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Case3:09-cv-04231-RS Document76 Filed10/19/11 Page 1 of 11

123456789101112 JAMES ALAN BUSH,13 Plaintiff,

*E-Filed 10 /19111 *

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

No. C 09-4231 RS (PR)ORDER GRANTING DEFENDANTS'MOTION FOR SUMMARYJUDGMENT14 v.15 DR. DEAN WINSLOW, et aI.,

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Defendants._________________________ 1

INTRODUCTION19 Plaintiff James Alan Bush is a prisoner in the Santa Clara County Department of20 Correction's Main Jail ("Main Jail") proceeding pro se in this civil rights action brought21 under 42 U.S.c. 1983. He alleges that defendants - Dr. Dean Winslow, Edward C.22 Flores, and Captain D. Sepulveda - violated his right to medical privacy, subjected him to a23 substantial risk of harm in violation of the Eighth Amendment, and violated his right to due24 process. Defendants move for summary judgment. For the reasons discussed below,25 defendants' motion will be GRANTED.26

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No. C 09-4231 RS (PR)ORDER GRANTING MOT. FOR SUMM. 1.


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12 Plaintiff was booked for arson, fraud, possession of stolen property, and resisting

Case3:09-cv-04231-RS Document76 Filed10/19/11 Page2of 11

BACKGROUND

3 arrest in December, 2008. (Defs.' Mot. for Summ. J . ("MSJ") at 2.) While awaiting trial, he4 was placed in the Main Jail and is housed in a protective custody unit due to his status as a5 homosexual. (First Am. CompI. ("FAC") at 3.)

On July 20, 2009, Officer Kennedy, a corrections officer at the Main Jail, announcedin front ofthe entire housing unit that plaintiff had a medical appointment at the P.A.c.E.Clinic, which treats HIV-positive patients. Plaintiff believes that approximately 90 inmatesheard this announcement. (FAC at 5-6.) Later that same day, Nurse Lynn "announced toplaintiff from her station to his cell" that she was temporarily out of Travada, but that shewould have more in the afternoon. Travada is a drug used to treat patients with HIV.Plaintiff believes that 45 inmates in the day room heard this announcement. I (FAC at 6.)

In an inmate grievance form dated the same day, plaintiff complained about the twoincidents and recommended as a solution that staff "announce nothing specific aboutanyone's meds or condition to a dorm full of inmates." (Plaintiffs Amended Opposition toMSJ ("PI. 's Am. Opp."), Ex. B.) Kennedy, the officer who made the announcement, wroteon the grievance form that he "simply read the [appointment] as it was listed. There was nointent to intentionally disclose Bush's medical status." (Id.) Kennedy referred the matter toLynn. On August 5, an unknown registered nurse wrote on the same form, "I apologize forthe untimely disclosure and I agree with your recommendation. We will counsel Nurse Lynnon the importance of maintaining [patient] confidentiality and although we will not be able todisclose the final outcome rest assured that this matter will be fully addressed." (Id.)

Plaintiff believed that inmates, having heard about his clinic appointment and thedrugs he took, were saying things about him behind his back. In a report dated January 1,2010, Sepulveda investigated plaintiffs complaint "that Officers in his unit (6C) were

IPlaintiff does not make clear how loud Lynn's announcement was or how far away herstation was from his cell.

2 No. C 09-4231 RS (PRORDER GRANTING MOT. FOR SUMM. J


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1 The party moving for summary judgment bears the initial burden of identifying those2 portions of the pleadings, discovery and affidavits which demonstrate the absence of a3 genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U . S . 317, 323 (1986). Where4 the moving party will have the burden of proof on an issue at trial, it must affirmatively5 demonstrate that no reasonable trier of fact could find other than for the moving party. On an6 issue for which the opposing party by contrast will have the burden of proof at trial, as is the7 case here, the moving party need only point out "that there is an absence of evidence to8 support the nonmoving party's case." Id. at 325.9 Once the moving party meets its initial burden, the nonmoving party must go beyond

C I : I 10 the pleadings and, by its own affidavits or discovery, "set forth specific facts showing thatt : : ] 11 there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The court is only concerned with= : . . : : :U 8 12 disputes over material facts and "factual disputes that are irrelevant or unnecessary will not

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1 I. Mootness2 Plaintiff seeks (1) a declaration that defendants violated his right to privacy,

and (2) injunctions enjoining defendants from disclosing inmates' private medicalinformation, requiring defendants to inform inmates of their rights, and enjoining them fromestablishing safeguards to protect inmate privacy. (FAC at 13-14; Am. Opp. at 9.) Plaintiffhas received such relief already. The record shows that defendants admitted that thedisclosure was improper, and issued directives to prevent future disclosures. As for theinjunctions regarding the rights of other inmates, plaintiffhas made no showing that otherpatients' rights are or were being violated. Therefore, there is no relief the Court can grantthat will be effective.

