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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MARVIN GLENN HOLLIS,

Plaintiff,

v.

RISENHOOVER, et al.,

 Defendants.

Case No. 17-00326 BLF (PR) 

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY 

JUDGMENT; DENYING 

PLAINTIFF’S CROSS-MOTION FOR 

SUMMARY JUDGMENT

(Docket Nos. 104, 123)

Plaintiff, a California state prisoner, filed a pro se civil rights complaint under 42 

U.S.C. § 1983 based on care he received while at Pelican Bay State Prison (“PBSP”), 

where he was formerly housed. Dkt. No. 1. Finding the complaint stated a cognizable 

Eighth Amendment claim for deliberate indifference to serious medical needs, the Court 

issued an order of service and directed Defendants to file a motion for summary judgment 

or other dispositive motion.1 Dkt. No. 53. Defendants Dr. McCall and J. Afdahl filed a 

motion for summary judgment on the grounds that they did not act with deliberate 

1 The Court granted Defendants’ first motion for summary judgment with respect to the 

Eighth Amendment deliberate indifference claim against Defendants S. Risenhoover and 

N. Adam and set briefing on the remaining claims. Dkt. No. 99. 

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indifference to serious mental health needs. Dkt. No. 104.

2 Plaintiff filed opposition, Dkt. 

No. 137, and Defendants filed a reply, Dkt. No. 138. Plaintiff filed a cross-motion for 

summary judgment. Dkt. No. 123. Defendants filed opposition, Dkt. No. 130, and 

Plaintiff filed a reply,3 Dkt. No. 135, along with a request for judicial notice,4 Dkt. No.

136. For the reasons stated below, Defendants’ motion for summary judgment is 

GRANTED, and Plaintiff’s cross-motion is DENIED. 

DISCUSSION

I. Statement of Facts5

The underlying events which are the basis of this action occurred while Plaintiff 

was formerly incarcerated at PBSP. At the time, Defendant M. McCall was a psychiatrist

employed by the CDCR as a Staff Psychiatrist for the Telepsychiatry Program, McCall 

Decl. ¶ 1, and Defendant J. Afdahl was a psychiatric technician at PBSP. 

Plaintiff arrived at PBSP on January 21, 2016, and received an Initial Health 

Screening, Form CDCR 7277. McCall Decl. ¶ 4; Ex. A at AG 73-74. The record of that 

screening noted that Plaintiff was being treated for the following mental health conditions: 

2

In support of their summary judgment motion, Defendants provide the declaration of 

Defendant M. McCall, Dkt. No. 104-1, hereinafter “McCall Decl.,” along with an exhibit

containing authenticated copies of relevant portions of Plaintiff’s medical and mental 

health records, Dkt. No. 104-2, hereinafter “Ex. A” paginated as “AG.” 

3

In reply to his summary judgment motion, Plaintiff asserts that Defendant McCall’s 

declaration is “improper” because it is not signed. Dkt. No. 135 at 2. However, the 

declaration filed with the Court bears her signature and is therefore not defective as 

Plaintiff asserts. Dkt. No. 104 at 9.

4 Federal Rule of Evidence 201(b) permits a court to notice an adjudicative fact if it is “not 

subject to reasonable dispute.” Khoja v. Orexigen Therapeutics, 899 F.3d 988, 999 (9th 

Cir. 2018). The request for judicial notice is DENIED with respect to the case law listed 

because Plaintiff does not explain what indisputable facts he wishes to present therein. It 

is also DENIED with respect to the excerpt from a book presented because it does not

contain facts that are “not subject to reasonable dispute.” Id. 

5 The following facts are undisputed unless otherwise indicated.

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Mood Disorder, Exhibitionism [and] Bipolar Disorder, NOS (Not Otherwise Specified). 

Id. at ¶ 5; Ex. A at 74. Plaintiff also had prescriptions for the following mental health 

medications: Buspirone (“Buspar”) for anxiety and Lamotrigine (brand name “Lamictal”) 

for Bipolar Disorder.6Id.; Ex. A at 75. It was noted that Plaintiff had received treatment 

for mental illness in the Enhanced Outpatient Program (EOP). Id.; Ex. A at 74. 

According to Plaintiff’s mental health records, he was seen by PBSP psychologist, 

Dr. Jayson Gawthorpe, on January 25, 2016. McCall Decl. ¶ 6; Ex. A at AG 162. 

According to the progress notes, Dr. Gawthorpe noted that Plaintiff was angry and 

frustrated but calmed down during the session and his behavior was appropriate to the 

setting. Id. Dr, Gawthrope noted that Plaintiff was diagnosed with Bipolar Disorder, 

NOS; Exhibitionism; and Antisocial Personality Disorder. Id. On January 31, 2016, 

mental health staff noted that Plaintiff had missed or refused his bipolar medication, 

Lamictal, for three straight days. Id.; Ex. A at AG 165. Plaintiff’s records also indicated 

that he had previously refused Lamictal on April 27, 2015. Id.; Ex. A at AG 160. 

