substantial risk of serious harm exists, and he must also 26 draw the inference.” (Id. at 837.) Deliberate indifference “may appear when prison 27 officials deny, delay or intentionally interfere with medical treatment, or it may be shown 28 1 by the way in which prison physicians provide medical care.” Hutchinson v. United States, 2 838 F.2d 390, 394 (9th Cir. 1988). 3 “In deciding whether there has been deliberate indifference to a prisoner’s serious 4 medical needs, [courts] need not defer to the judgment of prison doctors or administrators.” 5 Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). However, “[a] difference of 6 opinion between a physician and the prisoner—or between medical professionals— 7 concerning what medical care is appropriate does not amount to deliberate indifference.” 8 Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). Rather, 9 “to prevail on a claim involving choices between alternative courses of treatment, a 10 prisoner must show that the chosen course of treatment ‘was medically unacceptable under 11 the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the 12 prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d 13 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta, 744 F.3d at 1076)); 14 accord Gordon v. Cty. of Orange, 6 F.4th 961, 970 (9th Cir. 2021). 15 Dr. Moreno treated Plaintiff from his first MHCB stay from March 24 to April 4, 16 2018. (See Moreno Decl. at ¶¶ 14, 22, 23, 25, 30, 32.) Dr. Calderon treated Plaintiff from 17 April 9, 2018, to April 19, 2018. (See Calderon Decl. at ¶¶ 23, 27, 29, 31-32.) Plaintiff 18 claims “both were aware that I didn’t have a passive, moderate suicidal ideation” but rather 19 he had “acute suicidality.” (Opp’n at 17.) He claims they were both deliberately indifferent 20 to his serious mental health needs because he “told them daily that [he] thinks of suicide 21 but unable to act due to [having] been in MCHB where there’s no tools and [he is] under 22 watch 24/7.” (Id.) He claims that their recommendations that he be placed in a lower level 23 of care is evidence of their deliberate indifference. (See id.) 24 However, the undisputed evidence in the record shows Arellano has an extensive 25 and well documented medical history for these timeframes which shows he was continually 26 treated by prison psychologists, psychiatrists, nurses, and other mental health staff for his 27 mental health issues. It is undisputed that Plaintiff underwent comprehensive suicide risk 28 evaluations and his condition was discussed by teams of mental health professionals. Dr. 1 Moreno attests that there “was no change in Arellano’s clinical presentation between 2 March 24, 2018, and April 4, 2018, that would suggest there was an increased risk of 3 suicidality.” (Moreno Decl. at ¶ 38.) Dr. Moreno concluded that that Plaintiff “did not 4 express a genuine desire to die during my assessments or visits with him” and opines that 5 Plaintiff “reported increased suicidality after learning he would be discharged from the 6 MHCB to protest his return to his housing unit at the CCCMS level of mental health care.” 7 (Id.) Thus, it was the opinion of Dr. Moreno that Plaintiff should be returned to the 8 CCCMS level of care “because it was clinically inappropriate to recommend a higher level 9 of care at that time.” (Id.) 10 Dr. Calderon attests that “[b]ased on Arellano’s presentation, his history, and [his 11 mental health records], [he] concluded that Arellano’s reported desire to engage in self- 12 harm was conditional based on his housing placement and level of mental health care 13 treatment.” (Calderon Decl. at ¶ 46.) In Dr. Calderon’s opinion, Plaintiff exhibited 14 “maladaptive behavior” which led to his recommendation that Plaintiff “be returned to 15 regular housing following his MHCB stay from April 4, 2018 to April 19, 2018.” (Id. at 16 ¶ 48.) Moreover, it was his professional opinion that Plaintiff “did not express a genuine 17 desire to die during my assessments or visits with him” and this opinion was also based on 18 Plaintiff’s “clinical presentation, the evaluations by other clinicians, his IDTT, the 19 conclusion of the case conference, and Arellano’s repeated comments about the EOP level 20 of mental health care.” (Id.) 21 Plaintiff attempts to raise a triable issue of fact by claiming throughout his 22 Opposition that Dr. Moreno and Dr. Calderon purposefully did not document Plaintiff’s 23 claims to them that he was feeling suicidal. Plaintiff argues that neither Dr. Moreno nor 24 Dr. Calderon had “any evidence strong enough to justify why they believe I should be sent 25 to CCCMS.” (Opp’n at 12.) He claims it is “evident Dr. Calderon and all the team are 26 liars, making misleading and prejudicial reports, putting life at risk.” (Id. at 19.) Plaintiff 27 argues throughout his Opposition that Dr. Moreno and Dr. Calderon purposefully did not 28 document Plaintiff’s claims to them that he was feeling suicidal. Plaintiff argues that 1 neither Dr. Moreno nor Dr. Calderon had “any evidence strong enough to justify why they 2 believe I should be sent to CCCMS.” (Opp’n at 12.) He claims it is “evident Dr. Calderon 3 and all the team are liars, making misleading and prejudicial reports, putting life at risk.” 4 (Id. at 19.) 