Verduzco v. Price, No. 4:2019cv01440 - Document 183 (N.D. Cal. 2022)
Court Description: ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT; ON PENDING MOTIONS; STRIKING BUSH'S ANSWER TO FOURTH AMENDED COMPLAINT Re: Dkt. Nos. 126 , 127 , 147 , 148 , 164 , 172 , 177 Signed by Judge Jeffrey S. White on September 30, 2022. (dts, COURT STAFF) (Filed on 9/30/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DANIEL VERDUZCO, 7 Plaintiff, 8 v. 9 MICKEY PRICE, et al., 10 Defendants. United States District Court Northern District of California 11 12 Case No. 19-cv-01440-JSW ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT; ON PENDING MOTIONS; STRIKING BUSH’S ANSWER TO FOURTH AMENDED COMPLAINT Re: Dkt. Nos. 126,127, 147, 148, 164, 172, 177 INTRODUCTION 13 Plaintiff, a California prisoner proceeding pro se, filed this civil rights action under 42 14 15 U.S.C. § 1983 against current and former staff members of Pelican Bay State Prison (“PBSP”), 16 where Plaintiff was formerly housed. The operative pleading is the Third Amended Complaint 17 (“TAC”). (ECF No, 93.) Summary judgment was previously granted to certain Defendants. 18 Defendants Hannah Bush, Lieutenant Basso, and Rook remain. Basso and Rook filed a joint 19 motion for summary judgment (ECF No. 126), and Bush filed a separate motion for summary 20 judgment (ECF No. 127). Plaintiff has opposed both motions, and Defendants have filed reply 21 briefs. Plaintiff has also filed numerous motions, memoranda, and other documents, and 22 Defendants have filed additional miscellaneous motions. After consideration of the entire record and all papers filed by the parties, the motions for 23 24 summary judgment are GRANTED, Plaintiff’s motion “for evidence” (ECF No. 147) is DENIED, 25 Plaintiff’s motions for an extension of time (ECF Nos. 148, 164) are GRANTED, Plaintiff’s ex 26 parte motion (ECF No. 172) is DENIED, Defendants’ motion to strike Plaintiff’s “sur-replies” 1 27 28 1 Defendants identify ECF Nos. 173 and 176 as sur-replies. Although the Court did not grant (nor did Plaintiff request) prior permission to file sur-replies, in light of Plaintiff’s pro se and 1 (ECF No. 177) is DENIED, and Defendant Bush’s Answer (ECF No. 113) to the Fourth Amended 2 Complaint is STRICKEN.2 DISCUSSION 3 4 I. Summary judgment is proper where the pleadings, discovery and affidavits show that there 5 6 is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a 7 matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the 8 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material fact is 9 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 10 party. The moving party for summary judgment bears the initial burden of identifying those 11 United States District Court Northern District of California Standard of Review 12 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 13 issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving party 14 has met this burden of production, the nonmoving party must go beyond the pleadings and, by its 15 own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. 16 If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, 17 the moving party wins. Id. 18 II. 19 Discussion A. Defendant Rook Background3 20 1. 21 Defendant Rook, a nursing assistant at PBSP, was assigned to monitor Plaintiff in a 22 “Mental Health Crisis Bed” (“MHCB”) on May 8 and 9, 2017, from 6:00 a.m. to 2:00 p.m.. An 23 MHCB is for inmates who are having serious mental health issues, including suicidality. The 24 25 26 27 28 incarcerated status, for the purpose of a thorough resolution of the issues before the Court, and in the interests of judicial economy, the Court has considered these filings. The Court finds Plaintiff’s arguments that the reply briefs are “inadmissible” and that defense counsel is engaged in a conspiracy --- arguments that Plaintiff makes in these filings and elsewhere --- to be frivolous. 2 In many of his filings, Plaintiff requests sanctions against defense counsel. (See, e.g., ECF Nos. 149-54.) These requests are DENIED because defense counsel did not engage in any conduct warranting sanction. 3 Except where otherwise specified, the background facts are not in dispute. 2 1 room Plaintiff was in had a window in the door that Rook could look through, and the lights were 2 kept on during her entire shift. On both days, she logged her observations every 15 minutes, and 3 her log entries were tracked automatically so she could not change the times of her entries. At 4 each 15-minute check, she confirmed he was alive and not harming himself. Plaintiff states that 5 he purposely cut his little finger between 11:00 a.m. and 2:00 p.m. on May 8, and again the next 6 morning. Rook’s log entries indicate that she did not see him cut his finger. United States District Court Northern District of California 7 “Psych techs” administered medication to Plaintiff twice on May 8 and twice on May 9. 8 Nurses checked Plaintiff’s vital signs and assessed him three times per day, and he met with a 9 psychologist or psychiatrist every day. At approximately noon on May 8, Plaintiff met with his 10 “Interdisciplinary Treatment Team” (“ITT”), which consisted of two psychologists, a psychiatrist, 11 a senior psychologist, a senior psychologist supervisor, a nurse, and a correctional counselor. 