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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 REPLY TO INFORMAL RESPONSE

Judge Philip Pennypacker

Pursuant to Rule 4.551(b) of the California Rules of Court and the Courts Request for Informal Response, Petitioner hereby replies to the informal response of Respondent, Dr. Dean Winslow, M.D., and upon information, belief, and established fact, states the following: I. INTRODUCTION In this reply, Petitioner will show that, contrary to the respondents claim otherwise, the petitioner has fully exhausted his administrative remedies per the requirements of the Santa Clara County Department of REPLY PAGE 1 OF 10 EE605073

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Correction and Santa Clara Valley Medical Center Adult Custody Health Services, and that the respondent still has failed to address the petitioners grievance by refusing to provide specialized treatment and care for his life-threatening condition. Petitioner will also show that, although another physician ordered that he receive specialized treatment and care for his subject condition, the respondent refused to carry out the order; moreover, Petitioner will prove that, since the termination of the doctor-patient relationship by the respondent, the petitioner only received such treatment and care once, and, since the filing of his grievance, and until present, the petitioner has not received any such treatment and care. Finally, Petitioner will demonstrate that the claim made in his petition has not been brought in any other forum, and that the United States District Court denied the respondents motion to declare the petitioner a vexatious litigant in a related civil proceeding, which was brought on the same grounds as the identical and unopposed motion brought in the Superior Court, allowing the Court to reasonably conclude that this is the proper forum for bringing the petitioners claim, and that the petitioner is not disposed to bringing frivolous or meritless claims. II. ARGUMENTS A. PETITIONER HAS FULLY COMPLIED WITH ALL ADMINISTRATIVE GRIEVANCE PROCESS REQUIREMENTS FOR MEDICAL COMPLAINTS During the period in which Respondent Winslow denied the petitioner specialized medical treatment and care for his subject condition, Petitioner initiated and filed a formal grievance in the manner required by the Santa Clara County Department of Correction, which REPLY PAGE 2 OF 10 EE605073

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differs based on whether the issue is medical or non-medical in nature. For example, per the information booklet provided to inmates by Santa Clara Valley Medical Center Adult Custody Health Services, all complaints in regards to health care are sent to the Nurse Manager. [See Exhibit A.] Specifically, on September 7th, 2010, Petitioner directed his grievance to a correctional officer, as required per the grievance process provided by the Santa Clara County Department of Correction, which was then forwarded to the Nurse Manager, per the aforedescribed booklet. [See Exhibit B.] On October 7th, 2010, the Nurse Manager responded to the grievance by stating that Respondent Winslow arranged for specialized treatment and care for the condition that is the subject of the petition, to which both the Watch Commander and the Division Commander concurred on October 23rd, 2010, and on October 25th, 2010, respectively. [See Exhibit C.] However, even if the petitioners fulfillment of the administrative grievance process requirements was technically deficient in one or more particulars, the Court may still conclude that the aforedescribed acts on the part of the petitioner satisfy the purposes of the administrative grievance process, which is to facilitate an investigation of a dispute and its settlement without court intervention [see Alliance Financial v. City and County of San Francisco (1998) 75 Cal. Rptr. 2d 341, Cal.App.1.Dist.; see also Santee v. Santa Clara County Office of Education (1990) 269 Cal. Rptr. 605, Cal. App.6.Dist.]. PAGE 3 OF 10 EE605073

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In this case, Respondent Winslow was not only notified of the petitioners claim five days after he terminated the doctor-patient relationship with the petitioner [see Exhibit D], but was also notified by the aforementioned grievance over eight months prior to the filing of the amended petition; however, nearly 16 months after said termination of the doctor-patient relationship, the respondent continues to ignore the petitioners claim. Therefore, irrespective of the petitioners strict adherence, Petitioner should be deemed as having substantially complied with the grievance process requirements of both the Santa Clara County Department of Correction and Santa Clara Valley Medical Center Adult Custody Health Services in all respects. B. CASE LAW CLEARLY ESTABLISHES THAT THE CONSTITUTIONAL RIGHTS OF THE PETITIONER WERE VIOLATED Factual basis for violation exists. Petitioner is a pretrial detainee being held by the Santa Clara County Department of Correction, who is being denied specialized treatment and care for his terminal condition, i.e., HIV/AIDS. For over 16 months, Respondent Winslow, the sole provider of such care to HIV-positive inmates, has refused to provide any treatment whatsoever as a punitive measure for having filed a lawsuit against him, in spite of an order by another physician that alternative care be provided in his stead [see Exhibit E]; moreover, Respondent Winslow has even refused to carry out a physician-issued referral to general surgery for the treatment of a broken shoulder [see Exhibit F], which occurred over two-and-a-half years ago, and still causes pain and discomfort [see Exhibit G]. Untreated medical conditions can constitute cruel and unusual PAGE 4 OF 10 EE605073