Under Article III of the Constitution, a "case or controversy" must exist in order for afederal court to have jurisdiction over a matter. PUC v. FERC, 100 F.3d 1451, 1458 (9th Cir1996). A claim loses its character as a live controversy, and is considered moot, if noeffective relief can be granted due to subsequent developments. See Flast v. Cohen, 392 U.S83,95 (1968). Here, plaintiffhas already received precisely the type of relief he seeks fromthe court. After plaintiff filed this action, defendants directed jail staff to speak generallyabout inmate appointments so as to avoid divulging confidential information. This isprecisely the relief plaintiff seeks. (FAC at 13-14.) Consequently, his controversy is moot,and thus no longer "live," rendering this court without jurisdiction.

That may not be the end of the matter, however. Voluntary cessation of the grievedaction may not render a case moot if there is a reasonable expectation that the wrong will berepeated. See PUC, 100 F.3d at 1460. Where prison policy is being challenged, and a newpolicy is put in place that would otherwise remedy the violation, a case is not moot if theprison has a history of violations and the new policy is vague. See Gluth v.Kansas, 951 F.2d1504, 1507 (9th Cir. 1991). Here, plaintiff has presented no evidence of a history ofviolations. Plaintiff asserts that inmates' names are "always listed and spoken in conjunctionwith the name of the clinic," but plaintiff presents evidence of only a single occurrence,

5 No. C 09-4231 RS CPRORDER GRANTING MOT. FOR SUMM. J


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3 As a reminder, inmate medical information is confidential and may not beshared with anyone. Inmates who are required to attend medical appointmentsor clinics shall be advised by the housing unit officer in private or by usinggeneral terms, such as[,] "[Y]ou have an appointment." Staff must not makegeneral announcements in housing units to advise an inmate they have medicalappointments or clinics, nor shall they use the name of the type of appointmentor clinic.

Case3:09-cv-04231-RS Document76 Filed10/19/11 Page6 of 11

1 which is not sufficient to show a history of violations.' Additionally, the policy statement in2 Flores's letter is not vague:

4567 (Pl.'s Am. Opp., Ex. C.) Flores's letter squarely addresses plaintiffs concerns about patient8 confidentiality. Because plaintiff has already obtained the relief he wants, and because there9 is no reasonable expectation that the wrong will be repeated, his claims are moot.10 Accordingly, all of plaintiffs claims are DISMISSED as to all defendants for want of11 jurisdiction.12 II.13

MeritsA. Supervisory Liability

14 Even if this court had jurisdiction, plaintiffs claims would fail on the merits. Plaintiff15 claims that defendants Flores, Sepulveda, and Winslow "were aware of, and acquiesced in,16 the unconstitutional conditions of plaintiffs confinement." (FAC at 10.)17 As a prerequisite for 1983 liability, the defendant must have caused the alleged18 violation. See Estate of Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999).19 Plaintiff provides no evidence to show that defendants caused the alleged deprivation of his20 constitutional rights. The relevant actors in the July 20 incident were Lynn and Kennedy,21 who are not named as defendants, Plaintiff appears to suggest that Sepulveda and Flores are22 liable as supervisors for the actions of their subordinates; however, there is no respondeat,23 superior in a 1983 claim. Liability for supervisors exists under 1983 only if a supervisor24 "participated in or directed the violations, or knew of the violations and failed to act to25 prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Plaintiffs own evidence26

272 Plaintiff also claims that these issues apply to one other inmate but gives no explanation28 about what specifically happened to the other inmate. CPl.'s Am. Opp., Ex. A.)

6 No. C 09-4231 RS (PRORDER GRANTING MOT. FOR SUMM. J


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order granting defendants' motion for summary judgment

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