FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 74) FOURTEEN (14) DAY OBJECTION DEADLINE

MICHAEL J. SENG, Magistrate Judge.

I. Procedural History

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 1 & 5.) The action proceeds against Defendants Garcia, Goss, Trevino, Isira, and Coffin on Plaintiff's First Amendment retaliation claim, and against Defendant Isira on Plaintiff's Eighth Amendment medical indifference and state law negligence claims.

Before the Court is Defendants' April 20, 2015 motion for summary judgment. (ECF No. 74.) Plaintiff filed an opposition (ECF No. 81), and Defendants filed a reply (ECF No. 83).

Thereafter, the Court granted the parties' request to extend the discovery cut-off and granted Plaintiff leave to file a supplemental opposition after receiving additional discovery. (ECF No. 84.) Plaintiff filed his supplemental opposition on September 4, 2015. (ECF No. 100.) Defendants filed a reply (ECF No. 101) and objections to some of Plaintiff's evidence (ECF No. 102). Plaintiff responded to Defendants' objections. (ECF No. 103.)

These matters are submitted. Local Rule 230(l).

II. Plaintiff's Claims

This action proceeds on Plaintiff's second amended complaint against Defendants Raymond Coffin, Chief of Mental Health; Clinician Rocio Garcia, M.S.W.; Lillian Goss, L.P.T.; Clinician Victor Trevino, M.S.W.; and Abdul Isira, Psy.D. Plaintiff complains of acts that occurred at California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California.

Plaintiff alleges that Defendants Garcia, Goss, and Trevino retaliated against him for filing a staff complaint against non-party Correctional Officers and for writing a complaint letter to the Warden. According to Plaintiff, these Defendants wrote fabricated reports, CDC-128 chronos, and CDCR-115 Rules Violation Reports ("RVRs") designed to force Plaintiff's transfer out of G-1 Facility. As a result, Plaintiff eventually was transferred to an overcrowded gym where his mental health condition could not be effectively treated or accommodated. There, Plaintiff came under the care of Defendant Isira. Isira, in concert with the other Defendants, retaliated against Plaintiff by intentionally falsifying medical records, misdiagnosing Plaintiff, providing unacceptable mental health care, and terminating Plaintiff's Enhanced Outpatient Program ("EOP") level of care. Defendant Coffin was aware of this retaliation but failed to act to prevent it.

The Court screened Plaintiff's second amended complaint and concluded that Plaintiff successfully pleaded a cognizable retaliation claim against Defendants Garcia, Goss, Trevino, and Isira based on allegations that they were aware of his staff complaints and grievances and, shortly after becoming aware, made false reports designed to remove him from the EOP unit and the EOP level of care. (ECF Nos. 26 and 28.) The Court also found that Plaintiff pleaded a cognizable retaliation claim against Defendant Coffin based on the allegation that Coffin was aware of retaliatory conduct by his subordinates and failed to respond and prevent further retaliation, notwithstanding having the opportunity to do so.

The Court additionally concluded that Plaintiff pleaded cognizable medical indifference and state law negligence claims against Defendant Isira based on the allegations that Isira intentionally misdiagnosed Plaintiff so as to cause Plaintiff's EOP level care and treatment to be terminated.

III. Undisputed Facts

Plaintiff's opposition and supplemental opposition total over one hundred pages plus approximately five hundred additional pages of exhibits. Therein, Plaintiff discusses multiple issues not pertinent to this litigation. As previously stated, Plaintiff's second amended complaint was found to state cognizable retaliation claims against Defendants Garcia, Goss, Trevino, Isira, and Coffin, and medical indifference and medical negligence claims against Defendant Isira. Plaintiff has not stated a cognizable medical indifference claim against Defendants Garcia, Goss, Trevino or Coffin, and facts relating to such potential claims will not be considered or addressed here. Likewise, assertions that these Defendants did not maintain a therapeutic relationship with Plaintiff or keep his confidences are not at issue here. Plaintiff's claims that these Defendants were not properly licensed are similarly irrelevant. Finally, Plaintiff goes on at some length about how Defendants disliked him, held his underlying criminal offenses against him, and did not believe his claims of innocence. He expresses concern that his once close relationship with Defendant Garcia deteriorated and Defendant Garcia began to prefer the company of other inmates. None of these allegations address matters of constitutional import or relate to whether Plaintiff was retaliated against for engaging in protected conduct. They will not be discussed further.

With the foregoing in mind, and unless otherwise stated, the Court finds the following facts to be undisputed.1

A. Transfer to CSATF

Plaintiff arrived at CSATF on June 7, 2010 and was placed in the Enhanced Outpatient Program ("EOP")2 in the G-1 Facility. According to Plaintiff, he enjoyed a positive relationship with mental health staff — and particularly with Defendant Garcia — during this time, even though, he alleges, much of his mental health care was inadequate. However, on January 19, 2011, Plaintiff was involved in an altercation with another inmate. The incident resulted in correctional officers using force against Plaintiff and Plaintiff's placement in Administrative Segregation and/or medical housing. Plaintiff filed a staff complaint against the involved correctional officers.3 Plaintiff was released back to Facility G-1 on March 24, 2011.

B. Return to Facility G-1

Following his return to Facility G-1, Plaintiff had numerous uneventful encounters with Defendants Trevino, Garcia, and Goss throughout April and May of 2011. Trevino saw Plaintiff for mental health visits and noted that Plaintiff expressed hostility toward custody staff. (ECF No. 74-2 at 59-77.) Plaintiff participated in group sessions with Garcia and had other interactions with Goss in April and May of 2011 without incident. (E.g., ECF No. 81-1 at 9-10, 16-17.) According to Plaintiff, on May 25, 2011, he received the second level response to his appeal regarding the January 19, 2011 incident. Garcia was present when he received the response and laughed. Plaintiff states that Garcia's mood toward Plaintiff changed after this date.

In early June 2011, Plaintiff began to have difficulties with mental health staff and particularly with Defendant Garcia. According to Plaintiff, he confronted Garcia in early June regarding what he perceived as her misconduct. Specifically, Plaintiff believed Garcia was misusing state computers and was overfamiliar with certain "pet" inmates. Plaintiff contends that he warned Garcia that she needed to be careful or she would be caught. According to Plaintiff, Garcia reacted to this information with anger and abruptly terminated the conversation. Plaintiff claims that, subsequently, during a June 4, 2011 group session, Garcia lashed out at Plaintiff when he attempted to present a philosophical paper he had written.

Defendant Trevino saw Plaintiff on June 7, 2011 and noted that Plaintiff was angry and agitated and had complaints regarding mental health staff. According to Trevino, Plaintiff stated, "I feel that staff should be able to talk to me like a friend . . . like a human being." Trevino advised Plaintiff that "he needs to mind staff boundaries." (ECF No. 74-2 at 78.) Plaintiff contends that these notes misrepresent his statements. He states that he attempted to discuss his difficulties with Garcia during the session, but Trevino was not interested in Plaintiff's side of the story.