12 They addressed his mental health issues and an injury he had sustained on a finger on his left hand 13 on May 5, 2017. Plaintiff originally reported that he injured it when he fell, but the medical staff 14 who treated him surmised that it was a self-inflicted wound from tying a string very tightly around 15 his finger. He received stitches on May 5. On May 8, the ITT nurse examined Plaintiff and found 16 the stitches missing. Plaintiff asserted that the stitches had fallen out, and the nurse determined 17 that it was healing properly without the stitches. The next morning, Plaintiff would not let a nurse 18 examine his injured finger, but later that day, he allowed a psychologist who was performing a 19 daily check to examine it. The psychologist alerted medical personnel, and Plaintiff was taken 20 first to the prison medical center where staff found a portion of his finger necrotic, and later, at an 21 outside hospital, that portion of his finger was amputated. 22 2. Analysis 23 Plaintiff claims that Rook failed to adequately protect him from harm from his 24 finger injury. Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 25 Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 26 104 (1976). A prison official is deliberately indifferent if he knows that a prisoner faces a 27 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 28 it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of 3 United States District Court Northern District of California 1 facts from which the inference could be drawn that a substantial risk of serious harm exists,” but 2 he “must also draw the inference.” Id. If a prison official should have been aware of the risk, but 3 was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. 4 Gibson, 290 F.3d at 1188. A claim of medical malpractice or negligence is insufficient to make 5 out a violation of the Eighth Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 6 2004). 7 The Court assumes for purposes of this discussion that Plaintiff’s mental health issues and 8 his finger injury were both serious medical needs, There is no evidence, however, that Rook was 9 deliberately indifferent to either condition. Plaintiff initially injured his little finger on May 5, 10 which was not on Rook’s watch. The evidence that he further injured his finger on May 8 and 11 May 9, days she worked one of the observation shifts, does not establish that she was deliberately 12 indifferent because there is no evidence that she knew that he had done so. The evidence 13 establishes that she checked on him every 15 minutes and that she did not see him hurting his 14 finger. Plaintiff asserts that she must have seen it, but that assertion is simply speculative because 15 the evidence shows that she made her observations through a window in his door from which she 16 would not necessarily see him hurting his little finger. Given the evidence that there were nurses, 17 psychologists, psych techs, and psychiatrists who were visiting Plaintiff, examining him, and 18 treating him throughout each day, Rook’s conducting her checks through the window was not 19 knowing disregard for Plaintiff’s mental health condition either. Indeed, there is no evidence that 20 any of the other personnel who observed him conducted the checks any differently. At most, 21 Plaintiff’s arguments might suggest negligence, but neither negligence nor gross negligence are 22 sufficient to establish an Eighth Amendment violation. See Farmer, 511 U.S. at 835-36 & n.4. 23 There is no evidence from which a reasonable fact-finder could conclude that was Rook knew that 24 Plaintiff further injured his finger or knew that the medical attention she and other personnel were 25 providing, even viewing all the evidence in a light most favorable to Plaintiff. 26 Plaintiff asserts that he told Rook that he was going to hurt himself on May 8, 2017, but 27 the evidence he relies upon does not support this assertion. He relies on Rook’s log notes in which 28 she recorded that Plaintiff told her that she should take sick time and stay home. To begin with, 4 1 this statement Plaintiff is too oblique for a reasonable fact-finder to find that it established that 2 Rook in fact knew that Plaintiff meant that he was going to injure himself. Moreover, the log 3 notes show that she recorded this statement on May 9, after Plaintiff had already injured his finger 4 on May 5 and May 8. Plaintiff also relies upon Rook’s answer and a declaration by Defendant 5 Coburn stating that Plaintiff told Rook not to be there, but neither piece of evidence indicates that 6 Rook knew that meant that Plaintiff would hurt himself or specifies the day Plaintiff made that 7 statement to Rook. Plaintiff argument that Defendants’ evidence constitutes “perjury” because it is “false” is 8 9 United States District Court Northern District of California 10 frivolous. Plaintiff also argues that he is still entitled to more discovery, but the materials he wishes to discover are not relevant to Defendants’ summary judgment motion. 