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Ashker v. California Dep't of Corrections

September 29, 2005

TODD LEWIS ASHKER, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION

In this civil rights action, Plaintiff Todd Ashker, a prisoner incarcerated at Pelican State Bay Prison (PSBP), alleged several claims against Defendants. In previous orders the Court resolved all claims with one exception: that Defendants' failure to accommodate Plaintiff's wrist and hand impairment by appointing him a writing assistant for his legal writing violated his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. and § 504 of the Rehabilitation Act of 1973, as amended and codified in 29 U.S.C. § 794(a). Regarding this claim, the Court denied Defendants' motion for summary adjudication on the following issues: (1) whether Plaintiff is disabled within the meaning of the ADA and the Rehabilitation Act; (2) whether Defendants failed reasonably to accommodate Plaintiff's disability between July 31, 1998 and March 11, 1999; (3) whether Defendants failed reasonably to accommodate Plaintiff's disability from March 21, 2000 forward; and (4) whether Defendants acted with discriminatory intent between July 31, 1998 and March 11, 1999. September 27, 2002 Order Granting in Part and Denying in Part Motion for Summary Judgment at 47-48. As a result, claims for two forms of relief remain for adjudication: (1) monetary damages for injuries alleged as a result of claimed delay in providing an accommodation between July 31, 1998 and March 11, 1999 and (2) prospective injunctive and declaratory relief based on alleged violations. The Court granted Defendants leave to conduct further discovery on the issue on whether Plaintiff's impairments qualify as a disability under the ADA and the Rehabilitation Act and to file a second motion for summary adjudication, if appropriate.

Id. at 28.

Defendants have filed a second motion for summary adjudication that Plaintiff is not disabled within the meaning of the ADA and the Rehabilitation Act. (Docket # 84). Defendants also move to dismiss all claims against California Department of Corrections (CDC) director Edward S. Alameida, Jr. on the ground that Plaintiff presents no evidence that Alameida or former CDC director Cal Terhune discriminated against Plaintiff because of his disability. This latter motion is DENIED. The Court ruled in the September 27, 2002 Order that Warden Joe McGrath and CDC Director Edward S. Alameida, Jr. in their official capacities were proper defendants and did not grant Defendants leave to move for reconsideration of that ruling. See id. at 23-25. Defendants also request, under Federal Rule of Civil Procedure 25(d)(1), to substitute current PBSP Warden Richard Kirkland, current PBSP Associate Warden for Health Care Barry O'Neill and current CDC Director Jeanne Woodford in place of former PBSP Warden McGrath, former Associate Warden Scribner and former CDC Director Alameida. Plaintiff does not oppose this request. Therefore, this request is granted and the current PBSP and CDC officials are substituted as defendants in their official capacities.

Plaintiff opposes Defendants' motion for summary adjudication that he is not disabled within the meaning of the ADA and Rehabilitation Act. Plaintiff's motion for extension of time to file his opposition (Docket # 96) is GRANTED and his opposition has been considered. Plaintiff argues that the Court should allow him to proceed with his claim that Defendants failed reasonably to accommodate his disability between 1997 and July 30, 1998 and that he is entitled to a writing assistant for all writing, not just legal writing. See Pl.'s Opp. at 10-17; 30-31. The Court ruled on these issues in the September 27, 2002 Order and did not grant Plaintiff leave to move for reconsideration of them. Therefore, the Court will not address these arguments in this order. Plaintiff files a separate document titled, "Request for An Order Directing Defendants To Respond to Allegations of Fraud and Perjury" claiming that certain declarations submitted by Defendants are fraudulent and/or perjured. (Docket # 105). This request is DENIED as moot; as discussed below, even when considering all of Defendants' evidence, their motion for summary adjudication fails.

Having considered all the papers filed by the parties, the Court DENIES Defendants' motion for summary adjudication on the issue of whether Plaintiff's impairment qualifies as a disability within the meaning of the ADA and the Rehabilitation Act.