Defendant Garcia claims to have written the following 128 chrono regarding her encounters with Plaintiff in early June. The chrono itself is not in the record; however an email from Garcia to Defendant Isira on June 30, 2011 purported to relay the contents of the chrono as follows:

(ECF No. 74-2 at 44-45.)

Plaintiff disputes that any such chrono was written. He denies that the events described therein occurred.

On June 14, 2011, Plaintiff wrote a letter to Warden K. Allison, complaining about what he viewed as misconduct by staff in Facility G-1.4 (ECF No. 74-2 at 17-18.) Plaintiff stated that he was writing the letter confidentially due to fears of retaliation by staff. He complained that a non-party mental health staff person was using the internet for personal use during work time, not holding group, and paying undue attention to female staff. Plaintiff claimed that this conduct left his mental health needs unsatisfied. He also stated that "some" clinicians were violating various laws by telling custody officers about private inmate communications. As an example, he stated that inmate Dunsford told non-party clinician Kerr that inmate Bonilla made threats against Dunsford. Kerr told Defendant Garcia, Garcia told Bonilla, and Bonilla told everyone in the building. Plaintiff also complained that custody staff had access to the room in which mental health files were stored, and that some custody staff and clinicians had too close of a relationship, thus diminishing the trust inmates had in mental health staff. Aside from the mention of Garcia noted above, no other Defendants were mentioned by name in this letter.

Defendant Coffin eventually responded to Plaintiff's June 14, 2011 letter to the Warden. (ECF No. 81-1 at 104.) Coffin acknowledged that Plaintiff's letter concerned violations of Departmental standards and professional ethics, and also acknowledged Plaintiff's concern that he risked retaliation. Coffin advised Plaintiff that retaliation would not be tolerated, and that Plaintiff's allegations should be submitted through the administrative appeal process.

On June 16, 2011, another incident occurred between Plaintiff and Defendant Garcia. It is undisputed that Plaintiff told Garcia that he liked her shoes and stated that he made this comment to see her reaction. Garcia informed Plaintiff that the comment could be seen as an attempt at overfamiliarity. Plaintiff disputes that he was attempting to be overfamiliar. Defendant Garcia authored a CDC-128B Informational chrono regarding this encounter. The chrono is the primary basis for Plaintiff's claim against Garcia. It reads as follows5:

(ECF No. 81-1 at 91.)

Plaintiff disputes that he was being argumentative and states that he was not informed that his discussion with Garcia constituted verbal counseling or that the matter was documented on his bed card.

Garcia also authored an Interdisciplinary Progress Note regarding this incident. The note stated:

Additionally, Garcia stated:

(ECF No. 74-2 at 42.)

On June 21, 2011, Plaintiff met with Trevino for a routine clinical session. Trevino noted, in relevant part, as follows:

(ECF No. 74-2 at 80.)

Trevino noted that Plaintiff was not receptive to education regarding the impact of his behavior on others and that "concerns that have been arising with [Plaintiff's] inappropriate behavior related to staff as well as with his peers" would be discussed at an upcoming Inter-Disciplinary Treatment Team ("IDTT") meeting. (Id.) Plaintiff contends that Trevino took his statements out of context. He maintains that he has a right to protect staff if he so chooses.

On June 22, 2011, Plaintiff had contact with several staff members regarding his behavior toward mental health staff. Non-party Correctional Sergeant J. Tangen attended an interview of Plaintiff by non-party Lieutenant Rivero regarding Plaintiff's "unusual behavior" towards Garcia and authored a CDC-128B General chrono regarding the interview:

(ECF No. 81-1 at 93.)

Plaintiff disputes that he tried to give Garcia a note, stating that he had only tried to give her a paper relating to a "DBT class." Plaintiff contends that Garcia had made it appear to Rivero that these events had occurred on the morning of June 22, when in fact they had occurred one week prior. Plaintiff claims that, after this interview, Rivero told Plaintiff to return to the Facility and to keep his mouth shut as the Warden and her staff were present. According to Plaintiff, Rivero stated that Garcia had told the Warden that she was not uncomfortable with or afraid of Plaintiff. Plaintiff contends that, when he returned to Facility G, he spoke with the Warden and her staff regarding his staff complaints.6

Defendant Goss claims that she had an encounter with Plaintiff on June 22, 2011. Plaintiff disputes that he spoke with Goss on June 22, 2011. Nevertheless, Defendant Goss issued Plaintiff a 115 Rules Violation Report ("RVR") for "Behavior that Could Lead to Violence" in relation to the incident.7 The RVR alleged as follows:

(ECF No. 81-1 at 80-81.)

Goss also authored substantially similar Interdisciplinary Progress Notes (ECF No. 81-1 at 99-100) and General chronos (ECF No. 81-2 at 122) regarding this incident.

Trevino also saw Plaintiff on June 22, 2011 for a "confidential clinical contact." (ECF No. 74-2 at 82.) Trevino noted the following:

(ECF No. 74-2 at 82.)

According to Plaintiff, Trevino asked Plaintiff about his encounters with Rivero and the Warden that morning and was unhappy to hear that Plaintiff spoke with the Warden about his staff complaints. Trevino told Plaintiff that he should not bother the Warden because she is very busy, and Plaintiff responded that he would speak with whoever he chose.

C. Transfer to Facility E and the Care of Defendant Isira

On June 23, 2011, non-party Correctional Sergeant J. Johnson authored two CDC-128B General chronos regarding moving Plaintiff out of Facility G-1 and into Facility E. In one chrono, Johnson stated that "[t]his move is being done because Wheeler is stalking medical staff and lower functioning inmates. . . ." (ECF No. 81-1 at 95.) In the other, Johnson stated that "[t]he A.O.D., AW M. Tan, authorized Wheeler to be moved to Facility `E' Gym. This move is being done because Wheeler has been threatening mental health staff (see RVR-G-11-06-014 authored by LPT L. Goss)." (ECF No. 81-1 at 95.)

According to Plaintiff, his mental health needs could not be fully accommodated on Facility E.

At some point thereafter, Plaintiff apparently was moved to Administrative Segregation ("Ad-Seg") on Facility E. On June 27, 2011, Defendant Trevino sent an email to Defendants Garcia and Goss and other non-parties stating:

(ECF No. 81-1 at 128.)

That same day, Trevino reached out to Defendant Isira (a clinician on Facility E) by email stating, "I have some information to share with you if [Plaintiff] is on your caseload." (ECF No. 81-1 at 130.) Isira responded that Plaintiff had not yet been seen. (Id.) Trevino responded with the following information:

(ECF No. 81-1 at 133.)