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punishment. Case law clearly establishes that untreated medical conditions can constitute cruel and unusual punishment. For example, in Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994), the court stated that 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 jail authorities knew about the medical need and refused to remedy it. (Note that in Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), the court established that a medical need is serious if it has been diagnosed by a physician as mandating treatment or ... is so obvious that even a lay person would easily recognize the necessity for a doctors attention.) Petitioners shoulder is obviously broken, and it is equally obvious that he is in need of the same specialized treatment and care to monitor the symptoms and the progression of his terminal illness that is otherwise afforded to every other similarly situated inmate. The court states further in Ramos v. Lamm, supra, that deliberate indifference to a serious medical need 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. Respondent Winslow is, per the above case law, deliberately indifferent to the serious medical needs of the petitioner, in that he knows, or should know, of the substantial risk of harm to the petitioners health by his refusal to provide necessary medical care and his failure to carry out referrals made by other physicians. A denial of medical care for non-medical reasons constitutes an PAGE 5 OF 10 EE605073

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Eighth Amendment violation. Case law also establishes that a denial of medical care for non-medical reasons constitutes an Eighth Amendment violation. In Durmer v. OCarrol, 991 F.2d 64, 69 (3d Cir. 1993), the court held that, if jail staff delay recommended medical treatment or refuse it altogether for non-medical reasons, the Eighth Amendment is violated. Respondent Winslow refuses to provide necessary medical care and refused to direct that alternative care be provided in his stead, in retaliation for having filed a lawsuit against him. In sum, the respondents termination of the petitioners medical care was punitive, and not justified by medical reasons. Respondent Winslows intent is further evidenced by the fact that the respondent knows that the petitioner must rely solely on him to provide specialized treatment and care for HIV/AIDS due to the petitioners confinement, and by the fact that the respondent has refused to follow another physicians order that the petitioner be seen by an outside HIV/AIDS specialist. The aforementioned acts of Respondent Winslow constitute an Eighth Amendment violation. When combined, the aforementioned acts of Respondent Winslow constitute a violation of the Eighth Amendment to the U.S. Constitution, in that a refusal to provide medical care for a life-threatening condition subjects the petitioner to a risk of serious bodily harm and possibly death, and in that a failure to treat an obviously broken bone by refusing to carry out a physicians order that the petitioner be directed to general surgery would constitute the unnecessary and wanton infliction of pain, thereby constituting cruel and unusual punishment forbidden by the Eighth Amendment. [See Whitley v. Albers (1986), 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed. 2d 251.] PAGE 6 OF 10 EE605073

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C. PETITIONERS CLAIM IS PROPERLY BROUGHT IN THIS COURT Petitioner has not brought his claim in any other forum. Although the petitioner initially attempted to supplement the pleading in a related civil case once pending against the respondent with the claim made in his petition [see Exhibit D], the district court advised the petitioner to bring his claim in a separate action because the events giving rise to his claim occurred after the filing of the civil complaint. [See Exhibit H.] Consequently, because time is of the essence with respect to medical claims, the petitioner chose the most expeditious means of resolving his claim, i.e., a Petition for Writ of Habeus Corpus. Therefore, there does not exist, nor has there ever existed, an action in any other court in which the claim made in the petition is also so made. The United States District Court denied the respondents motion to declare the petitioner a vexatious litigant. In a related civil matter once pending against Respondent Winslow, the respondent sought an order to declare the petitioner a vexatious litigant on the same grounds as the identical motion brought in the Superior Court of California (Civil Division); however, on August 23rd, 2010, the United States District Court denied the respondents motion, ruling that, with respect to the numerous suits brought by the petitioner, there is not evidence that [petitioners] suits were patently without merit. ... [T] he record reflects that many of the actions were dismissed for failure to prosecute, not ... because the claims were frivolous or filed with the intention of harassing. The actions are varied enough in both the nature of the claims and in the defendants served to escape the label REPLY PAGE 7 OF 10 EE605073

