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Ashker v. California Dep't of Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


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 inmate on a weekly basis. The inmates also have access to soap and water to do daily cleaning.

Mr. Jones declares that he has observed Plaintiff cleaning his quarters with no apparent difficulty.

B. Evidence Submitted with Reply

With their reply, Defendants submit the declarations of D. Langlois, a correctional officer at PBSP, and of Michael Jorgenson, counsel for Defendants.

1. Declaration of D. Langlois

D. Langlois, a control booth officer in the section of the SHU where Plaintiff is housed, declares that he has observed Plaintiff using a theraband device for exercising his right arm. The theraband is resistive elastic tubing which must be issued to Plaintiff and returned after he uses it. On at least one occasion, Mr. Langlois asked Plaintiff to untie tight knots or tangles in the elastic tubing and Plaintiff used both hands including his fingers and wrists, to untie knots that Mr. Langlois could not untie without difficulty.

Mr. Langlois also declares that on November 1, 2004, he observed Plaintiff pick up his repaired television set off the floor with both hands and arms and carry it to his cell with no difficulty or apparent pain.

2. Declaration of Michael Jorgenson

Mr. Jorgenson's declaration authenticates a Board of Prison Terms (BPT) document titled Notice and Request for Reasonable Accommodation that was signed by Plaintiff on March 12, 2003. This document appears to allow inmates to declare that they need help to get ready for a BPT hearing on account of a disability. The form states, "If you have a disability, you have the right to ask for help to get ready for your BPT hearing, get to the hearing, talk, read forms and papers, and understand the hearing process." On the form, Plaintiff has checked a box that indicates he does not have a disability.

III. Plaintiff's Evidence of His Impairments

Plaintiff states that he has been dealing with his arm condition for over fourteen years and knows the difference between an exercise that has a positive effect on his arm and one that causes pain and inflammation. Plaintiff states that he gets positive benefits from his arm exercises using the theraband tubing, ball and hand grip-strengthener. He states that writing causes him pain and discomfort. He states that this is documented in his medical file since 1994 by every doctor and specialist who has examined him.

Furthermore, Plaintiff testifies that the only purpose his arm brace serves is to protect his forearm bones and that, when he writes, he has to keep the arm brace loose so that it does not restrict his wrist or fingers. Plaintiff states that when he writes with the arm brace tightened, he has to move his whole arm to form each letter and this causes him more pain.

In addition to his declaration, Plaintiff submits other evidence to support his claim that writing causes him a great deal of pain and discomfort. He submits three reports of medical examinations by Dr. Corey Weinstein, the most recent dated January 29, 2005. Ashker Dec., Ex. A. Dr. Weinstein writes:

Todd Ashker (TA) continues to suffer daily pain and significant disability of the right upper extremity particularly the right forearm and hand. He uses his left upper extremity for everything he can, and for the strength aspect of maneuvers which require both arms using the right for balancing things, rather than for power. The left is used for brushing teeth, eating, wiping after stool, etc.

If he exerts his right hand or arm in any significant way, he develops distressing pain. Writing causes pain, and his ability to write is greatly slowed. With writing he experiences pain of the anterior tendons of the distal right arm and pain at the ulnar side of the wrist that extends into the fifth finger. If he continues to write the pain extends to the medial elbow and along the ulnar forearm musculature. . . .

The pain causes insomnia with difficulty initiating sleep and interruption of sleep due to pain and difficulty returning to sleep. Often he wakes at 4 am and cannot return to sleep at all. . . . When the pain is more severe he can't rest the ulnar side to the wrist on a desk while writing and the intensified pain can last for weeks. . . .

The disabling arm condition makes cleaning his clothes and cell very difficult. He can wash his clothes OK by using only his left hand to agitate and squeeze. The trouble is with wringing out the washed clothes. The force required of the right hand/arm in that activity causes pain of the posterior mid right arm and the radial side and pain at the ulnar elbow and wrist.

He can only scrub the floor and walls of his cell and wring out the towel repeatedly once a month due to pain of the right arm afterward with pain most severe into the right forth [sic] and fifth fingers and up into the medial upper arm. . . . [Mr. Dodgen's] evaluation of TA's ability to write based on grip strength is superficial and incomplete. No finger strength or dexterity was done, and no writing test was observed.