11 For the foregoing reasons, there are no triable issues of fact that, if resolved in Plaintiff’s 12 favor would establish that Rook was deliberately indifferent to Plaintiff’s condition. Thus, Rook 13 is entitled to summary judgment on Plaintiff’s Eighth Amendment claim.4 B. 14 Defendant Basso 15 1. Background 16 Defendant Basso was a lieutenant at PBSP on May 10, 2017, where he was 17 assigned to investigate information that Defendant Dr. Hannah Bush, then an intern psychologist 18 at PBSP who had treated Plaintiff, had an “overfamiliar relationship” with Plaintiff. Bush’s then- 19 fiancé had found in Bush’s possession letters written by Plaintiff to her, a photo of Plaintiff, and a 20 copy of Plaintiff’s birth certificate. Basso concluded that Bush had violated prison rules against 21 overfamiliar relationships with inmates, and the next day, he sent a report of his investigation to 22 the prison officials responsible for handling such findings. Basso interviewed Plaintiff, who, in 23 contrast to his allegations here, repeatedly denied having written the letters or having a personal 24 relationship with Bush beyond her being his clinician. Bush was placed on administrative leave 25 26 27 28 4 Because of this conclusion and the similar conclusion, below, regarding the claims against Basso, the Court need not reach their alternative arguments based upon exhaustion and qualified immunity. Defendant Bush does not make a qualified immunity argument, nor has she filed an answer to the operative complaint, i.e. the TAC. Her answer to the Fourth Amended Complaint (“FAC”) (ECF No. 113) is STRICKEN because Plaintiff was denied leave to file a FAC. 5 United States District Court Northern District of California 1 on May 12, 2017, and Basso instituted a “gate stop,” which was an order to personnel at the PBSP 2 entrance not to admit her. Bush did not return to PBSP except for one occasion when she was 3 interviewed by an official in the prison’s Internal Affairs Office, and she resigned from her 4 position with the California prisons. 5 2. Analysis 6 Plaintiff claims that Basso failed to prevent Bush from sexually harassing and 7 abusing him. The failure of prison officials to protect inmates from attacks by other inmates or 8 from dangerous conditions at the prison violates the Eighth Amendment when two requirements 9 are met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official 10 is, subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A 11 prison official is deliberately indifferent if he knows of and disregards an excessive risk to inmate 12 health or safety by failing to take reasonable steps to abate it. Id. at 837. Allegations in a pro se 13 complaint sufficient to raise an inference that the named prison officials knew that plaintiff faced a 14 substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to 15 abate it state a failure-to-protect claim. Hearns, 413 F.3d at 1041-42. 16 Plaintiff claims that Basso failed to protect him from alleged sexual abuse by Bush. The 17 evidence establishes the contrary, however. It is undisputed that Basso immediately investigated 18 the evidence of an improper relationship, he sent his report to the appropriate authorities the next 19 day, and the day after that, Bush was placed on leave and never worked at the prison again. There 20 is no evidence that Basso failed to take reasonable steps to stop contact between Basso and 21 Plaintiff once Basso had information indicating that the relationship violated prison rules. 22 Plaintiff complains that Basso failed to prevent her from later visiting him at other prisons after he 23 was transferred. However, in addition to the evidence indicating that Plaintiff authorized and 24 requested such visits, there is no evidence that Basso knew about them. Moreover, Basso presents 25 uncontroverted evidence that he could not have done anything to stop such visits because he did 26 not have authority to issue stop-gate orders at other prisons or order officials at other prisons not to 27 allow Plaintiff to have Bush as a visitor. The record contains no evidence from which a 28 reasonable fact-finder could conclude that Basso failed to take any reasonable step to prevent a 6 1 substantial risk of harm of which Basso knew. Accordingly, Basso is entitled to summary 2 judgment on Plaintiff’s Eighth Amendment claim. C. United States District Court Northern District of California 3 Defendant Bush5 4 1. Background 5 Defendant Bush was a postdoctoral intern in psychology at PBSP. She provided 6 therapy to Plaintiff from February to May 2017, when she resigned her position in response to 7 Basso’s investigation and report that they had engaged in an “overfamiliar” relationship. Plaintiff 8 had a history of cutting and self-harm before Bush met him, including slashing his lawyer’s face 9 with a razor blade in court and cutting his own tongue at PBSP. In response to efforts to transfer 10 him to another prison beginning in March 2017, Plaintiff expressed an intention to harm himself, 11 and Bush responded by making self-harm assessments, documenting his statements, and reporting 12 them to her supervisors. According to Dr. Bush, they spoke romantically to each other during therapy sessions and 13 14 exchanged romantic letters, in violation of her ethical duties and professional responsibilities. 