SUSAN ILLSTON, United States District Judge.
Defendant Dottie Beard is dismissed from this action. Judgment is entered in favor of all other defendants and against plaintiff.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
George L. Howell, an inmate at Mule Creek State Prison, filed this civil rights action under 42 U.S.C. § 1983. This case is now before the Court for consideration of defendants' motion for summary judgment. For the reasons discussed below, defendants' motion for summary judgment will be granted.
BACKGROUND
This case concerns alleged lack of medical treatment and care during plaintiff's incarceration at the Del Norte County Jail. Unless otherwise noted, the following facts are undisputed:
During the time when Howell was incarcerated there, the Del Norte County Jail had a set policy and procedures for medical and mental health care of its inmates. The policy included protocols for the identification of signs and symptoms of alcoholic and suicidal behavior. The policy manual also provided that "medical . . . and mental health matters involving clinical judgment are the sole province of the responsible physician . . . and psychiatrist or psychologist respectively." Luis Decl. Exh. B. The specific medical treatment protocol for alcohol withdrawal was developed and implemented by jail medical staff.
The accepted alcohol detoxification protocol in the Del Norte County community — which is also the protocol used at Del Norte County Jail — involves giving the patient an anti-anxiety medication, such as Librium or Ativan, multivitamins and minerals. The patient also is given fluids and instructed to cat food, if possible. An individualized treatment program for alcohol detoxification is set up for each patient. Dr. Higgins, the jail medical director and chief of staff at a local hospital, opined that, in his experience, most patients need the medication for three days after withdrawal from alcohol, although the treatment protocol can continue for seven days in some rare cases.
Howell was arrested on May 28, 1998, and taken to the Del Norte County Jail. An initial inmate medical screening was performed that day by the booking officer. It was noted on the screening form that Howell appeared to be under the influence of alcohol or drugs and that he exhibited signs of alcohol or drug withdrawal. It was specifically noted on the form that Howell may have been experiencing delirium tremens ("DT's"). Howell was placed on suicide watch and jail staff observed him approximately every thirty minutes for several weeks.
The jail medical staff started Howell on an individualized detoxification program on the day of his arrest. The detoxification program prescribed for Howell included Librium (an anti-anxiety medication), multivitamins, thiamin, and minerals (calcium, magnesium, and zinc) twice per day. Librium is used to treat anxiety, DT's, and other symptoms of alcohol withdrawal. Howell refused to take his medications on May 30, 1998. On May 31, 1998, he took only the Librium. The medications were discontinued on June 1, 1998, except for the multivitamin, which was prescribed the entire time Howell was incarcerated at the Del Norte County Jail.
Soon after his incarceration at the Del Norte County Jail, Howell refused to eat and began a hunger strike. Jail staff urged Howell to eat, drink and take his medications. During his hunger strike, jail and medical staff monitored Howell's weight and food intake.
Howell was evaluated by a mental health specialist on May 28, 1998, the day of his arrest. In the specialist's report, she noted that Howell stated that he felt like killing himself. She recommended that Howell remain on suicide watch and that he be reevaluated the following day. Jail staff continued to check on Howell approximately every thirty minutes. Howell was reevaluated by another mental health specialist on May 29, 1998. Howell admitted to continued suicidal ideation and the specialist kept Howell on suicide watch, with jail staff monitoring Howell every thirty minutes. These twice-hourly observations, dating from May 28, 1998 to June 21, 1998, were noted in a special log.
Howell was next seen by a mental health specialist on June 4, 1998. The specialist noted that Howell was still refusing to eat and that he wanted "it to be over." Howell continued to remain on suicide watch. On June 5, 1998, Howell was examined by the medical staff and Dr. Higgins prescribed Elavil, an anti-depressant, for Howell. On June 11, 1998, Dr. Higgins prescribed Paxil, another anti-depressant.
Howell was seen by a mental health counselor on June 12, 1998. Howell stated to the counselor that he was now eating and taking his medications. The counselor suspected some manipulation by Howell, but was not willing to test him. The counselor recommended that Howell remain on suicide watch.
On June 14, 1998, the jail staff noted that Howell began acting disoriented. Howell was evaluated by the medical staff the following day and Dr. Higgins discontinued the Elavil. The jail staff was ordered to encourage Howell to take fluids. On June 16, Dr. Higgins examined Howell and discontinued the Paxil. Howell was next examined on June 25, 1998, by jail medical staff and mental health staff. Both reported that Howell did not have suicidal ideation upon examination. It was recommended that Howell be taken off suicide watch and housed with the general jail population.
On July 14, 1998, Howell was removed from the general population and placed on suicide watch for a brief period of time. At the time, Howell admitted suicidal ideation and symptoms of depression. He was released from suicide watch after approximately two hours. Howell was transferred to state prison on August 27, 1998.
LEGAL STANDARD FOR SUMMARY JUDGMENT
The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") The moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted). The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. Id. at 631.
