The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
(1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; and (2) DENYING AS MOOT JOINT MOTION TO CONTINUE PRE-TRIAL DATES
This matter is before the court on the Motion For Summary Judgment ("Motion") brought by defendants the County of San Diego and the San Diego County Sheriff's Department (collectively "County" or "Defendants") in this action for injunctive relief and damages arising out of conditions of confinement prior to plaintiff's conviction. Plaintiff Robert Michael Rubino ("Rubino"), proceeding through counsel, alleges he suffers from several medical conditions which qualify him as a disabled individual within the meaning of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12102. et seq. ("ADA"), the Rehabilitation Act of 1973 § 504, the California Unruh Civil Rights Act, CAL CIV. CODE §§ 51, 52, 54.1, 54.3, and 55, and other measures enacted to protect the rights of "physically disabled persons." Comp.¶ 9. He also alleges violations of his civil rights under 42 U.S.C. § 1983 on grounds of deliberate indifference to his medical needs and conditions of confinement. The County moves for summary judgment on grounds: Rubino is not disabled under the statutory definitions; he either was not excluded from any benefit or activities at the jails, or any denial of his special requests was based on legitimate concerns about jail safety and security; and he cannot establish conduct that violated any constitutional right predicated on alleged deliberate indifference to his medical needs. Rubino filed an Opposition, and Defendants filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED.
Rubino alleges his constitutional and statutory rights were violated during his three year pre-trial detention following his arrest by the San Diego Sheriff's Department at the age of 62 years in September 2003 on charges of lewd acts on children. He was convicted of those charges in October 2006.*fn1 He was housed in the Vista Detention Facility ("Vista") from September 2003 through April 2004. At the time of his arrest, he was receiving treatment for heart disease, arthritis, circulatory problems, and diabetes. He alleges he did not receive adequate health care for those problems while in custody. He further alleges after he was moved to the George Bailey Detention Facility ("George Bailey"), special needs items (extra blankets, socks, and mattresses, and chairs or stools) were not provided to him, and his medication regimen was occasionally disrupted. He also alleges he is disabled, and neither the San Diego County jails nor George Bailey are equipped for disabled individuals, in violation of the ADA and the Rehabilitation Act, nor is their transportation equipped to accommodate disabled individuals. He alleges these deficiencies denied him full and equal access to the Defendants' programs, activities, or services and violated his constitutional rights.
By Stipulation and Order entered August 30, 2005, Rubino struck references to 42 U.S.C. § 12181 as a basis for liability in his First claim for relief under the ADA. His First claim survives insofar as it was based on 42 U.S.C. § 12131, et seq. Dkt No. 23. The parties further agreed Rubino's Fourth cause of action based on various sections of the California Civil Code should be dismissed, as well as his Fifth cause of action based negligence, and those claims have been dismissed. The remaining causes of action are: First Claim for Violation Of The ADA, 42 U.S.C. § 12131, et seq; Second Claim for Violation Of Rehabilitation Act, 29 U.S.C. § 794 (§ 504 of the Act); Third Claim for cruel and unusual punishment and deliberate indifference to serious medical needs under the Eighth and Fourteenth Amendments (pursuant to 42 U.S.C. § 1983); Sixth Claim for Declaratory Relief to require Defendants to correct the living conditions deficiencies and provide handicap transportation; and Seventh Claim for injunctive relief "to redress his injuries."*fn2 (Compl. ¶ 81).
The County Sheriff's Department documents Rubino's housing while in detention for the period from his arrest in September 2003 into December 2006, at which time he was awaiting sentencing. Rubino's own testimony tracks the record.
The JIMS database shows that Mr. Rubino was booked into the Vista Detention Facility on September 4, 2003, and placed in "protective custody" due to the nature of the charges filed against him. Mr. Rubino was housed in protective custody at Vista Detention Facility until May 12, 2004.
On May 12, 2004, Mr. Rubino was transferred to the San Diego Central Jail in medical housing and remained there for one day. He was transferred back to Vista Detention Facility on May 13, 2004 and on May 14, 2004, Mr. Rubino was transferred to the George Bailey Detention Facility and housed in protective custody. Mr. Rubino has remained in protective custody in San Diego detention facilities from that time forward. . . .
Chapman Decl. ¶¶ 6, 7 (Def's Lodg. Exh. B).
