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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL DIVISION

James Alan Bush, Petitioner, v. Dr. Dean Winslow, M.D., Respondent.

Case No. EE605073 PETITION FOR WRIT OF HABEUS CORPUS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Judge Philip Pennypacker

I. INTRODUCTION 1. Petitioner, an in-custody patient, contends that he is being denied necessary and adequate medical treatment and care for his serious medical condition, i.e., HIV/AIDS, by Dr. Dean Winslow, M.D., who, on March 8th, 2010, refused to provide the petitioner with needed specialized treatment and care for his life-threatening illness, and has thereafter, with notice and knowledge of the petitioners worsening condition, continued to deprive the petitioner of proper care and PETITION PAGE 1 OF 11 EE605073

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treatment by failing and refusing to direct that alternative care be provided on a recurring basis as ordered by another physician also specializing in the treatment and care of HIV/AIDS, thereby subjecting the petitioner to cruel and unjust hardship in conscious disregard of the petitioners rights guaranteed him by the Eighth Amendment to the U.S. Constitution. Petitioner contends further that the aforementioned acts of Dr. Winslow are knowing, deliberate and intentional, and in conscious disregard for the health and well-being of the petitioner, and were undertaken in retaliation for the petitioner having filed a lawsuit against him, and were therefore punitive, and not justified by medical reasons. II. PARTIES 2. Petitioner, James Alan Bush (DWF967-08086698), is a pretrial detainee at the Santa Clara County Main Jail, and has been in the custody and control of the aforementioned institution since December 13th, 2008; he was treated for multiple serious medical conditions by Dr. Dean Winslow, M.D., from February, 2009, and until March 8th, 2010. 3. Respondent, Dr. Dean Winslow, M.D., is a licensed physician under contract to provide obligatory medical services to patient-inmates for the Santa Clara County Department of Correction; he is an employee of the Ira Greene P.A.C.E. Clinic, which provides exclusive treatment of HIV-positive patients incarcerated by the aforementioned department. III. PROCEDURAL BACKGROUND 4. On August 1st, 2010, Petitioner filed a habeus corpus petition in the Superior Court of California, County of Santa Clara, under case number PETITION PAGE 2 OF 11 EE605073

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EE605073, which raised the same issues as presented therein; it sought an order from the aforementioned court, directing that the Santa Clara County Department of Correction provide to the petitioner the same specialized treatment and care for HIV/AIDS that is otherwise afforded to all HIV-positive inmates, and which is necessary and essential for those suffering from this life-threatening condition. 5. On October 7th, 2010, the Court, having found that the petition stated a prima facie case for relief, ordered the Santa Clara County Department of Correction, by and through its counsel of record, the Santa Clara County Counsel, to file a response to the petition. 6. On October 22nd, 2010, Neysa Fligor, Deputy Counsel, Santa Clara County Counsel, filed a response to the petition on behalf of the Santa Clara County Department of Correction, in which MaryAnn Barry, Associate Director, Santa Clara Valley Health & Hospital Systems, declared, under penalty of perjury, that, prior to the August 1st, 2010, filing of the petition, and subsequent to the March 8th, 2010, termination of the doctor-patient relationship by Respondent Winslow, the petitioner received specialized treatment and care for HIV/AIDS, and, in particular, on March 17th, 2010, and July 30th, 2010; she also stated that the petitioenr was seen by a physician specializing in the treatment and care of HIV/AIDS on August 19th, 2010, approximately 18 days after the petition was filed, implying that the petitioner was receiving regularly scheduled treatment by such a physician, even though this occurred nearly eight months after the termination of the doctor-patient relationship by the respondent, and has not occurred again since. [See Exhibit A.] On November 9th, 2010, in spite of the contradiction between the PAGE 3 OF 11 EE605073