Isira first saw Plaintiff on June 29, 2011. (ECF No. 74-2 at 96, 104.) Plaintiff claims that Isira was rude, made racially disparaging remarks, and disbelieved Plaintiff's claims regarding his mental health. Isira noted that Plaintiff's speech was hurried and laced with profanity and that Plaintiff was insistent in his demands. Isira later informed Trevino by email that he had seen Wheeler, who "ramble[d] on" "about his experiences in G yard and elsewhere." Isira further stated:

(ECF No. 81-1 at 132-33.)

Isira requested further information from Trevino regarding Wheeler's "predatory" behavior. Trevino responded:

(ECF No. 81-1 at 132.)

Isira thanked Trevino for his response and stated:

(ECF No. 81-1 at 135.)

Isira next saw Plaintiff on July 8, 2011. (ECF No. 74-2 at 97, 106.) Plaintiff contends that Isira was rude, yelled at Plaintiff, and stated that he would make sure Plaintiff would not return to Facility G. Isira noted that Plaintiff was agitated and did not address the clinical questions asked of him.

On July 13, 2011, Plaintiff attended a classification committee meeting. (ECF No. 81-1 at 142.) Although Plaintiff claims that the committee told him that he would be cleared to return to Facility G following the hearing on the RVR issued by Goss, the committee's report reflects only that Plaintiff was released to Facility E.

Isira saw Plaintiff again on July 15, 2011. According to Plaintiff, Isira was belligerent, racist, and discussed Defendants Garcia and Goss, According to Isira, Plaintiff was upset about pending proceedings on the RVR issued by Goss. (ECF No. 74-2 at 97, 108.)

A hearing on the RVR issued by Goss was conducted on July 20, 2011. The Hearings Officer found Plaintiff not guilty and dismissed the charge. The decision was based on three findings: (1) no verbal threats were made, (2) no aggressive physical actions were reported, and (3) there was no threat to staff or alarm activation. (ECF No. 81-1 at 88.) The Hearings Officer did not, as Plaintiff contends, find that the allegations were unsubstantiated or untrue. The hearings officer elected to document the allegations as a CDC-128B chrono "for future reference." (Id.)

Isira next saw Plaintiff on July 22, 2011. According to Plaintiff, Isira was racist and yelling and "demanded to know everything about Garcia." Plaintiff ended the session and told Isira to "kiss [his] white ass." According to Isira, Plaintiff was belligerent, hostile, and inappropriate. He became threatening and the encounter was terminated prematurely due to Isira's safety concerns. Isira documented the event in a 128B chrono and an Interdisciplinary Progress Note. (ECF No. 74-2 at 97-98, 110, 112.) The 128B states in relevant part as follows:

(ECF No. 74-2 at 110.)

D. Removal from EOP Level of Care

On July 26, 2011, the IDTT team elected to reduce Plaintiff's level of care from EOP to CCCMS.8 Isira participated in the IDTT discussions as the IDTT leader. He also prepared a Mental Health Treatment Plan for Plaintiff. Therein, Isira noted that Plaintiff was "obsessed with female staff and his supposed `relationships' with them." (ECF No. 74-2 at 115.) Significantly, he listed Plaintiff's diagnoses as sexual sadism, pedophilia, post-traumatic stress disorder (rule/out), and narcissistic personality disorder. (Id. at 116.) This was a change from Plaintiff's prior diagnoses of post-traumatic stress disorder and major depressive disorder, single episode, severe without psychotic feature. (Id. at 100; ECF No. 81-1 at 1.) Isira states that he based his diagnoses on Plaintiff's medical records, central file, and Isira's own observations of Plaintiff. Isira states that his diagnoses of sexual sadism and pedophilia were drawn from his review of Plaintiff's court transcripts, which described in detail numerous episodes of such behavior. According to Isira, he was without the data or means to verify the diagnosis of post-traumatic stress disorder, and thus maintained this possible diagnosis in Plaintiff's treatment plan. However, Plaintiff refused to discuss his background relating to an instance of major depressive disorder and Isira found no documentation upon which such a diagnosis would rest; accordingly, this diagnosis was omitted. (ECF No. 74-2 at 116.) In any event, Isira states that his clinical impressions were not based on information received from Defendants regarding Plaintiff's behavior on Facility G.

On August 1, 2011, Isira shared with Trevino information relating to Wheeler's reduction to CCCMS status, stating:

(ECF No. 81-1 at 137.)

E. Return to EOP Level of Care9

At some point, Plaintiff was placed in Ad-Seg on Facility E. (See ECF No. 81-2 at 16.) On September 27, 2011, Plaintiff underwent an IDTT meeting with non-parties. A Mental Health Treatment Plan was prepared by non-party Dr. Butler. (ECF No. 81-2 at 15.) Therein, Dr. Butler reinstated Plaintiff's diagnoses of major depressive disorder and antisocial traits. However, Dr. Butler and the IDTT maintained Plaintiff's CCCMS status and did not refer him for a higher level of care. (ECF No. 81-2 at 18.)

On November 4, 2011, Isira authored a 128B Information chrono regarding safety concerns involving threats allegedly made against Isira by Plaintiff. Therein, Isira noted that Plaintiff was upset about Isira's diagnoses and decision to remove Plaintiff from the EOP level of care. (ECF No. 74-2 at 122.)

On November 15, 2011, Defendant Garcia co-authored a 128C chrono regarding Plaintiff. The chrono recounted information contained in the chronos described above, and stated that Plaintiff had recently sent Garcia correspondence asking that Garcia remove certain notes and chronos from Plaintiff's file. Garcia stated that she was concerned with Plaintiff's focus on her, felt harassed, and would not feel safe if Plaintiff returned to Facility G-1. (ECF No. 74-2 at 47.) Plaintiff acknowledges that he sent Garcia two CDCR-22 Forms requesting that she remove chronos from his file.

On May 21, 2012, non-party Dr. Vickers evaluated Plaintiff in relation to an administrative appeal. (See ECF No. 81-2 at 42-44.) Vickers noted that "although there may be factors of clinical relevance regarding IP's controlling offense, and pervasive characterological traits, recent evaluation . . . indicates . . . that the current focus of clinical attention . . . is related to primary diagnoses of Major Depressive Disorder and Post Traumatic Stress Disorder." (ECF No. 81-2 at 42.)

On November 6, 2012, Plaintiff participated in an IDTT meeting, under the supervision of Dr. Vickers, for the purpose of changing his level of care from CCCMS back to EOP. (ECF No. 81-2 at 56.) Based on this change, Plaintiff apparently was considered for transfer back to Facility G.

