Amended Civil Complaint Against Defendant Dean Winslow, M.D., et al.
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Transcript of Amended Civil Complaint Against Defendant Dean Winslow, M.D., et al.
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FIRST AMENDED COMPLAINT PAGE 1 OF 11 09-cv-04231 (PR) RS
COMES NOW, James Alan Bush, plaintiff in the above-captioned matter, by
and through his counsel of record, in pro per, and upon information and
belief, states and alleges as follows:
INTRODUCTION
1. Plaintiff brings this action pursuant to Title 42 U.S.C.A. § 1983
seeking declaratory and injunctive relief for deprivation under color
of state law of the rights, privileges, and immunities secured to him
by the United States Constitution, and, in particular, the Fourth,
Fifth, Eighth, and Fourteenth Amendments thereof.
James Alan Bush (DWF967-08086698)885 North San Pedro AvenueSan Jose, California 95110
Plaintiff in pro per
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
James Alan Bush,
Plaintiff,
v.
Dr. Dean Winslow, M.D., et al.,
Defendants.
Case No. 09-cv-04231 (PR) RS
FIRST AMENDED COMPLAINT
DEMAND FOR JURY TRIAL
[Title 42 U.S.C.A. § 1983]
Judge Richard Seeborg
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FIRST AMENDED COMPLAINT PAGE 2 OF 11 09-cv-04231 (PR) RS
2. Plaintiff specifically seeks relief from unconstitutional conditions
at the Santa Clara County Main Jail which violate plaintiff’s right to
medical privacy and his due process right to security and safety.
JURISDICTION
3. This action is filed pursuant to Title 42 U.S.C.A. § 1983 seeking
redress of injuries suffered by plaintiff for deprivation under color
of state law of rights secured by the Fourth, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution. Accordingly,
jurisdiction is proper in this Court pursuant to Title 28 U.S.C.A. §§
1331 and 1343(a)(3).
VENUE
4. Venue is proper in the United States District Court, Northern District
of California, San Jose Division, pursuant to Title 28 U.S.C.A. § 1391,
because al of the defendants reside in this district, and the acts
giving rise to this lawsuit occurred in this district.
INTRADISTRICT ASSIGNMENT
5. This lawsuit should be assigned to the San Jose Division because the
events giving rise to this lawsuit occurred in Santa Clara County.
PARTIES
6. Plaintiff, James Alan Bush, currently is, and has been, a pretrial
detainee at the Santa Clara County Main Jail since December
13th, 2008, who is housed in a protective custody unit due to his
classification as a homosexual. Plaintiff is also being treated for
HIV/AIDS at the aforementioned institution.
7. Defendant, Edward C. Flores, Chief of Correction for the County of
Santa Clara Department of Correction, is and was at all times relevant
ultimately responsible for the administrative and policymaking of the
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FIRST AMENDED COMPLAINT PAGE 3 OF 11 09-cv-04231 (PR) RS
Santa Clara County Main Jail.
8. Santa Clara County Main Jail is a multiple-level security institution
that segregates homosexual inmates from the general population by
placing them in separate protective custody units.
9. Defendant, Captain D. Sepulveda, is and was at all times relevant
responsible for the day-to-day management of the aforementioned
institution and takes part in establishing and enforcing the policies
and rules of the institution.
10. Defendant, Dr. Dean Winslow, M.D., is a private physician under
contract to provide obligatory medical services to the aforementioned
institution, and is employed by the P.A.C.E. Clinic.
11. P.A.C.E. Clinic provides exclusive treatment to HIV-positive inmates at
the aforementioned institution, and is a subcontractor for Santa Clara
Valley Health & Hospital System Adult Custody Health Services.
12. Santa Clara Valley Health & Hospital System Adult Custody Health
Services provides exclusive medical, dental, and mental health
services to inmates at the aforementioned institution.
13. At all times relevant herein, defendants were “persons” for purposes
of Title 42 U.S.C.A. § 1983, and acted under color of law to deprive
plaintiff of his constitutional rights, as set forth more fully below.