15 According to Plaintiff, they also spoke and wrote to each other in a sexually explicit manner and 16 engaged in sex acts during therapy, which Bush denies. The therapy sessions occurred in her 17 office with Plaintiff in in a metal and plexiglass box; according to Plaintiff, the metal box 18 contained small holes that could fit a fingertip. There was a window in the door to the office and 19 correctional officers checked on them every few minutes. Plaintiff also states that Bush asked him 20 to cut off his finger, which Dr. Bush also denies; according to Bush, he stated that he would cut 21 off his finger if he was transferred to another prison. After Bush resigned from the prisons and Plaintiff was transferred to another prison in 22 23 24 25 26 27 28 5 Defendant Bush is proceeding pro se. In light of her pro se status, the Court construes the signature under penalty of perjury at the bottom of the last pages of her summary judgment motion and reply brief (see ECF Nos. 127 at 6, 160 at 8) as applying to the motion and reply brief. Based on this construction, the Court considers facts set forth in her motion and reply to be evidence to the extent that such facts are within her personal knowledge and are admissible as evidence. If Plaintiff did not intend to swear under penalty of perjury to the truth of the facts set forth in her motion and reply brief that are within her personal knowledge, and only intended to swear to the truth of the facts in the proofs of service, she shall so notify the Court within seven days of the date this order is filed, and the Court will reconsider the portion of this Order that addresses her motion for summary judgment. 7 United States District Court Northern District of California 1 May 2017, they continued to write each other letters, and she visited him in his new prison. He 2 placed her on his visitor list at his new prison, and the visits were in the presence of correctional 3 officers. Plaintiff asserts that they engaged in sexual conduct during those visits, which Bush 4 denies except for one occasion when he touched her breast over her clothes and one occasion 5 when he touched her clothed leg. According to Bush, their relationship was romantic, and she 6 gave him money for commissary items. In November 2018, she ended their relationship and 7 moved to Tennessee, where she remains. 8 2. 9 Plaintiff’s claims that Bush violated his Eighth Amendment rights by sexually 10 abusing him, and that she violated his Eighth Amendment rights by failing to prevent --- and 11 indeed encouraging --- his self-inflicted finger injury. The Court addresses each of these claims in 12 turn. 13 Analysis “Sexual harassment or abuse of an inmate by a corrections officer is a violation of the 14 Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012) (citations omitted). 15 In evaluating a prisoner’s claim of sexual harassment or abuse, courts consider whether “the 16 officials act[ed] with a sufficiently culpable state of mind” and if the alleged wrongdoing was 17 objectively “harmful enough” to establish a constitutional violation. Id. (citing Hudson v. 18 McMillian, 503 U.S. 1, 8 (1992)). The Eighth Amendment's prohibition against cruel and unusual 19 punishment necessarily excludes from constitutional recognition de minimis forms of force or 20 sexual harassment. See Hudson, 503 U.S. at 9-10 (de minimis uses of force do not violate the 21 Eighth Amendment); Watison v. Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012) (no 8th 22 Amendment violation against officer who was alleged to have rubbed his thigh against plaintiff's 23 thigh while plaintiff was on toilet and to have begun smiling before leaving cell laughing); 24 Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998) (no 8th Amendment violation where 25 employees briefly touched inmate's buttocks with apparent intent to embarrass him, and touching 26 was unaccompanied by any sexual comments or banter). Mere verbal sexual harassment that does 27 not involve sexual or physical contact does not necessarily amount to an Eighth Amendment 28 violation, moreover. See Austin v. Williams, 367 F.3d 1167, 1171-72 (9th Cir. 2004). A prisoner 8 United States District Court Northern District of California 1 therefore must establish that the alleged sexual harassment was egregious, pervasive and/or 2 widespread in order to state a claim under the Eighth Amendment. See, e.g., Jordan, 986 F.2d at 3 1525-31 (prison policy requiring male guards to conduct body searches on female prisoners); 4 Watson v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (correctional officer sexually harassed 5 two inmates on almost daily basis for two months by conducting deliberate examinations of 6 genitalia and anus). 7 Plaintiff claims that Bush sexually abused him while she was his therapist at PBSP and 8 also after she resigned from her job with the prison system, while he was at another prison. To 9 state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured 10 by the Constitution or laws of the United States was violated and (2) that the alleged violation was 11 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 12 Any asserted abuse or harassment that Bush might have committed after she resigned from the 13 prison system (and employment with the State of California) cannot support a claim under Section 14 1983 because she was no longer acting under color of state law. carrying out her job as a state 15 employee. Generally, a public employee acts under color of state law while doing her job or 16 acting in her official capacity. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997). The 17 evidence is uncontradicted that she resigned from her job with the prison system shortly after the 18 incident with Plaintiff’s finger and his transfer to another prison. After resigning from state 19 employment, she became a private citizen and as such, she did not act under color of state law 20 within the meaning of Section 1983. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (private 21 individual generally does not act under color of state law).6 Therefore, Plaintiff’s Eighth 22 23 24 25 26 27 28 6 There are certain instances in which a private individual may be found to be a state actor, and the various tests for such a finding have been summarized as follows: The public function test is satisfied only on a showing that the function at issue is both traditionally and exclusively governmental. The close nexus and joint action tests may be satisfied where the court finds a sufficiently close nexus between the state and the private actor so that the action of the latter may be fairly treated as that of the State itself, or where the State has so far insinuated into a position of interdependence with the [private party] that it was a joint participant in the enterprise. Governmental compulsion or coercion may exist where the State has exercised coercive power or 9 1 Amendment claim against Bush may only be based upon her conduct while she was employed by 2 the state, i.e. the approximately three months between February and May 2017 when she was 3 treating him at PBSP.7 The evidence in the record precludes a reasonable fact-finder from finding that Bush United States District Court Northern District of California 4 5 physically abused or harassed Plaintiff sexually. Plaintiff states that they engaged in physical 6 sexual activity during their therapy sessions, and Bush states they did not. A court does not make 7 credibility determinations at summary judgment, but “[w]hen opposing parties tell different 8 stories, one of which is blatantly contradicted by the record, so that no reasonable jury could 9 believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for 10 summary judgment.” Scott v. Harris, 550 U.S. 372, 380-83 (2007). Here, Plaintiff’s account that 11 they engaged in physical sexual activity during their therapy sessions is blatantly contradicted by 12 the record. The evidence is uncontradicted that the only time they were in physical proximity 13 while Bush was a state employee was during therapy sessions. During those sessions, Plaintiff 14 was in a metal and plexiglass box which prevented physical contact, and they were under the 15 frequent observation of correctional officers to ensure that they hewed to prison rules prohibiting 16 sexual activity or overfamiliarity. Plaintiff’s allegation that they engaged in sexual activity 17 through the small holes in the metal is not reasonably believable given that they were in a 18 windowed office being observed by correctional officers, and there is no evidence of any that any 19 officers ever found them violating them violating prison rules forbidding such activity. The 20 evidence regarding their therapy sessions preclude a reasonable fact-finder from believing 21 Plaintiff’s allegations --- vigorously denied by Bush --- that they physically engaged in sexual 22 activity during their therapy sessions. Consequently, there is no triable issue as to whether Bush 23 sexually abused or harassed him physically while she was a state employee 24 has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. 25 26 27 28 Rawson v. Recovery Innovations, 975 F.3d 742, 748 (9th Cir. 2020) (citations and internal quotation marks omitted). There is no evidence that suggests any of these tests can be satisfied for Defendant Bush after she resigned from her position with the prison. 7 Plaintiff’s assertion of state law violations are not cognizable under Section 1983. 10 United States District Court Northern District of California 1 What remains are Plaintiff’s assertions of verbal sexual harassment, i.e. that she made 2 sexually explicit statements during therapy sessions and in their correspondence, while she was a 3 state employee. Allegations of mere verbal harassment and abuse fail to state a claim cognizable 4 under 42 U.S.C. § 1983, however. Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) 5 overruled in part on other grounds by Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); 6 Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981); see, e.g., Oltarzewski v. 7 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (directing vulgar language at prisoner does not state 8 constitutional claim); Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) ("mere words, without 9 more, do not invade a federally protected right"); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th 10 Cir. 1975) (prisoner does not have cause of action under § 1983 for being called obscene name by 11 prison employee). Even sexually harassing behavior has been found not to violate the Eighth 12 Amendment where it did not involve sexual or physical contact does not violate the violate the 13 Eighth Amendment. See Austin, 367 F.3d at 1171-72 (upholding summary judgment dismissal of 14 8th Amendment claim where prison guard exposed himself to prisoner in elevated, glass-enclosed 15 control booth for 30-40 seconds). 