F. Transfers between CSATF and Mule Creek State Prison

On November 14, 2012, non-party Correctional Counsel I K. Rocha interviewed Defendant Garcia regarding Plaintiff's potential transfer back to Facility G. (ECF No. 81-2 at 112.) According to the chrono authored by Rocha, "Garcia stated that she does not wish any further contact with Inmate Wheeler and would not feel safe if he returned to Facility G II SNY." (ECF No. 81-2 at 112.)

On November 28, 2012, Plaintiff appeared before a Unit Classification Committee on Facility E for program review. (ECF No. 100 at 95.) The committee noted that Plaintiff required transfer to a Level II SNY EOP facility. However, Facility G at CSATF is the only such facility. The committee noted the November 14, 2012 discussion between Rocha and Garcia concerning Plaintiff's potential placement there, as well as other chronos involving Defendant Garcia, and, as a result, did not recommend Plaintiff be returned to Facility G. Instead, Plaintiff was recommended for transfer to Mule Creek State Prison's Level III SNY EOP facility as the only institution that could accommodate Plaintiff's mental health concerns due to the preclusion from Facility G.

Plaintiff was not immediately transferred and, on February 13, 2013, Plaintiff appeared before a classification committee for an annual review and for consideration of transfer due to Plaintiff's return to EOP level of care. The committee again noted that Plaintiff required transfer to a Level II SNY EOP facility but that his placement on Facility G was not recommended. Instead, Plaintiff again was recommended for transfer to the Mule Creek State Prison's Level III SNY EOP. (ECF No. 81-2 at 110). Plaintiff disagreed with the decision and stated his desire to return to Facility G. (ECF No. 81-2 at 111.)

Plaintiff was transferred to Mule Creek State Prison on March 29, 2013.

In October 2013, Garcia and Goss exchanged emails disparaging Plaintiff. Therein, Garcia stated that Plaintiff was "still stalking" Garcia, had "contacted the litigation department" at her new institution, and had her "name, middle name and everything." ECF No. 81-2 at 116.)

At some point, Plaintiff was transferred to California Medical Facility and eventually, on April 29, 2014, he was returned to Facility G-1 at CSATF.10

At the time of Plaintiff's return, Garcia was no longer working at CSATF. Goss remained at CSATF and Facility G. On April 30, 2014, Goss authored a General chrono stating:

(ECF No. 81-2 at 122.)

On May 1, 2014 Garcia and Goss again exchanged emails regarding Plaintiff and discussed their chronos and Plaintiff's "crazy" allegations against them. (ECF No. 81-2 at 126.)

Documents associated with an administrative appeal filed by Plaintiff indicate that Goss was interviewed by a Counselor Zometa on May 1, 2014. (ECF No. 81-2 at 129.) Goss expressed concerns regarding Plaintiff's return to SATF. "She stated she previously issued the appellant a Serious Rules Violation Report documenting his behavior; however it had been reduced to a Counseling Chrono." (Id.) Counselor Zometa did not find documentation of the RVR in Plaintiff's file, but did locate a CDC-128B describing the events and referring to the RVR. Zometa also spoke with Garcia, who also expressed safety concerns regarding Plaintiff.

At some point later in 2014, Plaintiff was returned to Mule Creek State Prison, where he remains housed.

IV. Defendants' Objections to Plaintiff's Submissions

A. Supplemental Opposition

Defendants object that Plaintiff's supplemental opposition violates the Court order permitting such opposition. (ECF No. 101.) On June 3, 2015, the Court extended the discovery cut-off at the request of the parties and, as a result, granted Plaintiff "an opportunity to file a supplemental opposition to the motion for summary judgment, if any he has, following receipt of additional discovery." (ECF No. 84 at 41-42.) The Court limited the supplemental opposition to twenty-five pages, excluding exhibits. (Id.)

On September 4, 2015, Plaintiff filed a supplemental opposition totaling 36 pages, with an additional 78 pages of exhibits. (ECF No. 100.) The opposition functions largely as a surreply and does not focus exclusively on matters that were the subject of additional discovery. Plaintiff concedes that his supplemental opposition is longer than ordered and is in essence a surreply, but argues that such a response was necessary. (ECF No. 103 at 2.)

Although the Court did not authorize or desire a surreply, it also did not limit substance of what Plaintiff was allowed to present in his supplemental opposition. In light of Plaintiff's pro se status and the lack of specificity in the Court's order, the Court will consider the contents of Plaintiff's supplemental opposition.

The Court did, however, specifically limit the supplemental opposition to twenty-five pages. Plaintiff did not request permission to exceed the page limit. He exceeded that limit at his own peril. The Court is satisfied that the 116 pages of Plaintiff's briefing that are under consideration are sufficient for Plaintiff to adequately present his case, particularly in light of the hundreds of additional pages of exhibits submitted for review. The Court will not consider material presented in Plaintiff's supplemental opposition after the twenty-fifth page.

The Court did not limit the number of exhibits that Plaintiff was permitted to submit with his supplemental opposition. Those exhibits have been considered to the extent they are material.

B. Deposition Testimony

Defendants object to portions of Plaintiff's deposition testimony and sworn opposition, on the ground such testimony contains inadmissible hearsay. (ECF No. 102.) The testimony concerns a conversation allegedly held between Plaintiff and non-party Lieutenant Rivero on June 22, 2011, in which Rivero reportedly stated (1) that the Warden was at that moment in Facility G discussing Plaintiff's complaint letter with staff, (2) that Garcia had stated she was neither uncomfortable with nor afraid of Plaintiff; (3) that Plaintiff was acting normally and that Defendants' conduct against him was unusual, and (4) that he could not understand why Garcia wanted to "get rid of" Plaintiff. (See ECF No. 100 at 12.)

Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ. P. 56(e). In determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay contents of plaintiff's diary on summary judgment because at trial, plaintiff's testimony of contents would not be hearsay). However, the Court may not consider inadmissible hearsay evidence which could not be presented in an admissible form at trial. See Medina v. Multaler, Inc., 547 F.Supp.2d 1099, 1122 (C.D. Cal. 2007) ("Medina bases much of her declaration on hearsay evidence that will not be admissible at trial. Medina will not, for example, be able to take the witness stand at trial and recount statements that constitute hearsay, double hearsay, or triple hearsay.").

As presented, Plaintiff's testimony concerning his conversation with Lieutenant Rivero contains multiple layers of hearsay: Plaintiff testified regarding what he was told by Rivero regarding statements made by Garcia and the Warden. These statements are offered for the truth of the matter asserted. Plaintiff has made no showing that the facts underlying the declaration could be presented in an admissible form at trial, and thus, that his testimony should be considered for purposes of summary judgment. Cf. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004) (concluding that hearsay evidence could be presented in admissible form at trial); Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003) (same). His testimony therefore is inadequate under Federal Rule of Civil Procedure 56(e). See Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (holding that an affidavit which contained hearsay statements that were not based on personal knowledge and failed to set forth facts that would be admissible in evidence did not meet the requirements of Rule 56(e)).