Id., January 28, 2005 Weinstein Report at 1, 2, and 4.

Plaintiff also submits the September 1, 2004 progress notes of SHU clinic physicians, Dr. Enriques and Dr. Hechanova. Ashker Dec., Ex. H. Although these notes are barely legible, the words "cell inmate to help," as a recommended treatment, can be read on the September 1, 2004 doctor's note. Plaintiff declares that Dr. Enriques told him that he was re-injuring his arm by doing his daily activities. Plaintiff declares that he saw Dr. Hechanova on October 8, 2004, but that Defendants have not provided him with a copy of Dr. Hechanova's report of that examination. Plaintiff declares that Dr. Hechanova stated that he was recommending that Plaintiff be given assistance with his daily activities. Plaintiff declares that, after his October 8 medical examination, Correctional Counselor Nimrod told him that Dr. Hechanova had recommended that Plaintiff be assisted with his daily activities. Counselor Nimrod told Plaintiff that he would not get assistance with his daily activities, but that he would provide Plaintiff with a writing assistant at the law library. See Ashker Dec., Ex. C at 3, Nimrod's October 19, 2004 Response to Plaintiff's Accommodation Request ("Ashker was examined by PBSP medical staff. The exam provided substantiation that Ashker has an injury to his right arm that limits his range of motion and most likely causes discomfort and pain. The request for accommodation can be provided in the area of writing assistance."); Ex. C at 8-9, November 23, 2004 Warden's Level Decision Partially Granting Plaintiff's ADA Reasonable Accommodation Request.

Plaintiff also submits his contemporaneous notes from August, 2004 through January, 2005, in which he documents that he experiences increased pain during and after writing, doing laundry and cleaning his cell. Ashker Dec., Ex. D., Plaintiff's notes, e.g., entries dated October 31, November 1, 2, 3, 6, 7, 11, 24, 29.

Regarding Mr. Jones' declaration, Plaintiff declares that Mr. Jones does not work in Plaintiff's SHU block and that Plaintiff cannot recall a single time when Mr. Jones or any staff observed him cleaning his cell. Plaintiff states that the only time he has ever seen Mr. Jones come into his pod area was on June 8, 2004, when Mr. Jones was getting Plaintiff's property from Mr. Troxell after they were ordered to be single-celled, and on November 27, 2004 when Plaintiff questioned Mr. Jones about his declaration. Plaintiff submits the declarations of a number of inmates who corroborate his testimony regarding Mr. Jones. See Declarations of Danny Troxell, Henry Carlos, L. Taylor, Gabriel Toruno, and Louie Ledesma.

LEGAL STANDARD

I. Summary Judgment

Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id.

The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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. If the evidence in opposition to the motion is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50. However, "self-serving affidavits are cognizable to establish a genuine issue of material fact so long as they state facts based on personal knowledge and are not too conclusory." Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001).

Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). If the non-moving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323.

At summary judgment, the judge must view the evidence in the light most favorable to the non-moving party: if direct evidence produced by the moving party conflicts with direct evidence produced by the non-moving party, the judge must assume the truth of the evidence set forth by the non-moving party with respect to that fact. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). A court may not disregard direct evidence on the ground that no reasonable jury would believe it. Id.

II. Disability Discrimination

The elements of a cause of action under Title II of the ADA are (1) that the plaintiff is disabled; (2) that he is otherwise qualified; and (3) that the defendants' actions either (a) excluded his participation in or denied him the benefits of a service, program, or activity; or (b) otherwise subjected him to discrimination on the basis of his physical handicap. 42 U.S.C. § 12132. A cause of action under the Rehabilitation Act essentially parallels an ADA cause of action. Olmstead v. Zimring, 527 U.S. 581, 590 (1999); Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996).

A qualifying "disability" is "(A) a physical or mental impairment that substantially limits one or more of the major life activities of the person; (B) having a record of such an impairment; or (C) being regarded as having such an impairment." Id. at § 12102(2). A "major" life activity is one that is "of central importance to daily life." Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, 197 (2002). A limitation on a major life activity is "substantial" if it interferes to a large degree with a major life activity. Id.