Defendant McCall was assigned as Plaintiff’s telemedicine psychiatrist in late 

January 2016. McCall Decl. ¶ 7. At that time, Defendant McCall had over 15 years of 

experience as a treating and consulting psychiatrist, including the treatment of anxiety, 

manic depression and bipolar disorder. Id. The classification of “NOS” with respect to 

Plaintiff’s Bipolar Disorder diagnosis is used to document symptoms that are consistent 

with bipolar disorder but fall short of the criteria needed to make a definitive diagnosis. Id. 

In general, NOS is most commonly ascribed when a mood disorder is characterized by 

depression alternating with short episodes of hypomania (a milder form of mania). Id. 

On February 2, 2016, Defendant McCall met with Plaintiff for a psychiatric 

evaluation. McCall Decl. ¶ 8; Ex. A at AG 166-171. She noted that his last visit to a 

psychiatrist was on December 28, 2015, when he reported mood swings and at times, a 

6 Throughout this order, “Buspirone” and “Buspar” are used interchangeably, as are 

“Lamictal” and “Lamotrigine.”

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desire to “expose himself.” Id.; Ex. A at AG 166. At their meeting, Plaintiff discussed his 

family history and substance abuse issues, which are documented in the records. Id. 

Defendant McCall noted that Plaintiff was alert, well-groomed and semi-cooperative 

although he lacked boundaries in asking personal questions. Id.; Ex. A at AG 167. She 

also noted that Plaintiff’s mood and affect were angry but not threatening. Id. Defendant 

noted that Plaintiff appeared to be intelligent but impulsive and sometimes had suicidal 

and homicidal ideations. Id.; Ex. A at AG 168, 171. Defendant suspected that Plaintiff’s 

history of mood variability was driven mostly by his personality structure and attempt to 

manage his situation and meet his needs. Id.; Ex. A at AG 168. Defendant’s assessment 

was that Plaintiff’s symptoms were not consistent with his diagnosed history of bipolar

disorder. Id. Defendant believed that Plaintiff’s mood varied way too quickly for his 

symptoms to even be categorized as hypomania. Id. Therefore, Defendant questioned the 

need for Lamictal to treat Plaintiff’s symptoms as his diagnosis needed to be clarified. Id.

Based on her evaluation and Plaintiff’s history of not adhering to his prescription, 

Defendant McCall began considering whether to taper Plaintiff off Lamictal. McCall 

Decl. ¶ 9. At the February 2, 2016 TelePsychiatry session, Defendant educated Plaintiff 

that his varying adherence to his medication could increase his risk for contracting a 

potentially fatal rash that is associated with Lamictal. Id.; Ex. A at AG 168. In addition, 

Defendant informed Plaintiff that if he continued his variable adherence, she would have to 

discontinue the medication for his safety. Id. Nevertheless, because Plaintiff was a new 

patient to her and had an existing diagnosis, Defendant McCall ordered prescriptions of 

both Buspirone and Lamictal for 90 days, to treat Plaintiff’s diagnosed anxiety and bipolar 

disorders. Id.; Ex. A at AG 169. Defendant also directed Plaintiff to follow up with her in 

three weeks for continued supportive therapy and medication management and to follow 

up with his on-site primary care psychologist, Dr. Gawthorpe, for weekly group therapy. 

Id. 

According to Plaintiff’s mental health records, Dr. Gawthorpe developed a 

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treatment plan on February 4, 2016, based on a consultation with Plaintiff and additional 

consultation with the Treatment Team Members. McCall Decl. ¶ 10; Ex. A at AG 172-

185. The Treatment Team included Defendant McCall, psychologist Dr. Sayer, and a 

correctional counselor from PBSP. Id.; Ex. A at AG 178. It was noted that Plaintiff 

presented in a depressed mood, but that his behavior was appropriate to the setting. Id.; 

Ex. A at AG 172. It was also noted that Plaintiff was mostly calm with an occasional burst 

of agitation. Id. Dr. Gawthorpe had Plaintiff discuss his medical conditions (diabetes, 

hypertension, chronic pain) as well as his family history and long history of substance 

abuse. Id. They also discussed his past treatment for impulsive behavior, exhibitionism 

(when agitated), and mood lability (an emotional response that is irregular or out of 

proportion to the situation). Id. Dr. Gawthorpe made the following diagnoses: Bipolar II 

Disorder; Unspecified Depressive Disorder with mixed features, and Exhibitionism. Id.; 

Ex. A at AG 172-174. Dr. Gawthorpe and Plaintiff established short-term and long-term 

goals with respect to modifying the negative aspects of Plaintiff’s behavior. Id.; Ex. A at 

AG 175-176. Dr. Gawthorpe saw Plaintiff again on February 5, 2016, for follow up and 

noted the following diagnoses: Bipolar Disorder NOS, Exhibitionism and Antisocial 

Personality Disorder (ASPD). Id.; Ex. A at AG 184-185. 

According to Plaintiff’s medical records, psychiatric technician Defendant J. 