Defendants' objections to this testimony will be sustained.

C. Trevino Declaration

Defendants object to the declaration of Inmate Martin Trevino. (ECF No. 100.) The declaration was submitted with Plaintiff's opposition to Defendants' motion, and concerns Inmate Trevino's observations of Plaintiff and Defendants Garcia and Goss during the time period at issue. (ECF No. 81-2 at 149-50.)

This objection is untimely. The declaration was submitted on May 21, 2015 with Plaintiff's opposition. Defendants did not object to the declaration at the time of submitting their reply. (ECF No. 83.) Instead, they waited until September 15, 2015 to submit these objections, purporting to object to portions of Plaintiff's September 4, 2015 supplemental opposition. (ECF No. 100.)

The objection is overruled without prejudice. Regardless, the Court finds the declaration does not contain evidence material to the disposition of the motion for summary judgment. Accordingly, it is not discussed further herein.

V. Discussion

A. Legal Standard on Summary Judgment

Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. P. 56(c)(1).

Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and, in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984, and it must draw all inferences in the light most favorable to the nonmoving party, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011).

B. First Amendment Retaliation

1. Legal Standard

"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

The second element of a prisoner retaliation claim focuses on causation and motive. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a "`substantial' or `motivating' factor behind the defendant's conduct." Id. (quoting Sorrano's Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can be difficult to establish the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003) (finding that a prisoner establishes a triable issue of fact regarding prison officials' retaliatory motives by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) ("timing can properly be considered as circumstantial evidence of retaliatory intent").

The third prong can be satisfied by various activities. Filing a grievance is a protected action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Pursuing a civil rights litigation similarly is protected under the First Amendment. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985).

With respect to the fourth prong, "[it] would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity . . . ." Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).

With respect to the fifth prong, a prisoner must affirmatively show that "the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Rizzo, 778 F.2d at 532.

2. Inaccurate Records

As noted, Plaintiff's opposition points are lengthy and often address matters of little or no legal relevance to the claims at issue. In particular with regard to the retaliation claim, Plaintiff alleges that various records written by Defendants are inaccurate and that several chronos should have been removed from his file after he was found not-guilty on the RVR written by Goss.

Plaintiff apparently believes he has a stand-alone right to accurate prison records. He does not. See Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987). In any event, no such claim is properly before the Court at this time; it was dismissed at the screening stage. (ECF Nos. 26, 28.) Unless alleged inaccuracies rise to the level of retaliation, they cannot support Plaintiff's claim in this action.

Plaintiff's contention that chronos should have been removed from his file appears to be based upon an erroneous interpretation of Title 15, section 3326(a)(2) of the California Code of Regulations. Regardless, no claims based upon the California Code of Regulations are presently before the Court.

3. Defendant Coffin

Plaintiff has presented no evidence to show that Defendant Coffin retaliated against him for the exercise of his First Amendment rights or that Coffin knew of such retaliation by his subordinates and failed to act.

Plaintiff wrote to the Warden on June 14, 2011, complaining of Facility G staffs' improper use of computers and disclosure of confidential records. Coffin responded. Although Plaintiff's letter expressed his fear of retaliation, it did not complain of or even describe any ongoing retaliation or identify any perpetrators of retaliation. Nothing in the letter put Coffin on notice of alleged retaliation. Nothing suggests Coffin turned a blind eye to such retaliation. Moreover, Defendant Coffin avers that he was not aware of Plaintiff's letter until June 27, 2011, a date after the alleged retaliation occurred. Plaintiff speculates to the contrary, but speculation is insufficient to create a factual dispute to defeat summary judgment. R.W. Beck & Assocs. v. City & Borough of Sitka, 27 F.3d 1475, 1480 n.4 (9th Cir. 1994) ("Arguments based on conjecture or speculation are insufficient to raise a genuine issue of material fact . . . . If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." (internal quotation marks omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986))).

Plaintiff claims that Garcia admitted, in response to requests for admission, that she discussed one of Plaintiff's complaints against her with Coffin and thus that Coffin was aware of Plaintiff's complaints. (ECF No. 81-2 at 172.) Garcia stated as follows: "The responding party admits discussing with Goss that she had discussed one of Wheeler's complaints with Dr. Coffin." (Id) This statement, however, is vague as to time and does not describe the substance of Garcia's conversation with Coffin. It is insufficient to show that Coffin was made aware of, and willfully turned a blind eye to, ongoing retaliation at any time. For similar reasons, Plaintiff's claim that Coffin reviewed his mental health file on July 25, 2011, in relation to an administrative appeal, does not establish awareness of ongoing retaliation. (ECF No. 81-2 at 8.)

Summary judgment should be granted in favor of Defendant Coffin.

4. Defendants Trevino, Garcia, and Goss

a. Retaliatory animus

Plaintiff's claims against these Defendants fail on several grounds. The primary defect, however, is Plaintiff's inability to show that any of them took adverse action against him because of his protected conduct. Brodheim, 584 F.3d at 1271. Plaintiff alleges numerous protected activities that could be the source of some retaliatory animus on the part of these Defendants. However, Plaintiff's regular participation in protected conduct (filing a grievance against custody officers, complaining of misconduct to various staff, writing a letter to the warden) does not automatically convert Defendants' conduct into retaliatory conduct. See Estrada v. Gomez, No. C 96-1490 S1 (PR), 1998 WL 514068, at * 3 (N.D. Cal.1998). Accordingly, the Court will examine each of Plaintiff's contentions in turn.

Plaintiff first argues that these Defendants retaliated against him because he filed an administrative grievance regarding custody officers who allegedly used excessive force against him on January 19, 2011. Following the January 19, 2011 incident, Plaintiff was temporarily removed from Facility G-1. He returned to Facility G-1 on March 24, 2011. Although Plaintiff feels that Defendants' attitude toward him had changed by that time, he alleges no adverse action on the part of any Defendant until June 2011. Indeed, the records before the Court establish that Plaintiff's interactions with these Defendants were uneventful in the interval between March 24, 2011 and early June 2011. To the extent Plaintiff dislikes or disagrees with some of Trevino's clinical notes during this interval, the Court finds Trevino's assessments to be of the same character as his assessments prior to the January 19, 2011 incident. There is no evidence, circumstantial or otherwise, to link Plaintiff's grievance regarding the January 19, 2011 incident to the alleged adverse actions.