DISCUSSION
A. The Law of Deliberate Indifference to Medical Needs
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Because it appears that Howell was not yet a convict at the time of the alleged incidents, his claim is considered under the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment's Cruel and Unusual Punishment Clause, although the Eighth Amendment serves as a benchmark for evaluating those claims.See Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979); Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (Eighth Amendment guarantees provide minimum standard of care for pretrial detainees). To prove that the response of jail officials to an inmate's medical needs was constitutionally deficient, the inmate must establish (1) a serious medical need and (2) deliberate indifference to that need by prison officials. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (overruled on other grounds). A medical need is serious if the failure to treat the prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. at 1059 (citingEstelle v. Gamble, 429 U.S. 97, 104 (1976)). A prison or jail official is deliberately indifferent if he knows that an inmate faces a substantial risk of serious harm and disregards that risk by failure to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1994).
A mere difference of opinion as to which medically acceptable course of treatment should be followed does not establish deliberate indifference.Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Where defendant doctors have chosen one course of action and a plaintiff contends that they should have chosen another course of action, the plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, . . . and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Id. (citations omitted).
B. Analysis of Howell's Deliberate Indifference Claim
Four defendants remain in this action: the County of Del Norte; Tony Luis, the corrections commander at the Del Norte County Jail; George Mina, the operations commander at the Del Norte County Jail; and Dottie Beard, a sergeant at the Del Norte County Jail.
1. The Individual Defendants
Liability may be imposed on an individual defendant under § 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a constitutional right within the meaning of § 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. Id. at 633. Sweeping conclusory allegations will not suffice; the plaintiff must instead "set forth specific facts as to each individual defendant's" deprivation of protected rights. Id. at 634. A supervisor may be liable under § 1983 upon a showing of (1) "personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally "is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "There is no respondeat superior liability under section 1983." Id.
Howell has not raised a triable issue of fact that Tony Luis or George Mina was deliberately indifferent to his medical needs. It is undisputed that neither Luis nor Mina had any personal contact with Howell during his incarceration at the Del Norte County Jail. Howell also has not shown any causal connection between Luis and Mina and any violation of his constitutional rights. Mina denies having made any decisions or supervising anyone who made decisions regarding Howell's incarceration, and Howell does not dispute it. Luis acknowledges receiving general staff reports regarding Howell's status, but states that he never received any information suggesting that Howell was not receiving appropriate medical and mental health attention, and Howell does not dispute it. Howell offers absolutely no evidence that either of these defendants participated in any decision about his medical care, let alone that they were deliberately indifferent to any of Howell's medical or mental health care needs. Summary judgment will be granted in favor of defendants Tony Luis and George Mina.
Sergeant Dottie Beard will be dismissed from this action because Howell states that he no longer asserts any claims against her.
2. The County of Del Norte
A local government may not be sued under 42 U.S.C. § 1983 for a constitutional violation committed by its employees or agents unless that violation is pursuant to the execution of an official policy or custom.Monell v. Dept. of Social Servs., 436 U.S. 658, 692 (1978). A plaintiff may demonstrate a policy or custom to support municipal liability in a number of ways. A plaintiff may "prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a `longstanding practice or custom which constitutes the standard operating procedure of the local government entity.'" Gilette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). A plaintiff also "may establish that the individual who committed the constitutional tort was an official with `final policy-making authority' and that the challenged action thus constituted an act of official government policy." Id. A plaintiff also "may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it."Id. at 1346-47. In some circumstances, a plaintiff also may show municipal liability by demonstrating that a municipality was deliberately indifferent to constitutional violations committed by its employees. See City of Canton v. Harris, 489 U.S. 378 (1989) (finding a § 1983 claim is possible where municipality deliberately and consciously chose not to train employees where instruction on constitutional requirements was necessary).
Howell alleges that the Del Norte County Jail's policy regarding inmate healthcare was deliberately indifferent to his serious medical needs. Del Norte County had a policy for medical and mental health care treatment of inmates at its jail. The policy included protocols for the identification of signs and symptoms of alcoholic and suicidal behavior and provided that clinical judgments regarding individual treatments were the sole province of the responsible physician, psychiatrist or psychologist. The mere existence of this policy is not enough to create liability for the county, as Howell has not shown that there was anything wrong with the policy, that anyone violated his constitutional rights simply by following the policy, or that anyone following the policy violated his constitutional rights. Howell has failed to raise a triable issue of fact that his rights were violated by anyone acting pursuant to a policy or custom of Del Norte County. He also has not shown that there was anything problematic with the alcohol detoxification protocol followed in the jail, which mirrored that followed in the Del Norte County community, i.e. a three- to seven-day course of treatment that consisted of giving the patient an anti-anxiety medication, multi-vitamins and minerals, giving the patient fluids and instructing him to eat food, if possible.