PETITION

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statements made by the petitioner and by the respondent, the Court denied the request by the petitioner for an evidentiary hearing in order to resolve the conflicting statements using the petitioners medical records, and then dismissed the petition based on the abovedescribed statements made by the respondent. [See Exhibit B.] 8. In this amended petition, Petitioner seeks the revocation of the order dismissing the original petition, on the ground that statements made by the respondent in a related civil proceeding subsequent to the dismissal of the petition contradict the statements made by the respondent in the response to the petition, and that, therefore, the statements made in the aforesaid response were false. Specifically, in her answer to the interrogatories propounded upon her by the petitioner in the aforementioned civil proceeding, MaryAnn Barry admits that the petitioner was not seen by any physician on March 17th, 2010, and that on July 30th, 2010, the petitioner was treated by a regular jail physician for an issue unrelated to HIV/AIDS, rather than by a physician specializing in the treatment and care of HIV/AIDS; moreover, although she indicated that Respondent Winslow did eventually issue a referral to a physician-specialist 18 days subsequent to the filing of the petition, she also admits that the respondent failed to provide any further such treatment after the initial August 19th, 2010, referral, in spite of such an order by the physician-specialist. [See Exhibit C.] IV. STATEMENT OF FACTS 9. On March 8th, 2010, Petitioner was scheduled for a routine evaluation and monitoring of his serious medical condition, i.e., HIV/AIDS, by the PETITION PAGE 4 OF 11 EE605073

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respondent, specifically, to review blood tests taken two days prior, and to report new symptoms associated with the disease, which included a severe, reoccurring skin rash, and a continuing intolerance to his HIV medications; however, at the examination, the respondent refused to treat the petitioner, citing the fact that the petitioner has filed a civil suit against him as the only justification. The respondent then ejected the petitioner from the examination of the petitioner, and without treating his new symptoms, and without reviewing his blood test results. The respondent further stated his intent to prohibit the petitioner from receiving any specialized treatment and care for HIV/ AIDS in the future, in spite of the petitioners request to be seen by another physician-specialist. 10. Over eight months after terminating the doctor-patient relationship, and in an effort to mitigate the implications of his refusal to provide necessary and adequate medical treatment to the petitioner, the respondent referred the petitioner to another physician specializing in the treatment and care of HIV/AIDS on August 19th, 2010, which was 18 days after the original petition was filed; however, since that time, the respondent has refused to implement an order by the physicianspecialist for reguarly scheduled P.A.C.E. Clinic appointments. [See Exhibit C.] 11. Petitioner alleges that the respondent has taken virtually no action to provide alternative care subsequent to the August 19th, 2010, referral, and that any such actions will be so delayed as to aggravate the petitioners medical problems.

PETITION

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EE605073

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V. PRAYER FOR RELIEF WHEREFORE, Petitioner is without remedy save by the issuance of a writ of habeus corpus, and prays for relief as follows: 1. That the Court issue a writ of habeus corpus; 2. That the Court determine and declare that the acts of the respondent, as set forth above, violate rights secured to the petitioner by the Eighth Amendment to the U.S. Constitution; 3. That, upon hearing, the Court enjoin the respondent from refusing to provide and/or delaying provision of necessary medical treatment and care to the petitioner either at suitable and adequate facilities within the Santa Clara County Main Jail or the P.A.C.E. Clinic or elsewhere; 4. That the Court regularly evaluate and monitor the delivery of medical treatment and care of the petitioner while confined at the Santa Clara County Main Jail and insure the compliance of the respondent with the Courts oreders herein; 5. That the Court appoint counsel, and that the respondent be required to pay the legal costs and expenses herein, including reasonable provision for any additional costs incurred by the petitioner; and, 6. That the Court grant such further and additional relief that is appropriate herein.