The dispositive issues here are whether Rubino qualifies under the ADA and Rehabilitation Act definitions as a "disabled" person entitling him to pursue his allegations of discrimination based on disability, whether jail personnel were deliberately indifferent to his medical needs and, if so, whether the County can be held liable for alleged deliberate indifference to his health care and living conditions. The only evidence submitted by the parties related to the substantive merits of Rubino's claims are portions of Rubino's November 15, 2006 deposition at Vista while he awaited sentencing.*fn3
A. Summary Judgment Legal Standards
Summary judgment is properly entered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, demonstrate there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. ("Rule") 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party shows an absence of evidence to support the non-moving party's claims, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256(1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1305-1306 (9th Cir. 1982).
To successfully rebut a properly supported summary judgment motion, the nonmoving party "must point to some facts in the record that demonstrate a genuine issue of material fact and, with all reasonable inference made in the plaintiff's favor, could convince a reasonable jury to find for the plaintiff." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000), citing Rule 56, Celotex, 477 U.S. at 323, and Anderson, 477 U.S. at 249. The nonmoving party must establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "If reasonable minds could differ," the judgment should not be entered in favor of the moving party. Anderson, 477 U.S. at 250-251. However, summary judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. In deciding a summary judgment motion, the court does not make credibility determinations or weigh conflicting evidence, as those are determinations for the trier of fact and inappropriate for summary adjudication proceedings. Anderson, 477 U.S. at 249.
B. ADA And Rehabilitation Act
1. Establishing Disability
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." § 12132 (2000 ed.). A " 'qualified individual with a disability' " is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." § 12131(2). The Act defines " 'public entity' " to include "any State or local government" and "any department, agency . . . or other instrumentality of a State." § 12131(1). We have previously held that this term includes state prisons. See Pennsylvania Dept. of Corrections v. Yesky, 524 U.S. 206, 210  (1998).
Section 504 of the Rehabilitation Act, like Title II of the ADA, provides that no handicapped person shall be denied benefits or be discriminated against "solely by reason of his or her disability . . . under any program or activity receiving Federal financial assistance. . . ." 29 U.S.C. § 794(a). A plaintiff is a "qualified individual" with standing to sue under those Acts if the plaintiff establishes he or she is "disabled" as the Acts define that term and shows a prima facie case of discrimination based on the disability. See Wong v. Regents of University of California, 192 F.3d 807, 816 (9th Cir. 1999).
"The ADA defines an individual with a disability as someone who has 'a physical or mental impairment that substantially limits one or more of the major life activities of such individual.' 42 U.S.C. § 12102(2)(A)." Broussard v. University of California, 192 F.3d 1252, 1256 (9th Cir. 1999) (emphasis added). The complainant must have an actual disability as defined in the statute, that is: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (emphasis added); see Sutton v. United Air Lines, Inc., 527 U.S. 471, 478-79 (1999) (a disability discrimination case where two sibling applicants were severely myopic and were denied employment on that basis, holding the eyesight was correctable so did not qualify as a "disability" within the ADA definition).*fn4 "[T]he ADA's coverage is restricted to only those whose impairments are not mitigated by corrective measures." Sutton, 527 U.S. at 487. Accordingly, "disability under the Act is to be determined with reference to corrective measures," and petitioners do not state a claim they are substantially limited in any major life activity when corrective measures mitigate the impairment. Id. at 488-89.
The definition of disability also requires that disabilities be evaluated 'with respect to an individual' and be determined based on whether an impairment substantially limits the 'major life activities of such individual.' § 12102(2). Thus, whether a person has a disability under the ADA is an individualized inquiry. See Bragdon v. Abbott, 524 U.S. 624, 641-642  (1998) (declining to consider whether HIV infection is a per se disability under the ADA); 29 CFR pt. 1630, App.§ 1630.2(j) ('The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual).
Sutton, 527 U.S. at 483 (emphasis added) (emphasis added).