16 Consequently, Plaintiff’s Eighth Amendment claims cannot survive based solely on his 17 assertions of verbal sexual communication from Bush. The Court notes further that Plaintiff’s 18 evidence of that Bush talked and wrote to him in sexually explicit terms is uncorroborated. He has 19 not produced any letters by her showing such language. Bush concedes that their communication 20 was “romantic,” but she denies his allegations that she made sexually explicit statements. The 21 evidence that Bush provided extensive reports about their therapy sessions that concerned his 22 mental health, suicidality, and ideations of self-harm, supports her assertion that she was treating 23 him during those sessions and not engaged in sexual exchanges. But even if this factual dispute is 24 resolved in Plaintiff’s favor for purposes of summary judgment, as stated above, a reasonable fact- 25 finder could conclude at most only that Bush and Plaintiff said and wrote sexually explicit things 26 to each other while she was a state employee, which at worst would be verbal harassment. 27 28 When viewing the evidence in a light most favorable to Plaintiff, Bush was romantically entangled with Plaintiff during the three months she was a state employee, and they exchanged 11 United States District Court Northern District of California 1 sexually explicit letters and words during that time. Though this was unethical and ill-advised 2 behavior by Bush, it was not a violation of Plaintiff’s constitutional rights. There are no triable 3 issues of fact that, if resolved in Plaintiff’s favor, would rise to the level of sexual abuse or 4 harassment that violated the Eighth Amendment. 5 Plaintiff also claims that Bush failed to prevent him from injuring his finger, but the 6 evidence indicates the contrary. She attempted to treat his mental health problems and prevent his 7 self-harm by completing self-harm assessments, documenting his threats of self-harm, and 8 reporting those threats to her supervisors. Plaintiff presents no evidence that she did not do so or 9 that there were additional steps she could have taken to stop him from injuring his finger. Plaintiff 10 alleges that Bush asked him to cut his finger off to prove that he loved her, which Bush 11 vehemently denies. Plaintiff’s allegations are not corroborated, and they are belied by the 12 evidence that Plaintiff had a history of cutting himself and others long before he met Bush. There 13 is no triable factual issue as to whether Bush was deliberately indifferent to Plaintiff’s mental 14 health condition that caused him to cut his own finger. 15 Plaintiff asserts that Bush committed a “crime” by destroying evidence, i.e. the letters from 16 him that were in her “lockbox.” There is no evidence that she destroyed these letters, and Plaintiff 17 admits that this assertion is “speculation” (ECF No. 156-1 at 7). Indeed, as confirmed by Basso, 18 her ex-fiancé sent them to prison officials. The letters are, moreover, irrelevant to Plaintiff’s 19 claim. He asserts that they show that they had physical sexual contact during therapy. The letters 20 were written by Plaintiff, however, not by Bush, so they cannot demonstrate either that she 21 physically or verbally abused or harassed him. At most, Plaintiff’s letters would contain his 22 assertions of such activity, which are redundant to the assertions he already makes in his sworn 23 pleadings and declarations.8 Plaintiff also references the opinion of a psychologist in his 24 opposition, but he does not submit an affidavit or other sworn testimony by the psychologist. 25 26 27 28 8 Plaintiff also complains that Bush did not give him the letters in discovery, but in addition to being irrelevant and redundant, the letters were no longer in her possession. While her former attorney implied that he read the letters or copies of them in the answer to the Second Amended Complaint, the discovery rules do not obligate Bush to attempt to locate the letters for Plaintiff when Plaintiff could just as well have subpoenaed them from prison officials himself. 12 1 Therefore, his statements about this psychologist’s opinion are inadmissible hearsay. CONCLUSION 2 3 For the reasons set out above, the motions for summary judgment are GRANTED. 4 Plaintiff’s motion “for evidence” (ECF No. 147) is DENIED, Plaintiff’s motions for an extension 5 of time (ECF Nos. 148, 164) are GRANTED, Plaintiff’s ex parte motion (ECF No. 172) is 6 DENIED, Defendants’ motion to strike Plaintiff’s “sur-replies” (ECF No. 177) is DENIED, and 7 Defendant Bush’s Answer (ECF No. 113) to the Fourth Amended Complaint is STRICKEN. 8 The Clerk shall enter judgment and close the file. 9 IT IS SO ORDERED. 10 Dated: September 30, 2022 United States District Court Northern District of California 11 12 JEFFREY S. WHITE United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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