COUNT I (VIOLATION OF MEDICAL PRIVACY)
14. Defendant, Dr. Dean Winslow, M.D., as head of the P.A.C.E. Clinic,
was aware of, and acquiesced in, the unconstitutional conditions
of plaintiff’s confinement at the aforementioned institution as set
forth below. Defendant Winslow was directly responsible for said
unconstitutional conditions. Defendant Winslow therefore subjected or
caused plaintiff to be subjected to unconstitutional conditions, and
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FIRST AMENDED COMPLAINT PAGE 4 OF 11 09-cv-04231 (PR) RS
demonstrated deliberate indifference.
15. Private medical information is being improperly disclosed by Defendant
Winslow and medical staff to jail staff, and by jail staff to inmates,
that pertains to inmates being treated by the P.A.C.E. Clinic, which is
known to jail staff and inmates alike for its exclusive treatment of
HIV-positive patients. Disclosure is made in the following manner:
a) Defendant Winslow and medical staff publish a list of inmates
having scheduled appointments with the P.A.C.E. Clinic, who then
distribute the list to correctional officers; and,
b) Correctional officers make a broad announcement for each inmate
on the list whenever an inmate is scheduled to visit the P.A.C.E.
Clinic to the dormitory that houses the inmate, which contains up
to 95 other inmates.
The name of an inmate is always listed or used in conjunction with
the name of the aforementioned clinic, both on the list and in the
announcement; it is by the association of the inmate’s name with that
of the clinic that his HIV-positive status is made known to jail staff
and other inmates.
16. On July 20th, 2009, Defendant Winslow and medical staff published a
list of inmates who were scheduled to visit the P.A.C.E. Clinic and
then distributed the list to jail staff; the name of the plaintiff and
the name of the clinic appear in conjunction with each other on the
list [see Exhibit “A”].
17. Once the list was routed to the unit in which the plaintiff was
housed, Correctional Officer Kennedy (#2478) made a broad, down-wide
announcement that plaintiff had a P.A.C.E. Clinic appointment, which
was heard, and was intended to be heard, by every inmate in the unit
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FIRST AMENDED COMPLAINT PAGE 5 OF 11 09-cv-04231 (PR) RS
(approximately 90 inmates).
18. On that same day, the pill-call nurse on duty, Nurse Lynn, having
exhausted her supply of Truvada, a common HIV-treatment drug,
announced to plaintiff from her station to his cell that his “Truvada
[would] be here this afternoon,” which was overhead by as many as 45
inmates who were occupying the dayroom at the time the announcement
was made.
19. Plaintiff immediately expressed his concern for the disclosure of his
medical condition by submitted a grievance form to C.O. Kennedy, which
read:
C.O. Kennedy made a dorm-wide announcement that I had a P.A.C.E.
Clinic appointment, which is the equivalent of disclosing
someone’s HIV status to 90 people (simply saying “medical” is
better); Nurse Lynn shouted from her station to my cell door that
she would bring my Truvada this afternoon, which may be known
to inmates as Hepatitus/HIV meds (saying this while I’m at her
station is better).
Plaintiff then recommended the following solution:
Announce nothing specific about anyone’s meds or condition.
A copy of the grievance form is attached hereto as Exhibit “B” and is
made a part hereof.
20. In her same day reply to plaintiff, C.O. Kennedy acknowledged the
disclosure and then stated that the aforedescribed list from Defendant
Winslow and medical staff was the source of the information concerning
plaintiff. To-wit:
Inmate medical appointment sheet stated ‘P.A.C.E. Clinic.’ I
simply read the appt. as it was listed. There was no intent to
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FIRST AMENDED COMPLAINT PAGE 6 OF 11 09-cv-04231 (PR) RS
intentionally disclose your medical status. Refer to medical (RN
Lynn) for further.