Afdahl, who was assigned to dispense medication to inmates and to inspect their mouths to 

make sure they swallow the medication, reported that on the morning of February 9, 2016,

Plaintiff refused to show her his mouth even though directed to several times. McCall

Decl. ¶ 11; Ex. A at AG 101. Plaintiff was therefore placed under a Direct Observation 

Therapy (“DOT”) order, specifically to make sure that he actually swallowed his 

medications. Id. These types of incidents are a concern for several reasons, including 

custody and safety concerns McCall Decl. ¶ 11. It was common for inmates to “cheek” 

(i.e., not swallow) their medications and then save the medications for later sale to other 

inmates, or sometimes inmates save up their medications in this way and then take them all 

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at once, resulting in an overdose. Id. Specifically with respect to Lamictal, taking more 

than prescribed greatly increases the risk of a fatal rash. Id. Lastly, there is also a medical 

concern because if an inmate is not swallowing his medication, then he is not receiving the 

treatment he needs. Id. According to Plaintiff, he did not cheek his prescribed 

medications on February 9, 2016. Dkt. No. 137 at 47.

On February 10, 2016, Defendant McCall discontinued Plaintiff’s prescription for 

Lamictal with a plan to discuss safer alternatives. McCall Decl. ¶ 12; Ex. A at AG 103. 

She based her decision on the cheeking incident described above and Plaintiff’s past issues 

with adherence to taking Lamictal (April 2015 and January 2016). Id. Defendant McCall 

had previously discussed with Plaintiff at their February 2, 2016 meeting, the increased 

risk of a potentially fatal rash that could result from not taking his medication as 

prescribed. Id.; Ex. A at AG 167, 189. Furthermore, Defendant McCall had already 

questioned the need for Lamictal based on his clinical presentation as described above

after her initial meeting with him on February 2, 2016. See supra at 4. Due to this 

incident and past adherence issues, Defendant McCall prescribed and directed that 

Plaintiff’s medication, Buspirone, to be crushed and floated in a cup of water when given. 

McCall Decl. ¶ 12; Ex. A at 105, 189-190. There is no indication in the records, nor does 

Plaintiff allege, that he did not receive his medication crushed and floated in a cup of water 

as prescribed. Id. 

According to Plaintiff, Defendant McCall cancelled his Lamotrigine prescription on 

February 10, 2016, without any further examination or any discussion with him, nor did 

she inform him about any dangers about the medication. Dkt. No. 137 at 47, Hollis Decl. 

He also states that the instructions for Lamotrigine “explicitly state[] that Lamotrigine 

should not be suddenly stopped,” and that he had adverse effects along with increased 

symptoms when Defendant McCall discontinued the medications. Id. at 52. Plaintiff 

states that Defendant also decreased his Buspirone medication. Id. at 47. After the 

changes to his medication on February 10, 2016, Plaintiff started having increased anxiety, 

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feeling uneasy, and worrying. Id. at 49. Plaintiff states that when he notified Defendants 

McCall and Afdahl about his worsening symptoms, they did nothing for him. Id. He 

states that he also notified them of his increased depression, mood swings, and other 

increased symptoms associated with bipolar disorder, and they did nothing. Id.; id. at 53. 

Plaintiff states that he was never charged with hoarding prescription medications nor being 

in possession of any “saved up” prescribed medication. Id. at 50. Lastly, Plaintiff states 

that he did not have any life-threatening rash. Id. 

On February 23, 2016, Defendant McCall had a TelePsychiatry meeting with 

Plaintiff to discuss his medication management. McCall Decl. ¶ 13; Ex. A at AG 192-195. 

Defendant reviewed the relevant treatment records prior to this encounter, including the 

notes from February 2, 9 and 10, indicating that they had discussed Plaintiff’s lack of 

adherence to the Lamictal medication, the cheeking incident, and the discontinuation of the 

Lamictal prescription due to the serious and possibly fatal consequences of his failure to 

adhere to the prescription. Id.; Ex. A at AG 192. Plaintiff became very confrontational 

during this meeting and accused Psych Tech Afdahl of lying about the cheeking incident. 

Id. Plaintiff also accused his mental health providers of being “police sympathizers” and 

racist and indicated that he was going to file a lawsuit against Defendant and others. Id. In 

response, Defendant McCall offered an alternate provider (advanced practitioner) and also 

suggested decanoate, which is a long-acting form of psychiatric medication (antipsychotictype) that works by helping to restore the balance of certain natural substances 

(neurotransmitters) in the brain. Id. According to Defendant, decanoate helps patients 

think more clearly and is used for those who have trouble remembering to take their 

medication or there is a question regarding full adherence to their prescription. Id. 

According to the progress notes from this meeting, Plaintiff declined these suggestions and 

said he would refuse to work with her in the future. Id. According to Plaintiff, Defendant 

McCall did not offer decanoate or any other medication at this date, and he denies refusing 

such a prescription. Dkt. No. 137 at 48. His mental health records show that on February 

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25, 2016, Plaintiff submitted a health care services request form, asking to change his 

clinician. McCall Decl., Ex. A at AG 196.

