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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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

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. FIRST AMENDED COMPLAINT PAGE 1 OF 11 09-cv-04231 (PR) RS

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2.

Plaintiff specifically seeks relief from unconstitutional conditions at the Santa Clara County Main Jail which violate plaintiffs 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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Santa Clara County Main Jail. 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. 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 plaintiffs 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 FIRST AMENDED COMPLAINT PAGE 3 OF 11 09-cv-04231 (PR) RS

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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 inmates 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 FIRST AMENDED COMPLAINT PAGE 4 OF 11 09-cv-04231 (PR) RS

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(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 someones 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 Im at her station is better). Plaintiff then recommended the following solution: Announce nothing specific about anyones 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 FIRST AMENDED COMPLAINT PAGE 5 OF 11 09-cv-04231 (PR) RS

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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 someones HIV status to over 90 people. Simply saying medical is better. I recommended the following solution: Announce nothing specific about anyones 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 Im suggesting is this: if a broad announcement must be made in regards to medical appointmentsbe it even mental healththe word, medical, should be used as a catch-all. The specific type of medical appointment can be later related to an inmate once the FIRST AMENDED COMPLAINT PAGE 6 OF 11 09-cv-04231 (PR) RS

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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. Kennedys 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 plaintiffs 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 FIRST AMENDED COMPLAINT PAGE 7 OF 11 09-cv-04231 (PR) RS

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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 plaintiffs 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 plaintiffs constitutional right to privacy discussed plaintiffs 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 Sepulvedas deliberate indifference to plaintiffs request that defendants cease from further disclosure of his HIV-positive status constituted a violation of plaintiffs constitutional right to privacy. 26. By inadvertently disclosing plaintiffs 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 plaintiffs due process right to safety as a pretrial detainee, in that: a) plaintiff was placed in protective custody because violence PAGE 8 OF 11 09-cv-04231 (PR) RS

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against homosexuals is known to occur with sufficient frequency as to warrant segregation from the general population; plaintiff was put in reasonable fear for his safety due to the stigma and prejudice associated with an HIV-positive diagnosis and homosexuality; and, 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 Sepulvedas failure to institute adequate protective measures against a substantial risk of harm to plaintiff amounts to a deliberate indifference to plaintiffs safety, in violation of the Eighth Amendment, because, after becoming subjectively aware of an inmates 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 plaintiffs due process rights. 28. Defendants Flores and Sepulveda in deliberate disregard of plaintiffs constitutional rights as herein described in this count, failed to institute safeguards against the unwarranted disclosure of plaintiffs HIV-positive status to jail staff and other inmates [see Exhibit A for the additional disclosure of another inmates HIV-positive status]. 29. Defendants Flores and Sepulvedas callous and deliberate indifference to plaintiffs 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 FIRST AMENDED COMPLAINT PAGE 9 OF 11 09-cv-04231 (PR) RS

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inmates and constituted a violation of plaintiffs 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. Plaintiffs 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 plaintiffs 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; 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 inmates HIV-positive diagnosis; b) enjoining the defendants and their successors in office from PAGE 10 OF 11 09-cv-04231 (PR) RS

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failing to instruct, supervise, and train their employees and agents in such a manner as to assure the privacy of an inmates HIV-positive status; 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, enjoining the defendants and their successors in office from failing to establish safeguards against the inadvertent disclosure of an inmates HIV-positive status; For costs of suit herein incurred; and, For such other and further relief as the Court may deem proper.

Dated: April 15th, 2010

James Alan Bush Plaintiff in pro per

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 1 OF 1 09-cv-04231 (PR) RS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT B PAGE 1 OF 1 09-cv-04231 (PR) RS