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of frivolous or harassing. [See Exhibit I.] (The Court should note that the petitioner did not abandon any of the dismissed suits; rather, he filed an aggregate of claims in the United States District Court for the Northern District of California, San Jose Division, under docket number C 08-01354 (PR) JF, in which default judgment has been granted against one defendant, and in which the claims made against the remaining defendants are still pending.) D. PETITION HAS NOT RECEIVED ANY SPECIALIZED TREATMENT AND CARE FOR HIV/AIDS WITHIN THE RELEVANT TIME FRAME From the time of the petitioners grievance, i.e., September 7th, 2010, and until the time of the filing of his petition, i.e., May 23rd, 2011, Respondent Winslow has refused to carry out the referral contained in the petitioners medical records as made by another physician for specialized treatment and care of HIV/AIDS, and has otherwise failed and/or refused to provide to the petitioner the same specialized treatment and care that is provided to every other HIV-positive inmate; and, insodoing, the respondent, who knows that the petitioner relies on him to provide such treatment and care due to his confinement, is subjecting the petitioner to a risk of serious bodily injury and possibly premature death, thereby constituting the infliction of cruel and unusual punishment, in violation of the Eighth Amendment to the U.S. Constitution [see Whitley v. Albers, supra]. Respondent Winslow refused to carry out a physicians order to provide specialized treatment and care for HIV/AIDS to the petitioner. As shown in the answer to interrogatories [see Exhibit E], Respondent Winslow has effectively admitted that he has refused to carry out a physicians order that the petitioner receive specialized treatment and PAGE 8 OF 10 EE605073

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care for HIV/AIDS every three months. Respondent Winslow has prohibited the petitioner from receiving any specialized treatment and care for HIV/AIDS. Per the response to the petitioners grievance [see Exhibit C], the petitioner was scheduled to be seen by a physician specializing in the treatment and care of HIV/AIDS subsequent to the filing of said grievance; however, the petitioner was never seen by such a specialist, and, over 10 months later, still has not been seen by any physician specializing in the treatment and care of HIV/AIDS. Dr. Cazmo J. Lukrich, M.D., does not specialize in the treatment and care of HIV/AIDS and has never specifically treated the petitioner for HIV/AIDS. The Santa Clara County Department of Correction provides specialized treatment and care for HIV/AIDS to HIV-positive inmates by and through the P.A.C.E. Clinic. Respondent Winslow, as an employee of the aforementioned clinic, is the only physician under contract to provide such specialized treatment and care, and, moreover, is the only physician who is specifically qualified to provide specialized treatment and care for HIV/AIDS; however, Dr. Lukrich is an employee of the Santa Clara County Department of Correction and neither provides nor specializes in the treatment and care of HIV/AIDS. Furthermore, as the petitioners medical records show, Dr. Lukrich has never provided such treatment and care to the petitioner. Finally, an alternative to Respondent Winslow exists, namely, Dr. Edward Brooks (P.A.C.E. Clinic), who has been, and can be, substituted as a provider of specialized treatment and care for HIV/AIDS in the event that the respondent is unavailable, as was the case on August 19th, 2010 [see Exhibit E]. PAGE 9 OF 10 EE605073

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III. CONCLUSION For the reasons stated above, the petitioner requests the Court to grant the relief sought in the petition that is the subject of this reply, or, in the alternative, issue an order to show cause to the respondent and grant the petitioners request for the appointment of counsel. Dated: July 25th, 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

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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

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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

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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 D Judge Philip Pennypacker

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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 E Judge Philip Pennypacker

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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 F Judge Philip Pennypacker

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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 G Judge Philip Pennypacker

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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 H Judge Philip Pennypacker

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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 I Judge Philip Pennypacker

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