On March 8, 2016, Defendant McCall had a TelePsychiatry meeting with Plaintiff 

to discuss his medication management. McCall Decl. ¶ 14; Ex. A at AG 197-200. Based 

on Plaintiff’s behavior and comments at their February 23, 2016 meeting, Defendant 

McCall had asked for his care to be transferred another psychiatrist; however, she was 

asked, presumably by the prison, to try to work with him. Id.; Ex. A at AG 197. During 

this meeting, Plaintiff reiterated that he did not want to work with her and informed her 

that he filed a 602 Appeal regarding her discontinuation of his Lamictal and that he was 

going to file a lawsuit against her. Id. As with her prior evaluations of Plaintiff’s 

behavior, Defendant McCall’s impression was that he was a patient with mood regulation 

and behavioral control issues who exhibited impulsivity and dominating behavior. Id.; Ex. 

A at AG 198. Plaintiff attempted to control his situation and control others, and distrusts 

authority and custody, i.e., any system or person that he believes is trying to control him. 

Id. Although he could become frustrated and angry easily, Plaintiff did not exhibit 

psychotic, suicidal or homicidal ideations. Id. Based on her encounters and review of the 

records, Defendant McCall’s working diagnosis was that Plaintiff had an unspecified 

personality disorder with antisocial and narcissistic traits. Id. It was not Defendant 

McCall’s opinion that Plaintiff was clearly Bipolar; rather, she believed they still had to 

clarify whether he was unipolar vs. bipolar vs. a personality structure issue. Id. According 

to Plaintiff, he needed medication to treat his bipolar disorder, as diagnosed by the 

Treatment Team on February 4, 2016. Dkt. No. 137 at 9-10. 

Based on her evaluations and encounters with Plaintiff, including his dissatisfaction 

with TelePsychiatry visits, Defendant McCall suggested that they have him follow up with 

an on-site psychiatrist for his continued supportive and medication management. McCall 

Decl. ¶ 15; Ex. A at AG 199. She also suggested, based on his symptoms and clinical 

presentation, that Plaintiff transition from the Enhanced Outpatient Program (EOP) to the 

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Correctional Clinical Case Management System (CCCMS), which would require fewer 

clinical visits and be less restrictive in terms of mobility and activity at the facility. Id. 

Defendant McCall did not want to restart Lamictal because of Plaintiff’s demonstrated 

problem with adherence to that prescription and the resulting safety issues (e.g., potentially 

fatal rash). Id. 

Defendant McCall had no contact with Plaintiff after March 8, 2016. McCall Decl. 

¶ 16. According to Plaintiff’s mental health records, on March 29, 2016, PBSP 

psychologist Dr. Hutchinson restarted Plaintiff’s prescription for Lamotrigine (Lamictal) at 

25 mg daily for two weeks and increased to 50 mg daily thereafter. Id.; Ex. A at AG 122. 

Dr. Hutchinson did not discuss his decision with Defendant McCall, nor was she aware of 

his reasoning. Id.

According to his mental health records, Plaintiff was admitted on April 26, 2016, to 

the Mental Health Crisis Beds (“MHCB”) alternative housing and seen by Staff 

Psychiatrist Dr. Theodore Utecht. McCall Decl. ¶ 17; Ex. A at AG 203-204. Dr. Utecht’s

progress notes indicate that Plaintiff was angry about having his level of care dropped and 

began showing suicidal ideations through starvation. Id.; Ex. A at AG 203. Dr. Utecht

noted that Plaintiff’s medications included Buspirone (30 mg daily) and Lamotrigine 

(Lamictal at 50 mg daily). Id. Dr. Utecht also noted that Plaintiff had refused his morning 

dose of Buspar. Id. Dr. Utecht discontinued the Buspar because he found that it was not 

medically indicated, and Plaintiff was not complying with the prescription. Id.; Ex. A at 

AG 204. Dr. Utecht’s Progress Notes show that Plaintiff said he would refuse “any psych 

meds” because he thought he did not need them. Id. 

On April 28 and 29, 2016, medical staff noted that Plaintiff refused his prescription 

for Lamotrigine. McCall Decl. ¶ 18; Ex. A at AG 205-207. Plaintiff was informed that by 

refusing his medication, he was at risk of a major medical or mental health complication. 

Id.; Ex. A at AG 206-207. Plaintiff told staff, “No! I don’t want it.” Id.; Ex. A at AG 205.

According to Plaintiff’s mental health records, PBSP on-call psychiatrist, Dr. Gene 

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Lubunao, was called by PBSP medical staff on May 3, 2016, to provide orders for one-toone suicide watch because Plaintiff was exhibiting self-injurious behaviors. McCall Decl. 

¶ 19; Ex. A at AG 208. Plaintiff’s records show that on May 5, 2016, he was seen by 

psychiatrist Dr. Utecht to discuss medication compliance. Id.; Ex. A at 209. Dr. Utecht’s 

progress notes indicated that Plaintiff had recently refused three Lamotrigine doses and 

refused two out of the six doses of Buspirone. Id. The medical staff recorded the “refusal” 

because Plaintiff refused to show his mouth as required under the Direct Observation 

Therapy order regarding his medication. Id. The order requires the Psych Tech to look

into the patient’s mouth to confirm he swallowed the medication. Id. Plaintiff said he took 

his medicine as ordered and he blamed the psych tech for following her instruction to 

verify through observation. Id.