The ability to perform a manual task is a major life activity only if the task in question is central to daily life. Id. The ability to perform several manual tasks may qualify as a major life activity if, taken together, the tasks are central to daily life (even if each discrete task is not central to daily life). Id. "[T]o be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long-term." Id. at 198. The existence of a disability must be analyzed on a case-by-case basis; those claiming a disability must offer evidence that the extent of the limitation in terms of their own experience is substantial. Id. Furthermore, the plaintiff must demonstrate that he or she is substantially limited in performing major life activities while he or she is using measures to mitigate the impairment. Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999). The inability to use one's arms and hands to produce by computer or handwriting written communications and records may be a disability under the ADA; however, the inability to engage in continuous keyboarding or writing does not meet the substantially limiting requirement of the ADA . Thornton v. McClatchy Newspapers, Inc. (Thornton II), 292 F. 3d 1045, 1046 (9th Cir. 2002).

DISCUSSION

Defendants argue that Plaintiff is not disabled under the ADA and the Rehabilitation Act because he is not substantially impaired and because his disability does not qualify as permanent or long term.

I. Substantially Impaired

Referring to Mr. Dodgen's declaration and to a 2001 declaration from Dr. D. W. Winslow, Defendants argue that Plaintiff is not substantially impaired because he is able to write at a pace that will both exercise his hand and wrist and minimize his pain. Defendants argue that, not only is Plaintiff capable of writing, he is provided an arm brace as an aid in writing and he has an attorney working for him to perform his legal work. Referring to Mr. Jones' declaration, Defendants point out that Plaintiff is able to clean his own cell. Citing Williams, 534 U.S. at 198 for the proposition that Plaintiff's claim must be analyzed within the context of his own experience, Defendants argue that Plaintiff, as an inmate, is in the unique position of having a significant amount of time at his disposal so that he is able to write at a slower pace to correspond with the Court and his attorney. Defendants conclude that because Plaintiff's condition does not preclude him from writing or from engaging in other activities like cleaning his cell, Plaintiff is not substantially limited in the context of his own experience and thus he is not disabled. Defendants also claim, without citing evidence, that Plaintiff can make phone calls to his attorney to communicate about his cases.

Dr. Weinstein's declaration, detailed above, raises material issues of disputed fact regarding whether Plaintiff is substantially impaired in accomplishing a number of major life activities. Dr. Weinstein states that Plaintiff cannot write, clean his cell or wash his clothes because these activities cause him to exert his right hand or arm which results in pain. Dr. Weinstein's declaration is corroborated by other evidence Plaintiff has submitted which details how he is substantially limited in performing major life activities. See Ashker Dec., Ex. D, Ashker Dec., Ex. H. Also, Plaintiff has presented evidence that his arm brace does not assist him when he is writing or engaging in other activities of daily living and thus it does not mitigate his impairment.

In addition, Plaintiff submits evidence to dispute Defendants' argument that he can make phone calls to his attorney and evidence regarding the importance of cleaning his cell and laundering his clothes. See Ashker Dec., Ex. K, November 30, 2001 Letter from PBSP Litigation Coordinator to Stephen Gargaro, Plaintiff's attorney, declining Gargaro's request for a telephonic conference with Plaintiff; id. at ¶ 56 (not washing his laundry causes his skin to break out and not cleaning his cell causes it to smell); id. at ¶ 56 and Ex. I at 8, Flyer titled "Patient Information on Methicillin Resistant Staphylococcus Aureus (MRSA)" posted by PBSP staff notifying inmates that to prevent spread of MRSA they should keep their cells, living area, shower and personal items clean using a disinfectant and thoroughly hand wash clothing. In addition, Plaintiff states that he passes up opportunities to exercise in the prison yard because he then would have to wash his clothes, which is a painful process for him. Id. at ¶ 84.

The evidence submitted with Defendants' reply, to which Plaintiff has not had an opportunity to respond, does little to support their argument that Plaintiff is not disabled. Mr. Langlois' observations that Plaintiff untied a knot in elastic tubing using his fingers and wrists and picked up and carried a television set does not resolve the disputed issue of material fact regarding the extent to which Plaintiff's impairment affects his ability to engage in major life activities. The fact that Plaintiff checked a box on a BPT document indicating that he does not have a disability adds nothing to Defendants' case. Plaintiff may have checked that box because he did not need assistance for a BPT hearing.