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VI. VERIFICATION I, James Alan Bush, state that I am the petitioner in this action. I have read the foregoing petition for writ of habeus corpus and the facts stated herein are true of my own knowledge, except as to those matters that are therein stated on my own information and belief, and as to those matter, I believe them to be true. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at San Jose, California, on May 23rd, 2011. [signature] Petitioner in pro per DWF967-08086698 PFN and Booking Number VII. MEMORANDUM OF POINTS AND AUTHORITIES 1. UNTREATED MEDICAL CONDITIONS CAN CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT. There are two components to establishing violations of the Eighth Amendments cruel and unusual punishment provision as it relates to medical care: (1) the inmate must demonstrate a serious medical need; and, (2) that the jail authorities knew about the medical need and refused to remedy it [Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) ]. A medical need is serious if it has been diagnosed by a physician mandating treatment or...is so obvious that even a lay person would easily recognize the necessity for a doctors attention [Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) ]. PETITION PAGE 7 OF 11 EE605073

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Petitioner is, and was, in need of specialized medical treatment and care to monitor his symptoms and the progression of his lifethreatening condition, which, without, the petitioner is at risk of serious bodily injury and possibly death. Deliberate indifference to serious medical needs is shown when jail officials have prevented an inmate from receiving recommended treatment or when an inmate is denied access to medical personnel capable of evaluating the need for treatment [Ramos v. Lamm, 639 F.2d 559, 575 (10 Cir. 1980) A court has held that a doctors decision to ]. take an easier and less efficacious course of treatment may constitute deliberate indifference [Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) A showing of indifference does not require proof of an intent ]. to inflict pain, but the conduct must demonstrte a knowing indifference to a serious medical need [Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir. 1993) ]. Having actual knowledge of the substantial risk of harm to the petitioner, Respondent Winslow, by his refusal to provide necessary medical care and by his failure to direct that alternative care be provided, in deliberately indifferent to the serious medical needs of the petitioner, especially because Respondent Winslow knows that the petitioner must rely solely on him to provide such treatment and care due to the petitioners confinement. In Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986), the Court stated the settled rule that the unnecessary and wanton infliction of pain...constitutes cruel and unusual punishment forbidden by the Eighth Amendment. By denying the petitioner needed specialized treatment and care, PAGE 8 OF 11 EE605073

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Respondent Winslow is subjecting the petitioner to a risk of serious bodily harm and possibly death, constituting the infliction of cruel and unusual punishment thereby, in violation of the Eighth Amendment to the U.S. Constitution. 2. A DENIAL OF MEDICAL CARE FOR NON-MEDICAL REASONS CONSTITUTES AN EIGHTH AMENDMENT VIOLATION. If jail staff delay recommended medical treatment or refuse it altogether for non-medical reasons, the Eighth Amendment is violated [Durmer v. OCarrol, 991 F.2d 64, 69 (3d Cir. 1993) ]. Respondent Winslow refused to provide necessary medical care and failed and refused to direct that alternative care be provided in retaliation for the petitioner having filed a lawsuit against him. (In other words, Respondent Winslows termination of the petitioners medical care was punitive, and not justified by medical reasons.) Furthermore, as shown in Exhibit C, Respondent Winslow has failed and/or refused to follow another physicians order that the petitioner be seen by the P.A.C.E. Clinic, and has ever since continued to fail to provide specialized treatment and care for HIV/AIDS to the petitioner. Therefore, the aforementioned acts of Respondent Winslow constitute a violation of the Eighth Amendment. 3. THE FAILURE TO PROVIDE PROPER MEDICAL CARE TO A PRETRIAL DETAINEE VIOLATES THE EIGHTH AMENDMENT. The United States Supreme Court has stated that the deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoners needs or by prison PETITION PAGE 9 OF 11 EE605073