According to Plaintiff’s medical records, medical staff reported that on May 8, 

2016, Plaintiff again refused his Lamotrigine prescription and became very angry and 

agitated with medical staff such that it would have been unsafe to attempt to give him his 

medication. McCall Decl. ¶ 20; Ex. A at AG 211. Plaintiff refused Lamotrigine again on 

May 24, 26, and 27, 2016, and again on June 2, 2016. Id.; Ex. A at AG 212-215. 

On June 3, 2016, Plaintiff was transferred to the Department of State Hospitals and 

was no longer under the jurisdiction of California Correctional Health Care Services. 

McCall Decl. ¶ 21. Defendant McCall left the CDCR on July 14, 2016. Id.

II. Summary Judgment

Summary judgment is proper where the pleadings, discovery and affidavits show 

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). A court will grant summary judgment 

“against a party who fails to make a showing sufficient to establish the existence of an 

element essential to that party’s case, and on which that party will bear the burden of proof 

at trial . . . since a complete failure of proof concerning an essential element of the 

nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 

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Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 

the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Generally, the moving party bears the initial burden of identifying those portions of 

the record which demonstrate the absence of a genuine issue of material fact. See Celotex 

Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 

at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 

than for the moving party. But on an issue for which the opposing party will have the 

burden of proof at trial, the moving party need only point out “that there is an absence of 

evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 

to the motion is merely colorable, or is not significantly probative, summary judgment may 

be granted. See Liberty Lobby, 477 U.S. at 249-50. 

The burden then shifts to the nonmoving party to “go beyond the pleadings and by 

her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 

file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 

Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 

showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 

The Court’s function on a summary judgment motion is not to make credibility 

determinations or weigh conflicting evidence with respect to a material fact. See T.W. 

Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 

When the parties file cross-motions for summary judgment, the district court must consider 

all of the evidence submitted in support of both motions to evaluate whether a genuine 

issue of material fact exists precluding summary judgment for either party. The Fair 

Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 

2001). A district court can only consider admissible evidence in ruling on a motion for 

summary judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 

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(9th Cir. 2002).

A. Deliberate Indifference

The treatment a prisoner receives in prison and the conditions under which he is 

confined are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 

509 U.S. 25, 31 (1993). A mentally ill prisoner may establish unconstitutional treatment 

on behalf of prison officials by showing that officials have been deliberately indifferent to 

his serious medical needs. See Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994); 

see also Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (mental health care 

requirements analyzed as part of general health care requirements). A serious medical 

need exists if the failure to treat a prisoner’s condition could result in further significant 

injury or the unnecessary and wanton infliction of pain. Doty, 37 F.3d at 546; see, e.g., 

Conn v. City of Reno, 591 F.3d 1081, 1094 (9th Cir. 2010) (a heightened suicide risk or an 

attempted suicide is a serious medical need; reversing grant of summary judgment to 

transporting police officers where plaintiffs presented sufficient evidence for a jury to find 

that the decedent's pre-suicidal actions objectively evidenced a serious medical need), 

reinstated as modified by 658 F.3d 897 (9th Cir. 2011); Capps v. Atiyeh, 559 F. Supp. 894, 

916 (D. Ore. 1983) (inmate suffers 8th Amendment pain whenever he must endure 

untreated serious mental illness for any appreciable length of time). 

Under the Eighth Amendment, deliberate indifference requires a showing that 

prison officials possess a sufficiently culpable state of mind. See Farmer v. Brennan, 511 

U.S. 825, 834 (1994). Specifically, it must be shown both that officials were subjectively 

aware of the serious medical need and failed to adequately respond to that need. Conn, 

591 F.3d at 1096. Put another way, a prison official is deliberately indifferent if he knows 

that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to 

take reasonable steps to abate it. Farmer, 511 U.S. at 837. The prison official must not 

only “be aware of facts from which the inference could be drawn that a substantial risk of 

serious harm exists,” but he “must also draw the inference.” Id. If a prison official should 

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have been aware of the risk, but was not, then the official has not violated the Eighth 

Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175,

1188 (9th Cir, 2002). Additionally, the officials’ actions must be the cause of the injury 

suffered as a result of their deliberate indifference. Conn, 591 F.3d at 1098. An isolated 

failure to respond to a non-serious medical need cannot, by itself, establish an 

unconstitutional health care system. See Doty, 37 F.3d at 547. 

“A difference of opinion between a prisoner-patient and prison medical authorities 

regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 

1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of 

medical opinion as to the need to pursue one course of treatment over another is 

insufficient, as a matter of law, to establish deliberate indifference, Toguchi v. Chung, 391 

F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 

Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). In order to prevail on a claim 

involving choices between alternative courses of treatment, a plaintiff must show that the 

course of treatment the doctors chose was medically unacceptable under the circumstances 

and that he or she chose this course in conscious disregard of an excessive risk to 

plaintiff’s health. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th 

Cir. 1996) (citing Farmer, 511 U.S. at 837).