21. Two days later, on or around July 22nd, 2009, plaintiff submitted a
second grievance, reiterating his concern for the violation of privacy
and expressing concern for his safety. To-wit:
On July 20th, 2009, @ 2:05 PM, I submitted a grievance, which read,
in part, as follows:
“C.O. Kennedy made a dorm-wide announcement that I had a P.A.C.E.
Clinic appointment, which is the equivalent of disclosing
someone’s HIV status to over 90 people. Simply saying medical is
better.”
I recommended the following solution:
“Announce nothing specific about anyone’s condition.”
On the same day (@ 2:09 PM), C.O. Kennedy responded accordingly:
“[The] inmate medical appointment sheet stated, ‘P.A.C.E. Clinic.’
I simply read the appt. as it was listed. There was no intent to
intentionally disclose your medical status.” In furtherance of my
grievance, I add the following:
C.O. Kennedy states in her response to my grievance that she
merely read from a document that said, “P.A.C.E. Clinic.” While
I do not dispute this fact, I do have issue with the manner of
delivery, which was a loud, dorm-wide announcement, that employed
my name, to over 90 people.
What I’m suggesting is this: if a broad announcement must be made
in regards to medical appointments—be it even “mental health”—the
word, “medical,” should be used as a catch-all. The specific type
of medical appointment can be later related to an inmate once the
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FIRST AMENDED COMPLAINT PAGE 7 OF 11 09-cv-04231 (PR) RS
inmate has reported to the C.O. when they are inclose proximity
to each other. To illustrate: a nurse would never announce the
medical condition a patient is being treated for to a waiting room
full of other patients; rather, the nurse would simply state, “The
doctor will see you now.”
Similarly, a C.O. should not disclose the medical condition that
has a stigma attached to it from which an already stigmatized
inmate may suffer (that is, a homosexual inmate), especially to
an inmate population that it is known for a propensity towards
prejudice and violence against gays.
Gays are placed in protective custody for the very fact that
they are gay; and, that as such, they have been, historically,
maltreated. Therefore, my grievance not only concerns my privacy;
but, my safety, as well.
Finally, in further regards to C.O. Kennedy’s response: I am not
claiming that her act was intentional; but, rather, that it was a
reckless one. I am not seeking a reprimand; rather, to satisfy my
grievance, a blanket policy of discretion when making dorm-wide
announcements in order to ensure privacy & security would suffice.
22. On August 13th, 2009, medical staff further acknowledged the violation
of plaintiff’s medical privacy, and, although they stated their
intention to address the incident, they failed to institute safeguards
against future incidents of disclosure [see Exhibit “B”]. To-wit:
I apologize for the untimely disclosure and I agree with your
recommendation. We will counsel Nurse Lynn on the importance of
maintaining [patient] confidentiality and although we will not be
able to disclose the final outcome, rest assured that this matter
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FIRST AMENDED COMPLAINT PAGE 8 OF 11 09-cv-04231 (PR) RS
will be fully addressed.
Although the name of the person who wrote the above is not legible,
the title reads, “RN”, which indicates that the response is from
medical staff.
COUNT II (DUE PROCESS)
23. Defendants Flores and Sepulveda, as Chief of Correction and Captain
of the Santa Clara County Department of Correction, respectively,
were aware of, and acquiesced in, the unconstitutional conditions
of plaintiff’s confinement at the Santa Clara County Main Jail as set
forth below, and failed to take necessary and appropriate action.
Defendants therefore subjected or caused plaintiff to be subjected to
unconstitutional conditions, and demonstrated deliberate indifference.
24. Defendants Flores and Sepulveda in deliberate disregard of plaintiff’s
constitutional right to privacy discussed plaintiff’s grievances with
jail staff, which was made evident when plaintiff was approached by
two correctional officers in regards to the grievances, who were not
otherwise authorized or privileged to discuss his grievance with him.
25. Defendants Flores’ and Sepulveda’s deliberate indifference to
plaintiff’s request that defendants cease from further disclosure
of his HIV-positive status constituted a violation of plaintiff’s
constitutional right to privacy.