Plaintiff next argues that these Defendants retaliated against him for writing a complaint letter to the Warden about perceived misconduct on Facility G-1. The letter addressed only one of the Defendants — Defendant Garcia — by name, and detailed perceived misconduct by other non-party staff and unnamed clinicians. Defendants Trevino, Garcia, and Goss deny having any knowledge of this letter prior to the instant litigation. Plaintiff offers no admissible evidence to the contrary, and nothing suggests that any of the named Defendants were aware of the letter at the time the adverse actions occurred.11 Thus, the letter cannot serve as a basis for Plaintiff's claim of improper motive.

Plaintiff also appears to claim that Defendants retaliated against him for verbally complaining to the Warden or her staff on June 22, 2011. Plaintiff's testimony concerning this conversation does not constitute evidence of improper motive on the part of the Defendants. Plaintiff testified during his deposition that he spoke with Chief Deputy Warden Pennyworth on June 22, 2011. (Plaintiff's deposition at 121.) He told Pennyworth that he felt "clinicians [were] spending too much time in the office . . . on the internet" and that Plaintiff was not "getting enough groups." (Id.) Plaintiff testified that he had no knowledge of any conversation between Warden Allison and the Defendants. (Id.) This testimony reflects only that Plaintiff informed the Chief Deputy Warden of his complaints; it does not impart knowledge of his complaints on any of the Defendants. Plaintiff may not now create an issue of fact by contradicting his prior testimony. VanArsdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009).

Plaintiff suggests two additional reasons Defendant Garcia may have retaliated against him. First, Plaintiff contends that he heard the results of his second level appeal against custody staff on May 25, 2011. He states that Garcia was present when he heard and that her attitude changed toward Plaintiff thereafter. A mere change in attitude, however, is not actionable. Plaintiff does not allege Garcia undertook any adverse action against him until June 16, 2011, approximately three weeks later, when Plaintiff concedes he made comments regarding Garcia's shoes to see her reaction. Additionally, Plaintiff provides no logical explanation for why Garcia's attitude would change toward Plaintiff based on the result of his second level appeal, which apparently was favorable to custody staff. This allegation is insufficient to support Plaintiff's claim.

Plaintiff also states that Garcia began to retaliate against him after he confronted her in early June about what he perceived as her misconduct. However, it does not appear that this action constituted protected conduct. According to Plaintiff, he did not threaten to make a formal complaint against Garcia or to otherwise blow the whistle on her alleged misconduct. Indeed, he denied in his deposition having any intention of doing so. (Plaintiff's deposition at 56.) In fact, he reportedly counseled Garcia to take steps to conceal her purported misconduct so that she would not be caught. In any event, as has already been stated, Garcia did not take any allegedly adverse action against Plaintiff until June 16, 2011, when she documented Plaintiff's comments regarding her shoes. Accordingly, this allegation is insufficient to support Plaintiff's claim.

The absence of evidence that Defendants Trevino, Garcia, and Goss acted with a retaliatory motive is a sufficient basis to recommend summary judgment be granted in their favor. Nevertheless, the Court also will consider Defendants' additional arguments regarding their conduct.

b. Garcia

Much of the conduct at issue relating to Garcia's reports is undisputed. Plaintiff concedes that he frequently sat in the dayroom outside of Garcia's office and watched her working. Plaintiff confronted Garcia in early June about her possible favoring other inmates and her perceived change of mood toward him. Plaintiff attempted to present a paper he had written during a group session. Garcia would not allow it. Plaintiff then attempted to present the paper to Garcia personally after the session. Again she refused him. Plaintiff made comments to Defendant Garcia on June 16, 2011 regarding her shoes, just to see her reaction. She relayed these incidents to Rivero and Isira.

Plaintiff disputes minute details regarding these events. He states that he was not attempting to be overfamiliar or threatening and that his actions were mischaracterized. He denies ever being argumentative with Garcia. He states that Garcia made the June 16 incident appear more recent than it was when she spoke to Rivero on June 22. However, given Plaintiff's concessions that the incidents reported by Garcia actually occurred, he cannot plausibly claim that Garcia falsified reports of the events.

Thus, Plaintiff is attempting to assert liability against Garcia for making reports of incidents that actually occurred, solely because he believes the incidents should not have been cause for concern and/or should have been reported with a different gloss. Plaintiff bears the burden of proving "that there were no legitimate correctional purposes motivating the actions he complains of." Pratt, 65 F.3d at 808. In light of his concessions that these incidents occurred, he cannot meet this burden. See Johnson v. Cruthfield, No. 105-CV-0351 AWI DLBP, 2008 WL 2404265, at *2 (E.D. Cal. June 11, 2008), aff'd sub nom. Johnson v. Crutchfield, 362 F. App'x 590 (9th Cir. 2010).

Furthermore, to the extent Plaintiff wishes to argue that Garcia wrongly interpreted his conduct,12 Garcia has presented a sworn declaration stating that she believed Plaintiff's conduct was improper and jeopardized her safety and that such belief motivated her actions. She continuously and consistently voiced her concerns to custody staff during her time at SATF and even after her departure. She shared her concerns in private emails with Defendant Goss. There is simply nothing in the record to suggest that Garcia's reports regarding Plaintiff reflected anything other than her legitimate, good faith concerns.

The Court notes additionally that Plaintiff himself professes to have had an unusually close relationship with Defendant Garcia prior to the incidents at issue here. He shared artwork and poetry with her. He claims to know the layout of her apartment in Corcoran and the color and style of her underwear. He claims to have possessed photographs of Garcia in various stages of undress that he passed on to another inmate for safekeeping. He reacted negatively when others spoke ill of her or spoke favorably regarding her appearance. He has conducted inquiries to learn her first and middle names. He has attempted to obtain her home address in Los Angeles. Although Plaintiff opines that such conduct is benign, when coupled with the activity reported by Garcia, it nonetheless is indicative of behavior that could warrant legitimate safety and security concerns.

Again, the Court emphasizes that the issue is not whether Garcia correctly believed that Plaintiff was threatening or stalking her. Plaintiff cannot defeat summary judgment by raising a factual dispute about whether he constituted an actual threat, and it is not the Court's role to determine whether Plaintiff's conduct toward Garcia constituted such a threat. See Medina v. Dickinson, No. 2:10-CV-0502 LKK AC, 2013 WL 268710, at *11 (E.D. Cal. Jan. 23, 2013). Instead, the Court must examine whether Plaintiff has met his burden of raising a triable issue as to whether Garcia was motivated by legitimate correctional goals, keeping in mind that the Court must accord wide-ranging deference to prison administrators in their efforts to preserve internal order and discipline and to maintain institutional security. Bell, 441 U.S. at 547. Again, the Court concludes that Plaintiff cannot meet this burden.

Summary judgment should be granted in favor of Defendant Garcia.

c. Goss

Disputes of fact preclude a finding that Defendant Goss wrote her RVR to further legitimate correctional goals. According to Goss, Plaintiff approached her in a way that made her feel uncomfortable and threatened, as stated in her report. According to Plaintiff, however, the RVR is entirely fabricated and the events described therein did not occur. Of course, if the events did not occur, there would be no legitimate purpose in writing them up or in bringing disciplinary charges.