Howell complains that he was not seen by a licensed psychiatrist during his incarceration. He argues that because he suffered from depression related to his alcohol withdrawal and that because he was suicidal, he should have been seen by a licensed psychiatrist and that tests should have been performed to rule out Korsakoff's psychosis and Wernicke syndrome. Instead, Howell was given Librium, multivitamins, thiamin and minerals, observed by jail and medical staff and evaluated by mental health specialists. Howell's mere belief unsupported by any competent evidence, that he should have been treated a particular way does not mean that the course of treatment that he did receive amounted to deliberate indifference. Howell has not raised a triable issue of fact that Del Norte County's policy, in theory or as applied to him, was medically unacceptable under the circumstances nor has he shown that the course of treatment chosen by the jail medical staff was in conscious disregard of an excessive risk to his health. Howell merely has a difference in opinion as to how he should have been treated and that is not enough to establish deliberate indifference. See Jackson v. McIntosh, 90 F.3d at 332. Defendants presented substantial and undisputed evidence that they provided significant and medically acceptable care for Howell. Summary judgment will be granted in favor of the County of Del Norte.
Sufferers from both of these conditions are usually chronic alcoholics. Although Howell mentions Korsakoff's psychosis and Wernicke syndrome, he does not state whether he had either or wanted to be tested to see if he had either. It may be that he believes these two diseases explain the disorientation he experienced in mid-June, but he has provided no competent evidence to raise a triable issue of fact that deliberate indifference is shown by the medical staff's assessment that his disorientation was due to a build-up of anti-anxiety medication in his system or the staff's termination of the anti-anxiety drugs, which was followed be a return to normal behavior for Howell.
C. Howell's Efforts to Add New Defendants
In his Opposition, Howell requested that Dr. Greg Higgins, Physician's Assistant Howard Croy, Registered Nurse James Phillips, Deputy District Attorney Michael D. Riese, along with Gene Schach, Howell's former counsel, be added as defendants in this case.
The first group of proposed defendants are those persons who actually provided medical care to Howell at the jail. As stated above, Howell's difference in opinion as to how he should have been medically treated is not enough to prove that the medical staff or the policy they followed was deliberately indifferent to his serious medical needs. There is not a whit of evidence in the record suggesting that Howell did not receive adequate medical care during his incarceration at the Del Norte County Jail. Howell now wants to bring in a different set of defendants to try his claims out against them, with no hint of what they did that warrants dragging them into this action. Howell will not be permitted to amend his complaint to add these defendants because it appears to be a futile gesture (since there is no indication of deliberate indifference byanyone) and because it appears to be a case in which the plaintiff is simply "maneuvering desperately to stave off the immediate dismissal of the case." Cowen v. Bank United of Texas, 70 F.3d 937, 944 (7th Cir. 1995). In denying leave to file an amended complaint, the court does not rely on defendants' statute of limitations argument as it appears to ignore the tolling provision in California Code of Civil Procedure § 352.1.
The second group of proposed defendants consists of Deputy District Attorney Riese and defense attorney Schach. Howell's papers suggest no cognizable § 1983 claim against either of them. Nowhere in his papers does Howell indicate how either Riese or Schach were connected to the medical treatment he received while incarcerated in the Del Norte County Jail. Howell does make vague references that Riese and Schach withheld exculpatory material, but that claim has no relationship to his claim that the medical and jail staff were deliberately indifferent to his serious medical need.
Howell's claim that Riese and Schach withheld evidence and violated his due process rights in a criminal case is barred by the rule of Heck, which provides that one may not bring an action for damages under § 1983 for a wrongful conviction or sentence or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, unless that conviction or sentence has been determined to be wrongful. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). A conviction or sentence may be determined to be wrongful by, for example, being reversed on appeal or being set aside when a state or federal court issues a writ of habeas corpus. See id. The Heck rule also prevents an inmate from bringing an action that, even if it does not directly challenge the conviction or sentence, would imply that the conviction or sentence was invalid. The practical importance of this rule is that the conviction or sentence cannot be attacked in the § 1983 action for damages; the conviction or sentence must have been successfully attacked before the § 1983 action for damages is filed. If successful, Howell's claims that his due process rights were violated because Riese and Schach withheld exculpatory material would imply that his conviction and sentence was wrongful. He has not yet successfully challenged his conviction or sentence. Indeed, he appears to recognize as much, because he asks that his complaint be "set aside" without prejudice so that he may file a petition for habeas corpus, apparently to pursue the evidence claims. Granting summary judgment to existing defendants will not bar Howell from filing his habeas petition, so the Court will deny the motion to "set aside" this case.
CONCLUSION
For the foregoing reasons, (1) Sergeant Dottie Beard is dismissed from this action, (2) defendants' motion for summary judgment is GRANTED (docket # 13) and (3) plaintiff's motion to set aside this case is DENIED (docket # 23). Judgment will be entered in favor of defendants and against plaintiff.