26. By inadvertently disclosing plaintiff’s HIV-positive status to over
90 other inmates, Defendants Flores and Sepulveda knowingly exposed
plaintiff to a pervasive risk of harm from other inmates in reckless
disregard for plaintiff’s due process right to safety as a pretrial
detainee, in that:
a) plaintiff was placed in protective custody because violence
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FIRST AMENDED COMPLAINT PAGE 9 OF 11 09-cv-04231 (PR) RS
against homosexuals is known to occur with sufficient frequency as
to warrant segregation from the general population;
b) plaintiff was put in reasonable fear for his safety due to the
stigma and prejudice associated with an HIV-positive diagnosis and
homosexuality; and,
c) plaintiff reasonably apprised defendants of an increased risk of
danger and expressed the need for adequate protective measures
in writing by submitting two grievances, which also expressed his
safety concerns.
27. Defendants Flores’ and Sepulveda’s failure to institute adequate
protective measures against a substantial risk of harm to plaintiff
amounts to a deliberate indifference to plaintiff’s safety,
in violation of the Eighth Amendment, because, after becoming
subjectively aware of an inmate’s risk, the defendants knew, or
should have known, that such measures were needed; and, by refusing
to institute protective measures after becoming aware of their need,
defendants deliberately exposed plaintiff to a strong likelihood of
violence, in violation of plaintiff’s due process rights.
28. Defendants Flores and Sepulveda in deliberate disregard of plaintiff’s
constitutional rights as herein described in this count, failed to
institute safeguards against the unwarranted disclosure of plaintiff’s
HIV-positive status to jail staff and other inmates [see Exhibit “A”
for the additional disclosure of another inmate’s HIV-positive status].
29. Defendants Flores’ and Sepulveda’s callous and deliberate indifference
to plaintiff’s request that defendants cease from disclosing his and
other inmates’ HIV-positive status resulted in a heightened sense of
danger and a palpable increase in vulnerability to attack by other
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FIRST AMENDED COMPLAINT PAGE 10 OF 11 09-cv-04231 (PR) RS
inmates and constituted a violation of plaintiff’s constitutional right
to be free from exposure to an increased risk of danger.
NO ADEQUATE REMEDY AT LAW
30. As a proximate result of the defendants’ policies, practices,
customs, procedures, acts, and omissions, plaintiff has suffered
and will continue to suffer irreparable injury and harm, including
psychological and emotional injury due to exposure to an increased
risk of harm by the reckless conduct of the defendants. Plaintiff’s
psychological health and well-being will continue to deteriorate
during his confinement due to the conditions herein described.
Plaintiff has no plain, adequate, or complete remedy at law to redress
the wrongs herein described. Plaintiff will continue to be irreparably
harmed and injured unless the Court grants the injunctive relief that
plaintiff seeks.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays for relief as follows:
1. That the Court determine and enter judgment declaring that the
acts and omissions of the defendants, as set forth above, violate
plaintiff’s right to privacy and his due process right to security and
safety as a pretrial detainee as secured by the Fourth, Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution;
2. That upon hearing, the Court issue a preliminary and permanent
injunction:
a) enjoining the defendants, their employees, agents, and successors
in office from the improper disclosure of an inmate’s HIV-positive
diagnosis;
b) enjoining the defendants and their successors in office from
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FIRST AMENDED COMPLAINT PAGE 11 OF 11 09-cv-04231 (PR) RS
failing to instruct, supervise, and train their employees and
agents in such a manner as to assure the privacy of an inmate’s
HIV-positive status;
c) enjoining the defendants and their successors in office from
failing to inform current and future inmates of their rights, as
established by this Court in its declaration; and,
d) enjoining the defendants and their successors in office from
failing to establish safeguards against the inadvertent disclosure
of an inmate’s HIV-positive status;
3. For costs of suit herein incurred; and,
4. For such other and further relief as the Court may deem proper.
Dated: April 15th, 2010
James Alan BushPlaintiff in pro per
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EXHIBIT A PAGE 1 OF 1 09-cv-04231 (PR) RS