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guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed [Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) ]. The courts have held that pretrial detainees are entitled to the same constitutional protections afforded convicted inmates who have serious medical needs [Roberts v. City of Troy, 773 F.2d 720, 773 (6th Cir. 1985) ]. In 1994, the California legislature amended Penal Code 2600 and 2601 to restrict the prisoners rights. The new amended law allows an inmate to be deprived of only such rights, as is reasonably related to legitimate penological interests [Penal Code 2600]. Although on its face, Penal Code 2600 applies only to those confined in state prisons, the California Supreme Court declared that equal protection principles required its application to county jail inmates [De De Lancie v. Superior Court, 31 Cal. 3d 865, 872, 183 Cal. Rptr. 866, 647 P.2d 142 (1982) In response to these changes, the legislature directed the ]. Department of Corrections to develop guidelines for local detention facilities [Penal Code 6030]. These regulations, codified in Title 15 of the California Code of Regulations, mandates that the local facility shall have the responsibility to ensure provision of emergency and basic health care services to all inmates [15 CCR 1200]; however, these regulations must be implemented so as not to invalidate a constitutional right. The standards set forth in Title 15 constitute contemporary notions of decency and are advisory in nature, but the courts do not rely blindly on these standards as fixing constitutional minimums [Inmates of the Riverside County Jail v. Clark, 144 Cal. App. 3d 850, 860, 192 Cal. Rptr. 823 (4th Dist. 1983) ]. PETITION PAGE 10 OF 11 EE605073

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One court has observed that [t]he requirement of deliberate indifference is less stringent in cases involving a prisoners medical needs than in other cases involving harm to incarcerated individuals because the states responsibility to provide medical care ordinarily does not conflict with competing administrative concerns [Hudson v. McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) ]. VIII. CONCLUSION For the above-stated reasons, the relief sought in the petition should be granted. Dated: May 23rd, 2011 Respectfully submitted, [signature] James Alan Bush Petitioner in pro per

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EE605073

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL DIVISION

In re James Alan Bush, On Habeus Corpus

Case No. EE605073 EXHIBIT A Judge Philip Pennypacker

Petitioner hereby incorporates Exhibit A, in support of the attached Amended Petition for Writ of Habeus Corpus, which consists of the informal response by the respondent and a sworn declaration that refute the claims made by the petitioner in the original petition. Specifically, on page 3, lines 6 through 8, of the informal response, the respondent claims that the petitioner received medical care for [HIV/AIDS] at least three times since the [termination of the doctorpatient relationship by Dr. Winslow]. Likewise, on page 1, line 28, it is stated in the declaration that the petitioner received treatment for [HIV/AIDS] on 3/17/2010, 6/30/2010, and 8/19/2010. EXHIBIT A PAGE 1 OF 4 EE605073

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL DIVISION

In re James Alan Bush, On Habeus Corpus

Case No. EE605073 EXHIBIT B Judge Philip Pennypacker

Petitioner hereby incorporates Exhibit B, in support of the attached Amended Petition for Writ of Habeus Corpus, which consists of the order issued by the Superior Court of California on November 9th, 2010, denying the original petition filed on August 1st, 2010. Instead of ordering an evidentiary hearing in order to resolve the conflict between the claims made in the petition and those made by the respondent in his informal response, in which medical records could have been presented to definitively settle the dispute, the presiding judge, namely, the Honorable Gilbert T. Brown, denied the petition based on the false statements made by the respondent. // EXHIBIT B PAGE 1 OF 2 EE605073

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San Jose, California 95110 Plaintiff in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL DIVISION

In re James Alan Bush, On Habeus Corpus

Case No. EE605073 EXHIBIT C Judge Philip Pennypacker

Petitioner hereby incorporates Exhibit C, in support of the attached Amended Petition for Writ of Habeus Corpus, which consists of the answer to interrogatories by the respondent that were propounded upon him by the petitioner in the civil suit filed against the respondent. In the Response to Interrogatory No. 6, on page 14, the respondent states that the petitioner did not receive any treatment for HIV/AIDS on 3/17/2010 or 6/30/2010, as was stated in the informal response. Furthermore, in the Response to Interrogatory No. 5, the respondent states that the petitioner did not receive specialized treatment and care for HIV/AIDS, even though it was ordered by a physician-specialist on 8/19/2010, namely, Dr. Edward Brooks, M.D.. EXHIBIT C PAGE 1 OF 2 EE605073

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