B. Analysis

Plaintiff claims that Defendant Afdahl made a false claim that he cheeked his 

medication and refused to take it. Dkt. No. 1 at 9. Plaintiff claims that Defendant Afdahl 

conspired with Defendant McCall to discontinue his mental health medications and to 

reduce another to a lower dosage. Id. Plaintiff claims that due to Defendants’ interference 

with his mental health medication, he suffered psychological depression, anxiety, and 

symptoms associated with bipolar. Id. at 10. When he notified Defendants McCall and 

Afdahl that he was suffering anxiety, increased depression, mood swings, and symptoms 

associated with bipolar, they knowingly failed to respond. Id. Plaintiff claims that 

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Defendants acted with deliberate indifference to his serious mental health needs. Id. 

Defendants concede in their summary judgment motion that a question of fact exists 

as to whether Plaintiff’s mental health issues constitute a “serious medical need.” Dkt. No. 

104 at 11. They assert, however, that Plaintiff cannot establish that they knowingly 

disregarded a substantial risk of serious harm to Plaintiff. Id. To that end, Defendants 

assert that the issues for their motion are whether the discontinuation of Plaintiff’s 

Lamictal prescription was (1) medically unacceptable under the circumstances and (2)

chosen in conscious disregard of an excessive risk to Plaintiff’s health. Dkt. No. 104 at 12. 

Defendants assert that Defendant McCall’s declaration and supporting records show that 

her decision to stop the Lamictal prescription was appropriate under the circumstances, 

and that she had two equally compelling reasons for stopping the medication: (1) her 

evaluation of Plaintiff’s symptoms and clinical presentation, and (2) his failure to adhere to 

the prescription, which could have fatal consequences. Id.

In his cross-motion, Plaintiff asserts that Defendants intentionally interfered with 

his prescribed medications with deliberate indifference to his serious mental health needs. 

Dkt. No. 123 at 1. He asserts in opposition to Defendants’ motion that there exists a 

genuine issue of material fact that precludes summary judgment being granted in their 

favor. Dkt. No. 137 at 1.7 Plaintiff asserts that when he arrived at PBSP, he had a valid 

prescription by a psychiatrist for Lamotrigine to treat his bipolar disorder and Buspirone to 

treat his diagnosed anxiety. Id. at 2; Dkt. No. 123 at 6. He asserts that Defendant McCall 

never spoke with him before discontinuing his medication on February 10, 2016, and that 

he received no medication to treat his bipolar disorder since that date through March 28, 

2016. Dkt. No. 137 at 3, 21. Plaintiff states that he submitted requests for mental health 

7

In reply, Defendants object to several of Plaintiff’s statements in his declaration as 

inadmissible hearsay and improper lay opinion of medical diagnoses and standard of care. 

Dkt. No. 138 at 2-3. Defendants are correct. Hearsay evidence is inadmissible and thus 

may not be considered on summary judgment. See Orr, 285 F.3d at 778. Accordingly, 

Plaintiff’s statements referring to medical articles and other doctors’ statements regarding 

treatment shall not be considered. Id.

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treatment on February 22 and 25, 2016, such that both Defendants were aware of his 

increased mental health symptoms, but they did nothing. Id. at 4. Plaintiff also denies that 

Defendant McCall ever offered him decanoate as an alternative medication and that he 

declined it. Id. at 5. He asserts that every attempt to get mental health treatment for his 

bipolar symptoms and increased anxiety from Defendants were “meaningless.” Id. at 6; 

Dkt. No. 123 at 11. He asserts that Defendants “must have known of a risk of harm” to 

him by the “obvious and extreme nature of Plaintiff’s abnormal behavior and repeated 

request for mental health treatment.” Dkt. No. 137 at 6-7; Dkt. No. 123 at 16.

In reply, Defendants assert that Plaintiff has not established that triable issues of 

fact remain regarding their alleged deliberate indifference to his mental health symptoms, 

and that his opposition provides no basis for disputing Defendant McCall’s declaration that 

she based her medication decision on his failure to adhere to his prescription and the 

associated risks. Dkt. No. 138 at 1. They also argue that although Plaintiff clearly 

disagrees with Defendant McCall’s decision, his disagreement does not establish a 

violation of his Eighth Amendment rights. Id. 

After considering all the evidence submitted in support of Defendants’ summary 

judgment motion and Plaintiff’s cross-motion, the Court finds there exists no genuine 

issues of material fact to preclude summary judgment in favor of Defendants. Riverside 

Two, 249 F.3d at 1135. Assuming Plaintiff had serious mental health needs, there is no 

genuine issue of material fact with respect to the adequacy of Defendants’ response to that 

need. See Conn, 591 F.3d at 1096. Defendant McCall treated Plaintiff from February 2, 

2016 through March 8, 2016, during which they had three encounters. See supra at 4-9. 

When she began treating Plaintiff, Defendant McCall had over 15 years of experience as a 

psychiatrist treating patients with mood disorders, including anxiety, manic depression,

and bipolar disorder. Id. at 3-4. Her initial assessment at their first meeting was that 

Plaintiff’s symptoms were not consistent with his diagnosed history of bipolar disorder. 