Nevertheless, as stated above, Plaintiff has failed to show that Goss acted with a retaliatory motive. At most, the evidence may be read to suggest that Goss was motivated to remove Plaintiff from Facility G because she or Garcia did not like him or did not want him around. However, the writing of a false report does not rise to the level of a constitutional violation absent retaliatory motive. Plaintiff has no constitutionally guaranteed immunity from being falsely or wrongly accused. See, e.g., Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D. Cal. Sept. 18, 2014) ("Plaintiff's protection from the arbitrary action of prison officials lies in `the procedural due process requirements as set forth in Wolff v. McDonnell.'" (citing Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984))); Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL 294576, at *2 (N.D. Cal. Jan. 27, 2014) ("[T]here is no constitutionally protected right to be free from false disciplinary charges."); Johnson v. Felker, No. 1:12-cv-02719 GEB KJN (PC), 2013 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) ("Prisoners have no constitutionally guaranteed right to be free from false accusations of misconduct, so the mere falsification of a [rules violation] report does not give rise to a claim under section 1983.") (citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 949, 951-53 (2d. Cir. 1986)). His constitutional interests in this regard are protected by the Due Process clause and the procedures afforded through the RVR hearing.

Accordingly, summary judgment should be granted in favor of Defendant Goss.

d. Trevino

Plaintiff's allegations against Trevino are apparently two-fold: first, Trevino allegedly made false remarks in Plaintiff's mental health notes; and second, Trevino allegedly reported adverse information regarding Plaintiff to Isira during Plaintiff's transfer to Facility E.

As with his allegations against Garcia, Plaintiff's complaints about Trevino's notations in his mental health files are based on minute discrepancies regarding the details of Plaintiff's mental health visits. On the whole, Plaintiff agrees with the thrust of Trevino's notations: he and Trevino discussed issues Plaintiff was having with mental health and custody staff. Trevino did not take Plaintiff's side and instead counseled him regarding staff boundaries and overfamiliarity. Plaintiff agrees that he discussed with Trevino differences between "convicts" on the mainline and "inmates" in the EOP program; however, he believes these comments were misconstrued. Plaintiff also agrees that he discussed with Trevino that he has a right to protect inmates and staff; he maintains in his opposition that he has such a right. Based on the foregoing, Plaintiff cannot show that Trevino lacked a legitimate purpose with regard to these notes.

In the same vein, Trevino's emails to Isira constitute information sharing between clinicians responsible for Plaintiff's care. Nothing before the Court indicates that Trevino knew or believed this information was false or that the communications were undertaken for anything other than legitimate purposes, i.e., maintaining institutional order and providing Plaintiff with appropriate mental health care. Indeed, records before the Court reflect that the clinicians involved in Plaintiff's care (both parties and non-parties alike) regularly communicated by email regarding Plaintiff's care. Often, such communications did not paint Plaintiff in a favorable light. This is true even of clinicians with whom Plaintiff had a positive therapeutic relationship. Trevino's emails to Isira, in themselves, are insufficient to support a claim of retaliation.

Summary judgment should be granted in favor of Trevino.

5. Isira

The record is bereft of any evidence that Isira acted with a retaliatory motive against Plaintiff in writing his clinical notes, changing Plaintiff's diagnosis, or terminating Plaintiff's EOP level of care. There is no evidence that Isira was aware of Plaintiff's complaints against custody staff, his administrative appeals against other individuals, or his informal complaints to the Warden at the time these actions occurred. Nor is there any evidence to suggest that this activity by Plaintiff motivated Isira's actions. There is some evidence in the record that Isira became aware of Plaintiff's administrative appeals long after Isira's direct involvement in Plaintiff's medical care ceased. However, such post hoc knowledge does not bear on the claims at issue.

It appears from the record that Isira may have formulated opinions about Plaintiff based in part upon information that was provided to him through Trevino and through the chronos and clinical notes written by other Defendants. However, even assuming that some or all of these chronos and notes were written with a retaliatory motive, there is no evidence to suggest that Isira was aware of such retaliation or aware that the chronos and notes may have been unreliable.

It is clear that Isira's interactions with Plaintiff were contentious and that Isira was motivated to terminate Plaintiff's involvement in the EOP program. However, there is no evidence in the record to suggest that such conduct was motivated by retaliation. Summary judgment should be granted in favor of Isira on this claim.

The question of whether Isira's conduct was medically appropriate is discussed below.

B. Eighth Amendment Medical Indifference

The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners not only from inhumane methods of punishment but also from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). For claims arising out of medical care in prison, Plaintiff "must show (1) a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain," and (2) that "the defendant's response to the need was deliberately indifferent." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).

"Indications that a plaintiff has a serious medical need include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic or substantial pain." Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).

Deliberate indifference, which is the subjective element of an Eighth Amendment claim, is shown by "(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm caused by the indifference." Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm, 680 F.3d at 1122. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1977); Snow, 681 F.3d at 987-88; Wilhelm, 680 F.3d at 1122.

Where a prisoner alleges deliberate indifference based on a delay in medical treatment, the prisoner must show that the delay led to further injury. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); McGuckin, 974 F.2d at 1060a; Shapley v. Nevada Bd. Of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). Delay which does not cause harm is insufficient to state a claim of deliberate medical indifference. Shapley, 766 F.2d at 407 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Finally, "[a] difference of opinion between a physician and the prisoner — or between medical professionals — concerning what medical care is appropriate does not amount to deliberate indifference." Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendants chose this course in conscious disregard of an excessive risk to [his] health." Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted).

Viewing the evidence in the light most favorable to Plaintiff, there is sufficient evidence upon which a jury could conclude that Isira was deliberately indifferent to Plaintiff's serious mental health needs. According to Plaintiff, Isira was aggressive and made racially charged remarks during their encounters. He terminated Plaintiff's EOP level of care and changed Plaintiff's diagnosis. These changes were inconsistent with the decisions of every other provider who saw Plaintiff in the time immediately preceding and following Isira's involvement. A reasonable juror could conclude that these facts reflect more than a mere difference of opinion between medical providers, but instead a concerted effort to alter Plaintiff's mental health services in an effort to protect staff from what was viewed as inappropriate behavior by Plaintiff.