BACKGROUND

In the September 27, 2002 Order, the Court set out in detail the facts relating to Plaintiff's disability discrimination claim through June 12, 2001. These facts are incorporated herein.

I. Subsequent Events

The following is additional evidence submitted by Plaintiff From November, 1995 through December 2, 2002, Plaintiff was double-celled with inmate Frank Clement. Mr. Clement helped Plaintiff with many of the activities of daily living that are a hardship for Plaintiff to perform. On December 3, 2002, administrative staff ordered that Plaintiff and Mr. Clement be single-celled for "security reasons." Plaintiff appealed this decision through each level of the administrative process, but his appeal was denied. On July 9, 2003, Plaintiff and Danny Troxell submitted a double-celling request. On July 15, 2003, this request was denied by the gang unit lieutenant. On July 16, 2003, Plaintiff sent to Warden McGrath, Associate Warden of Security Housing Unit (SHU) B.J. O'Neill, and Health Care Manager Winslow a memorandum asking to be allowed to double-cell with Mr. Troxell so that he could have some assistance with daily activities. On July 25, 2003, this request was granted. Approximately one year later, on June 8, 2004, PBSP-SHU administrators Castellaw and Cox ordered that Plaintiff and Mr. Troxell be single-celled, for "safety security" reasons. Plaintiff appealed this decision through each level of the administrative process; all appeals were denied. On September 1, 2004, Plaintiff submitted a "reasonable accommodation request." On October 19, 2004, this request was partially granted in regard to Plaintiff's request for a writing assistant. On December 10, 2004, Mr. Troxell was approved as Plaintiff's writing assistant.*fn1

II. Defendants' Evidence Regarding Plaintiff's Physical Limitations

A. Evidence Submitted with Motion

With their motion, Defendants submit the declarations of Patrick Dodgen, a physical therapist employed by Crescent City Physical Therapy and by the CDC to provide physical therapy to the inmates at PBSP, and M. Jones, a correctional officer at PBSP.*fn2

1. Declaration of Patrick Dodgen

Mr. Dodgen states the following. He earned his master of science in physical therapy from the University of Southern California in 1986 and he has been a physical therapist for eighteen years. Plaintiff has been Mr. Dodgen's patient since approximately July, 2002. Due to a gunshot wound, Plaintiff has lost about fifty percent of the mobility in his right wrist; he is right hand dominant and uses that hand for handwriting. Plaintiff has physical therapy sessions about twice a week. During these sessions, Plaintiff soaks his right arm and hand in a whirlpool and Mr. Dodgen supervises Plaintiff's wrist, arm and hand gripping exercises. One measure of Plaintiff's limitations is his grip strength. As of October 14, 2004, Plaintiff's grip strength with his right hand was forty-five pounds which is forty percent of the average grip strength for a right-handed male of Plaintiff's age.

Plaintiff's grip strength does not substantially limit his handwriting ability because handwriting per se does not require great grip or wrist strength. Plaintiff's condition may limit his handwriting endurance, but this limitation is not significant and is overcome by pacing his handwriting. Plaintiff's grip strength indicates that he can write forty percent of each hour. Mr. Dodgen advises that handwriting is good exercise for Plaintiff's wrist and hand and that Plaintiff uses an arm brace to assist him in writing.

Furthermore, Mr. Dodgen states that Plaintiff's diminished right-hand grip strength does not prevent him from cleaning his cell. In the event cleaning with his right hand causes pain or discomfort, Plaintiff can use his stronger left hand to clean or he can rest his right hand by taking breaks from cleaning.

2. Declaration of M. Jones

Mr. Jones, a correctional officer in the PBSP SHU, declares that Plaintiff has been single-celled in the SHU since June 8, 2004. Plaintiff has been cleaning his cell all of this time and his cell is in a neat, clean and sanitary condition. Cell-cleaning in the SHU consists of a custody officer providing a damp cloth with detergent on it to an ...


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