Id. at 4. She believed that his mood varied way too quickly for his symptoms to even be 

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categorized as hypomania. Id. Defendant McCall therefore questioned the need for 

Lamictal to treat Plaintiff’s symptoms as his bipolar diagnosis needed to be clarified. Id. 

Her working diagnosis was that Plaintiff had an unspecified personality disorder with 

antisocial and narcissistic traits. Id. at 8. Defendant McCall’s clinical impression from 

their first meeting on February 2, 2016, remained the same in her evaluations of Plaintiff 

on their subsequent visits on February 23, and March 8. Id. at 4, 7-8. In her medical 

opinion, Lamictal was not indicated. Id. But even if Defendant McCall was incorrect in 

questioning Plaintiff’s bipolar diagnosis and therefore the Lamictal prescription, she had 

another reason for concern, i.e., Plaintiff’s failure to take the Lamictal as prescribed since 

staff had reported that Plaintiff failed to take the Lamictal for three straight days during the 

prior week. Id. at 3, 4. Defendant McCall therefore educated Plaintiff at their first 

meeting about the increased risk for contracting a potentially fatal rash due his varying 

adherence to the medication. Id. Nevertheless, she decided to renew his medication for 90 

days since he was a new patient and had an existing diagnosis. Id. at 4. However, when 

she learned that Plaintiff had again failed to adhere to the Lamictal prescription with an 

alleged cheeking incident on February 9, 2016, despite her warnings at their first meeting

the week prior, she decided to discontinue the medication the next day. Id. at 6. The fact 

that she did not discuss the matter again with Plaintiff before discontinuing the medication 

does not indicate deliberate indifference, especially since she had already discussed the 

risks for not adhering to his medication and she was now acting to abate the risk of harm to 

Plaintiff if he continued to skip dosages. Accordingly, the evidence shows that Defendant 

McCall’s decision to discontinue Lamictal was reasonable, based on the increased risk to 

Plaintiff’s health due to his failure to adhere to the prescription. 

Moreover, as Defendants assert, even if Defendant McCall’s clinical impression 

was incorrect and Lamictal was indicated to treat Plaintiff’s bipolar condition, her decision 

at most amounts to negligence or medical malpractice, which is insufficient to make out a 

violation of the Eighth Amendment. See Toguchi, 391 F.3d at 1060; Hallett v. Morgan, 

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296 F.3d 732, 744 (9th Cir. 2002). Nor does Plaintiff and Defendant McCall’s difference 

in opinion with respect to his bipolar diagnosis and its proper treatment give rise to a § 

1983 claim. Franklin, 662 F.2d at 1344. With regard to the fact that other doctors’ 

treatment plans differed from Defendant McCall, a showing of nothing more than a 

difference of medical opinion over the course of treatment is insufficient, as a matter of 

law, to establish deliberate indifference. Toguchi, 391 F.3d at 1058. In order to prevail on 

a claim involving choices between alternative courses of treatment, a plaintiff must show 

that the course of treatment the doctors chose was medically unacceptable under the 

circumstances and that he or she chose this course in conscious disregard of an excessive 

risk to plaintiff’s health. Id.; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). As 

discussed above, there is no evidence showing that Defendant McCall chose to discontinue 

the Lamictal with a conscious disregard of an excessive risk to Plaintiff’s health but rather, 

the evidence shows that the medication change was based on an effort to reduce a risk to 

his health due to his failure to adhere to the prescription. Accordingly, it matters not that a 

previous psychiatrist had prescribed Lamictal or that a different doctor, Dr. Hutchinson, 

later decided to prescribe Lamictal where Defendant McCall’s decision was not medically 

unacceptable under the circumstances and she did not choose this course in a conscious 

disregard of an excessive risk to Plaintiff’s health. Id. Lastly, Plaintiff asserts that he had 

a medical need for Lamictal, but his actions indicate otherwise. The undisputed evidence 

shows that even after the Lamotrigine was again prescribed on March 29, 2016, Plaintiff 

repeatedly refused to take it during April and May 2016, until he was transferred to the 

Department of State Hospitals on June 3, 2016. See supra at 9-10. 

With respect to Defendant Afdahl, the medical records submitted in evidence 

indicate only one encounter with Plaintiff, i.e., on February 9, 2016, when Plaintiff refused 

to show her his mouth to confirm that he had swallowed his medication. See supra at 5; 

Ex. A at AG 101. According to Defendants, Defendant Afdahl followed CDCR procedure 

when she reported Plaintiff’s cheeking on February 9, 2016. Dkt. No. 104 at 13. 

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According to Plaintiff, he denies that he cheeked his medication on that date and simply

alleges that Defendant Afdahl lied about the incident. See supra at 5. However, Plaintiff 

does not deny that he refused to open his mouth to allow Defendant Afdahl to inspect the 

inside of his mouth. But even if it were true that Defendant Afdahl wrongly accused 

Plaintiff of cheeking, it does not establish that she acted with deliberate indifference to his 

serious mental health needs. Rather, it is undisputed that Defendant Afdahl’s duty at the 

time was to ensure that Plaintiff was taking his medicine as prescribed. As a result of the 

incident, Plaintiff was not denied his medication; rather, the prison took steps to ensure 

that he adhered to his prescriptions by placing him on Direct Observation Therapy. See 

supra at 5. There is no evidence that Defendant Afdahl knew that Defendant McCall 

would discontinue the Lamictral completely if she falsely reported that Plaintiff was not 

taking his medication, and that she intended for that to happen, knowing it would place 

Plaintiff at a substantial risk of serious harm. Rather, the undisputed evidence shows that 

Defendant Afdahl acted to ensure that Plaintiff was actually swallowing the medication he 

needed to treat his mental health needs. That is not deliberate indifference. 