Isira argues that his change in Plaintiff's diagnosis (to pedophilia and sexual sadism) was supported by his review of records relating to Plaintiff's criminal offense. According to Isira, records reflect that Plaintiff engaged in violent and sexually abusive behavior toward his wife and children, including sodomizing his one year old son and forcing his wife and children to engage in sexual acts with each other in Plaintiff's presence. Although Plaintiff maintains his innocence on these claims, he nonetheless was convicted. The Court cannot conclude that Isira's reference to these acts was medically inappropriate. However, Plaintiff's convictions were remote in time, apparently well over twenty years earlier. There is nothing before the Court to suggest that such diagnoses were appropriate at the time Plaintiff was under Isira's care. Indeed, subsequent providers concluded that, while Plaintiff's offenses may present "factors of clinical relevance," they did not relate to Plaintiff's primary diagnoses or the focus of his clinical needs. (ECF No. 81-2 at 42.) Isira's decision to record pedophilia and sexual sadism as Plaintiff's primary diagnoses, despite any evidence to indicate Plaintiff had engaged in such behavior in the preceding twenty years, is sufficient to raise a triable question regarding Isira's motives.

Additionally, it is plain from the evidence that Isira took direct action to terminate Plaintiff's EOP level of care. Isira's motivation for this conduct is susceptible to more than one interpretation. On the one hand, Isira may have been motivated by his belief that Plaintiff's behavior reflected an inability to participate effectively in the EOP program. Such a determination would not constitute deliberate indifference. On the other hand, Isira may have been motivated to shield staff members from what he viewed as Plaintiff's improper conduct, regardless of Plaintiff's need for EOP services, and with deliberate indifference to such need. A jury could credit either interpretation.

Isira argues that he is entitled to qualified immunity on this claim because he reasonably believed Plaintiff did not require EOP care and, to the extent he was incorrect, such reasonable mistake would not subject him to liability. As stated above, however, a reasonable juror could conclude that Isira was not motivated by a good faith, but perhaps mistaken belief regarding the care Plaintiff required, and instead was motivated by ill-will toward Plaintiff or other staffing considerations. These factual disputes preclude a finding in favor of Isira on qualified immunity grounds.

Accordingly, disputes of fact preclude summary judgment on this claim. Summary judgment should be denied.

C. Medical Malpractice

Defendant Isira moves for summary judgment on Plaintiff's state law negligence claim on the grounds that Plaintiff cannot produce evidence to show that Isira was negligent and, in any event, Plaintiff failed to exhaust his claims as required under the California Tort Claims Act. The Court finds it necessary to address only the latter argument.

Under the California Tort Claims Act ("CTCA"), a plaintiff may not maintain an action for damages against a public employee unless he has presented a written claim to the state Victim Compensation and Government Claims Board ("VCGCB") within six months of accrual of the action. Cal. Gov't Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). Failure to demonstrate such compliance constitutes a failure to state a cause of action and will result in the dismissal of state law claims. State of California v. Superior Court (Bodde), 32 Cal.4th 1234, 1240 (2004).

Isira contends that Plaintiff's submissions to the VCGCB were untimely.

It is undisputed that Plaintiff submitted two claims to the VCGCB relating to Defendant Isira's conduct. The first, No. G605113, is dated May 19, 2012 and claims that Isira's alleged malpractice was discovered March 29, 2012. Therein, Plaintiff complaints of retaliation, harassment, changes to his treatment plan, and misdiagnosis.

The second, No. G605512, is dated June 29, 2012 and claims that Isira's alleged malpractice was discovered the same day. Therein, Plaintiff claims that Isira is unlicensed, improperly changed Plaintiff's level of care, committed malpractice, misdiagnosed him, did not provide proper therapy, and retaliated against him. Documents attached to the claim form indicate that Plaintiff's primary concern was Isira's alleged lack of proper licensure.

Plaintiff plainly knew that Isira had removed him from the EOP Level of Care at least as early as July 27, 2011. (ECF No. 74-2 at 151, 158-59.) He did not submit a claim to the VCGCB until May 19, 2012, approximately ten months later. He did not exhaust this claim within six months of accrual. Plaintiff's only excuse for this failure is that he was gathering documents regarding Isira, presumably those relating to his licensure (or lack thereof). He provides no authority to suggest that this action excuses his failure to timely exhaust and the Court finds none. Malpractice claims based the reduction of Plaintiff's level of care should be dismissed.

Plaintiff claims that he was not aware of Isira's misdiagnosis until March 29, 2012, when he obtained documentation through an administrative appeal. (ECF No. 81 at 53-54.) However, records submitted by Plaintiff reflect that Plaintiff complained to other mental health providers regarding the change in his diagnosis as early as September 28, 2011. (ECF No. 81-2 at 22.) Plaintiff claims that he learned of the misdiagnosis on September 28, 2011, but believed it to be a computer error and not attributable to Isira.

For the purposes of the CTCA, a cause of action accrues on the date that would apply under the statute of limitations applicable to a dispute between private litigants. Shirk v. Vista Unified School District, 42 Cal.4th 201, 208-09 (2007). The California Supreme Court has held that the date of accrual of a cause of action is the time when the cause of action is complete with all of its elements. Norgart v. Upjohn Co., 21 Cal.4th 383, 389 (1999). Accrual may be delayed until the plaintiff discovers or has reason to discover the cause of action. Id. The California Supreme Court has explained that "[a] plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements." Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 807 (2005) (internal quotation marks and citation omitted). This is not a hypertechnical inquiry but instead looks to "whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." Id. This rule applies "even if the plaintiff does not have reason to suspect the defendant's identity." Id. It applies even when the full extent of the plaintiff's injury is unknown. Wallace v. Kato, 549 U.S. 384, 391 (2007).

Based on the foregoing, the Court concludes that Plaintiff's claim for misdiagnosis accrued on September 28, 2011, when Plaintiff discovered the alleged wrongdoing and had reason to suspect that someone had injured him. Given the parties' contentious relationship and the significant other changes to Plaintiff's treatment made by Isira, Plaintiff at least had reason to suspect Isira's involvement. Regardless, however, Plaintiff's professed ignorance regarding Isira's involvement does not delay accrual of the cause of action under California law. The cause of action accrued on September 28, 2011.

Again, Plaintiff's earliest submission to the VCGCB occurred on May 19, 2012, nearly eight months later. Accordingly, he did not timely exhaust his claim and malpractice claims based on Isira's misdiagnosis should be dismissed.

As these are the only two apparent bases for Plaintiff's malpractice claims against Isira, Plaintiff's cause of action for medical malpractice should be dismissed in its entirety.

VI. Conclusion and Recommendation

Based on the foregoing, it is HEREBY RECOMMENDED that Defendants' motion for summary judgment be GRANTED IN PART AND DENIED IN PART. Specifically, summary judgment should be granted in favor of all Defendants on Plaintiff's First Amendment retaliation claim. Plaintiff's medical malpractice claims should be dismissed for failure to exhaust under the California Tort Claims Act. In all other respects the motion should be denied. The matter should proceed only against Defendant Isira on an Eighth Amendment claim for inadequate medical care.

The findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the findings and recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.