5 Plaintiff does not dispute that he was examined by Defendants and many other prison 6 personnel or given examinations to assess his suicidal risk. While Plaintiff repeatedly 7 insisted that he was entitled to a higher level of care, Plaintiff is not a medical expert, and 8 his unsupported lay opinion is insufficient as a matter of law to establish a genuine factual 9 dispute. See Estelle, 429 U.S. at 93 (stating that the question whether “additional 10 diagnostic techniques or forms of treatment is indicated is a classic example of a matter for 11 medical judgment”); Vasquez v. Cnty. of Santa Clara, 803 F.App’x 100, 102 (9th Cir. 12 2020) (affirming summary-judgment decision finding no deliberate indifference when 13 defendant, “the last mental health professional to evaluate [the decedent] before his 14 suicide,” “reviewed [his] medical records, consulted with the officer on duty, observed and 15 conversed with [him], and, in his professional opinion, determined that [he] was not 16 suicidal.”); see also Valdez v. Zhang, No. 20-cv-0736-JLS-WVG, 2023 WL 2657626, at 17 *7 (S.D. Cal. Mar. 27, 2023) (Plaintiff failing to “offer any evidence whatsoever that [his 18 doctor’s] clinical assessments and recommendations deviated from prevailing standards of 19 care” defeats any finding of deliberate indifference to an “excessive risk to plaintiff’s 20 health.”). 21 Here, the medical records before the Court establish that treatment provided to 22 Arellano medically appropriate under the circumstances. See Toguchi, 391 F.3d at 1058; 23 Jackson, 90 F.3d at 332. Arellano disagrees, but his lay opinion alone, unsupported by any 24 “particular parts of materials in the record, including depositions, documents, … affidavits 25 or declarations, stipulations, … admissions, interrogatory answers,” or other admissible 26 evidence which corroborates his conclusion or reasonably tends to show that Dr. Moreno 27 or Dr. Calderon chose any particular course of treatment with conscious disregard of his 28 needs, is insufficient to establish a genuine dispute. Fed. R. Civ. P. 56(c)(1)(A); Rivera v. 1 Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory allegations 2 unsupported by factual data cannot defeat summary judgment.”) 3 Based on the record before it, this Court finds no jury could reasonably conclude 4 that any named Defendant acted with deliberate indifference to Arellano’s claims of serious 5 mental health needs. Accordingly, the Court concludes that Defendants are entitled to 6 summary judgment with respect to Plaintiff’s Eighth Amendment claims. 7 B. Qualified Immunity 8 Finally, Defendants claim that they are entitled to qualified immunity with respect 9 to Plaintiff’s Eighth Amendment claims. (See Defs.’ P&As at 24.) On summary judgment, 10 courts generally resolve questions of qualified immunity through a two-pronged inquiry. 11 Tolan v. Cotton, 572 U.S. 650, 655 (2014). The first prong “asks whether the facts, ‘[t]aken 12 in light most favorable to the party asserting the injury, ... show the officer’s conduct 13 violated a [federal] right[.]’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The 14 second prong “asks whether the right in question was ‘clearly established’ at the time of 15 the violation.” Tolan, 572 U.S. at 656 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)); 16 see also Sharp v. Cnty. of Orange, 871 F.3d 901, 909 (9th Cir. 2016). The court is not 17 required to address the prongs in any particular order. See Pearson v. Callahan, 555 U.S. 18 223, 236 (2009) (“[T]he judges of the district courts and the courts of appeals should be 19 permitted to exercise their sound discretion in deciding which of the two prongs of the 20 qualified immunity analysis should be addressed first in light of the circumstances in the 21 particular case at hand.”). 22 However, where, as is the case here with respect to Arellano’s Eighth Amendment 23 claims, “no constitutional right would have been violated were the allegations established, 24 there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 25 U.S. at 201; County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better 26 approach to resolving cases in which the defense of qualified immunity is raised is to 27 determine first whether the plaintiff has alleged the deprivation of a constitutional right at 28 all.”). Because the Court has found no genuine dispute with regard to Plaintiff’s Eighth 1 || Amendment deliberate indifference to serious medical needs against Defendants, it need 2 ||not also decide whether they would be entitled to qualified immunity. 3 || IV. Conclusion and Order 4 For the reasons stated above, the Court GRANTS Defendants Motion for Summary 5 || Judgment pursuant to Fed. R. Civ. P. 56 (ECF No. 29) and DIRECTS the Clerk of the 6 || Court to enter a final judgment in favor of Defendants on all claims and to CLOSE the 7 || file. 8 IT IS SO ORDERED. 9 || Dated: March 18, 2024 —— (2 10 lad \& (re 11 Honorable Todd W. Robinson D United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 ee