Furthermore, there is no evidence to support Plaintiff’s claim that Defendants 

Afdahl and McCall conspired to discontinue his medication. A civil conspiracy is a 

combination of two or more persons who, by some concerted action, intend to accomplish 

some unlawful objective for the purpose of harming another which results in damage. 

Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove a civil 

conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose 

or common design and understanding, or a meeting of the minds in an unlawful agreement. 

Id. Plaintiff’s simple assertion that Defendants “conspired” is simply conclusory and not 

supported by factual allegations, much less any evidence, establishing a conspiracy, i.e., a 

“meeting of the minds.” Id.

Lastly, Plaintiff’s claim that Defendants were both aware of his worsening 

condition because he submitted two requests for mental health treatment on February 22 

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and 25, 2016, is unsupported by the evidence. With regard to Defendant Afdahl, the health 

care services request form submitted on February 22, 2016, makes no mention of 

Defendant Afdahl such that she might have been notified of Plaintiff’s complaint against 

her, and neither was Defendant Afdahl involved in the response to this request. McCall 

Decl., Ex. A at AG 191. The same is true of the health care services request form 

submitted on February 25, 2016. Id.; Ex. A at 196. Accordingly, there is no evidence that 

Defendant Afdahl was involved in or was aware of Plaintiff’s ongoing mental health needs

after their one-time encounter on February 9, 2016, such that her failure to respond to that 

need would indicate deliberate indifference. Nor can Plaintiff establish an Eighth 

Amendment claim against Defendant Afdahl based on that single encounter. See Doty, 37 

F.3d at 547. 

With regard to Defendant McCall, as with Defendant Afdahl, her name was not 

mentioned in either of the requests for treatment discussed above, nor was she involved in 

the responses thereto. Although Plaintiff asserts generally in opposition that he notified 

Defendant McCall about his increased symptoms and she did nothing, Dkt. No. 137 at 49, 

there is no evidence that Defendant was actually aware that her modification of Plaintiff’s

medications was causing him further harm and yet she decided to disregard it. After 

changing his medications on February 10, 2016, Defendant McCall saw Plaintiff on 

February 23, 2016, and discussed his medication management. See supra at 6-7. 

According to the progress notes from that meeting and the subsequent meeting on March 

8, 2016, her observations of Plaintiff’s behavior noted no changes from one meeting to the 

next, and he did not exhibit any “extreme” or abnormal behavior. Id. Rather, there might 

have been an improvement since it was noted that Plaintiff “sometimes” exhibited suicidal 

and homicidal ideations at the February 8, 2016 meeting, and no such ideations at their last 

meeting on March 8, 2016. See supra at 4, 8. This evidence does not establish that 

Defendant McCall was actually aware or even that she “must have known of a risk of 

harm” due to the “obvious and extreme nature” of his abnormal behavior, as Plaintiff 

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asserts. Plaintiff also denies that Defendant McCall offered him a different medication, 

i.e., decanoate, despite the detailed record of it provided in the progress notes. Id. at 7, 14. 

However, this fact is immaterial. Even if it were true that Defendant McCall did not offer 

alternatives, it does not render her decision to alter his medications constitutionally 

deficient. There is nothing in her progress notes from that meeting or the subsequent 

meeting on March 8, 2016, to indicate that Defendant McCall was aware that the changes 

she had made to Plaintiff’s medications had caused his mental health to worsen such that 

her failure to respond indicates deliberate indifference. Even if she should have been 

aware of the risk and was not, as the evidence indicates, Defendant has not violated the 

Eighth Amendment, no matter how severe the risk. Gibson, 290 F.3d at 1188. 

Based on the foregoing, the Court finds there are no genuine issues of material fact 

that exist to preclude summary judgment in favor of Defendants with respect to the Eighth 

Amendment claim against them. Riverside Two, 249 F.3d at 1135. 

 

CONCLUSION

For the reasons discussed above, Defendants M. McCall and J. Afdahl’s motion for 

summary judgment is GRANTED. Dkt. No. 104. Plaintiff’s cross-motion for summary 

judgment is DENIED. Dkt. No. 123. The Eighth Amendment claims against Defendants

are DISMISSED with prejudice. 

This order terminates Docket Nos. 104 and 123.

IT IS SO ORDERED.

Dated: __June 18, 2020___________ ________________________

BETH LABSON FREEMAN

United States District Judge

Order Granting Defs.’ MSJ; Denying Pl.’s MSJ

PRO-SE\BLF\CR.17\00326Hollis_grant.D-MSJ;deny.Pl-MSJ

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