In its September 27, 2002 Order, the Court concluded that this case is distinguishable from Williams and Thornton v. McClatchy Newspapers, Inc. (Thornton I), 261 F.3d 789 (9th Cir. 2001). See September 27, 2002 Order at 27-28. Defendants' additional evidence does not change this result. In Williams, even though the plaintiff had repetitive stress disorder, she could tend to her personal hygiene and carry out personal and household chores such as brushing her teeth, tending her flower garden and doing laundry. 534 U.S. at 693-94. Here, it is disputed whether Plaintiff can do his laundry or accomplish household chores such as cleaning his cell. In Thornton I, the plaintiff with carpal tunnel syndrome was found not substantially restricted in performing manual tasks because she could go grocery shopping, drive, make her bed, wash her clothes and dress herself. 261 F.3d at 797. Again, it is disputed whether Plaintiff is unable to wash his clothes or clean his cell as well as unable to write. Finally, in Thornton II, the court held that being restricted from continuous keyboarding and handwriting did not qualify as a disability under the ADA. 29l2 F.3d at 1046. Here, the degree of restriction on Plaintiff's ability to write is disputed. Furthermore, it is disputed whether Plaintiff can undertake other activities of daily living such as cleaning his cell or washing his clothes.

Because Plaintiff has succeeded in raising a disputed issue of material fact regarding whether he is substantially impaired, Defendants' motion for summary adjudication on this ground is DENIED.

II. Permanent or Long-Term Impairment

The only evidence Defendants submit to support their contention that Plaintiff's impairment is not permanent or long-term is a portion of Plaintiff's declaration submitted in support of his motion to enforce a settlement agreement in a previous case, Ashker v. California Dep't of Corrections, et al., no. C 97-1109 CW (Docket # 257). In the portion of the declaration cited by Defendants, Plaintiff stated:

That the medication defendants have provided me since the Settlement Agreement became effective has helped eleviate [sic] a lot of the pain I associate with the muscle areas; and partially with the nerve type pains. Especially when I'm getting the regular physical therapy . . . and otherwise resting it. At these times the arm feels great, and I don't even notice the injury.

Plaintiff responds that this quote supports his claim that he is substantially impaired because it documents that he only gets relief from pain when he is resting his arm as well as taking medication and getting regular physical therapy. Furthermore, Plaintiff indicates that this quote is taken out of context and submits the entire declaration in which he also states that, whenever he writes, his pain begins almost immediately, the pain gets progressively worse the more he writes and the pain lasts from a few hours to several days. Pl.'s Dec., Ex. L. Plaintiff cites his declaration in this case in which he states that he still must rest his arm several days in a row in order get relief from pain, id. at ¶¶ 55, 57, Exs. A and D, and cites medical reports that document that his impairment is permanent. Id., Ex. A, Dr. Weinstein Report (Plaintiff is "substantially and permanently impaired"); November 21, 2001 Declaration of D. W. Winslow, docket # 44 at ¶ 6 (Plaintiff's injuries are permanent, he is not expected to experience any significant improvement, he will have less than full use of his right hand and he will experience ongoing discomfort).

Plaintiff's evidence raises a disputed issue of material fact regarding whether his impairment is permanent or long-term. Therefore, Defendants' motion for summary adjudication on this ground is DENIED.

CONCLUSION

Because the Court has ruled against Defendants on both of their arguments regarding Plaintiff's impairments, their motion for summary adjudication that Plaintiff is not disabled within the meaning of the ADA and the Rehabilitation Act is DENIED. (Docket # 84). Plaintiff's motion for extension of time to file opposition is GRANTED (Docket # 96). Plaintiff's motion regarding Defendant's fraud and perjury is DENIED (Docket # 105). Defendants' request to substitute Current PBSP Warden Richard Kirkland, current PBSP Associate Warden for Health Care Barry O'Neill and current CDC Director Jean Woodford in place of former PBSP Warden McGrath, former Associate Warden Scribner and former CDC Director Alameida is GRANTED. The clerk shall change the caption of this case accordingly.

IT IS SO ORDERED.


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