The parties dispute whether Rubino qualifies as "disabled" under the ADA/Rehabilitation Act standards. As discussed below, the only "major life activity" implicated by Rubino's evidence appears to be impairment of his ability to walk long distances, climb, or stand for long periods. He alleges the "denial of access" component of his discrimination claim as: (1) his inability to go out into the outside yard for failure to provide him anywhere to sit other than on the concrete or the ground (Opp. 7:10-12); and (2) failure to transport him "in a vehicle that had handicapped capabilities," so that he was "forced to pull himself up or be yanked up by deputies to get into the bus" (Opp. 7:17-19). He contends those alleged violations of the ADA and the Rehabilitation Act "amounted to punishment." Opp. 8:11-12.
2. Rubino's Disability Evidence
Defendants contend there are no disputes at this point in the litigation over the facts of Rubino's medical condition, and he is unable to raise a triable issue of fact whether he qualifies as "disabled" under the ADA definition. They emphasize they do not attack his credibility regarding his difficulty in walking and climbing stairs. Rather, "even assuming Plaintiff's condition is exactly how he states (difficulty walking long distances, pain when standing up or lowering down, and great difficulty climbing stairs), he is not 'disabled' under the ADA." Reply 1:24-2:1. They argue Rubino does not qualify as disabled because his mobility, although limited, is not "substantially" limited. Reply 2:1-7.
Sutton, 527 U.S. at 482-83 (emphasis added).
Rubino states he is certified "disabled" because the DMV issued him a disabled parking placard he used for some time before his arrest. However, he proffers no authority and no evidence beyond his testimony he received one, no specificity for what condition, and no support for his tacit and dubious inference the DMV's definition of "disabled" and criteria for a finding of parking placard entitlement are necessarily co-extensive with those of the federal statutes.*fn5
"Even though factual allegations in a motion for summary judgment must be viewed in the light most favorable to the non-moving party, summary judgment is mandated if the non-moving party 'fails to make a showing sufficient to establish the existence of an element essential to that party's case.'"*fn6 Broussard, 192 F.3d at 1258, quoting Celotex, 477 U.S. at 322. The County carried its burden as moving party under summary judgment standards. Rubino's obligation, to avoid summary judgment, is to cite particular items of evidence he contends create triable issues of fact. He relies solely on his deposition transcript in support of his Opposition. His showing is cursory and selective.
Although the court is under no obligation to "scour the record in search of a genuine issue of triable fact" (Kennan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996) , nor need it "examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could be conveniently found" (Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001), the court has extracted from Rubino's deposition transcript excerpts the following physical conditions Rubino identified. and accepts his representations as true, despite the absence of any medical record, for purposes of deciding the motion:*fn7
1. His "knees are basically shot from arthritis."*fn8 He also states in passing he has arthritis in his hip and shoulder. After he has been sitting or lying down for a while, when he first gets up, his "knees are very stiff, and the first steps I have are painful and very difficult untilI can get, I guess, some circulation." Depo. 15:25-16:1, 31:7, 36:17-21 (emphasis added).
2. He is diabetic, first diagnosed about six months to a year before his arrest. He takes medication to keep it under control, but does not need to take insulin. He checks his blood sugar twice a day, and had changed his diet. While in jail, particularly after his hunger strike, "the diabetes --some forms of it have dissipated." The doctor told him a few weeks before his deposition (i.e., while he was incarcerated) that his diabetes was getting worse, even though the blood sugar has been fairly stable. Depo. 20:25, 23:3-24, 24:8-25:6, 25:24-26:8 (emphasis added).
3. He had begun to develop a new problem "recently," due either to "the cold cell or circulatory," causing him to have very cold feet two or three times a week when he wakes up, with difficulty getting them warm. The doctor told him it is probably related to his diabetes, but could be a combination of causes. Depo. 25:7-20 (emphasis added).
4. He had corrective arthroscopic surgeries on both knees in May 2003 (i.e., a few months before his arrest). The surgeries were for a torn ligament in one, and a torn meniscus in the other, and they smoothed out the arthritis in both knees. He had been diagnosed with arthritis a year or two before his detention. Even so, his 235 pounds dropping from a bunk to the floor "really incapacitated my knees. Depo. 21:1-2, 26:16-27:18 (emphasis added).
5. In 1991 or 1992, he had triple bypass surgery and a heart attack, with loss of heart function, although when he took the drug metoprolol prescribed by his cardiologist, his "heart rate was then and for years normal. . . ." His heart surgery went well, with the only issue thereafter an increased heart rate, which he stabilized with medication. His doctor told him he would not be able to do as many ...