The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is 1) defendants' motion for summary judgment, filed on 9/26/07, to which plaintiff filed his opposition on 10/26/07, after which defendants filed their reply on 11/21/07; and 2) plaintiff's cross-motion for summary judgment, filed on 12/07/07, to which defendants filed their opposition, on 2/01/08 (following the granting of an extension of time), to which plaintiff filed a reply on 2/25/08.
The court has previously set forth plaintiff's lengthy allegations and restates them herein with any appropriate modification/editing. Findings and Recommendations, filed on January, 8, 2007, pp. 1-5, adopted by Order, filed on March 15, 2007; see also, Order, filed on 3/24/08. Plaintiff is proceeding against ten defendants*fn1 in an amended complaint (AC), filed on 9/16/05.*fn2 The defendants are the California Department of Corrections and Rehabilitation (CDCR); California Medical Facility-Vacaville (CMF);*fn3 J. Bick; T. Donahue; R. Andreason; N. Khoury; J. Thomas; S. Murray; S. Moreno; T. Schwartz.
Plaintiff contends that he was issued one CDC 128-C medical chrono for cell housing with window tint on October 16, 2000, settling a grievance filing by plaintiff. Thereafter, the cell housing and window tint matters were divided into separate chronos; medical chronos, pursuant to CMF policy are valid for one year and thus must be renewed annually. Plaintiff filed two separate grievances when the medical chronos were not renewed. AC, p. 7.*fn4
On May 16, 2001, after plaintiff had been moved to a cell where he was allowed to use window tint, staff ordered that he uncover his cell windows contrary to his medical chrono. AC, p. 8. On January 30, 2004, following dismissal of a prior action on the same matter for failure to exhaust administrative remedies, Case No. Civ-S-01-1211 WBS DAD P, plaintiff filed a grievance with respect to cell housing reviewed by defendant CMF Senior Medical Technical Assistant (MTA) T. Donahue, and denied by defendant CMF-V Chief Medical Officer (CMO) J. Bick. At the second level, plaintiff's grievance was reviewed by defendant R. Andreason, also, apparently, CMO at CMF, according to plaintiff, and denied by defendant N. Khoury, Chief Deputy of Clinical Services. AC, p. 9. At the third level, N. Grannis did not \\\\\ review the appeal "due to a time constraint pretense."*fn5 Id.
After the grievance processes within CDCR and the Board of Control were complete, defendant Correctional Sergeant S. Murray moved plaintiff to a dormitory bed on December 17, 2004, placing plaintiff in view of large exterior windows and exposing him to large fluorescent lights from 5:00 p.m. to 11:30 p.m. This exposure caused plaintiff to suffer several migraine headaches until he was moved to a different dorm bed on January 27, 2005. AC, p. 10.
Plaintiff's new location, where he remained at the time of the filing of his amended complaint, placed him directly before the middle of a large exterior window, causing him numerous migraine headaches. AC, pp. 10-11.
Plaintiff's neurologist, Dr. Capozzoli, not a defendant, had prescribed Zolmitriptan, apparently for plaintiff's migraines, but the prescription had lapsed because plaintiff did not need it while plaintiff had been housed in a cell with tinted windows. When plaintiff tried to obtain Zolmitriptan, after the prescription had been renewed as of December 16, 2004, it was not made available to him until February 1, 2005. AC, p. 11.
On January 27, 2005, the day plaintiff moved to the second dorm location, P-139-L, defendant S. Moreno, CMF Unit 1 Facility Captain, ordered the Unit 1 staff to keep the dorm lights on from 8:00 a.m. until 10:00 p.m., for institutional safety and security purposes. This completely deprived plaintiff of the ability to avoid all brightly lit areas. Id. When plaintiff attempted to address his medical problem informally, defendant Bick apparently failed to review plaintiff's medical file because in his written response, he stated wrongly that the issue did not implicate the ADA. Plaintiff's Type I ("brittle") diabetes and visual light inability or impairment are conditions limiting plaintiff's major life activities covered by the ADA. AC, pp. 11-12. His visual light impairment has been recognized as an ADA disability in his records since April 5, 2000. AC, p. 12.
Plaintiff states that a copy of a May 25, 2005, CDC-128-C medical chrono (Exhibit (Exh.) 31 to AC, p. 126) was brought to defendant Thomas, who thereafter refused to move plaintiff to a cell, thus showing deliberate indifference to plaintiff's serious medical condition. Id. The text of the copy of the chrono plaintiff attaches,*fn6 containing signatures by both Dr. Capozzoli and defendant CMO Bick, states:
I would recommend that Mr. Stringham be provided with cell housing (single cell housing not required). Mr. Stringham has diabetes with severe neuropathy involving also autonomic neuropathy affecting his bowel and bladder control. Additionally, he has diabetic retinopathy and vascular headaches with photophobia. Mr. Stringham has a chrono which permits him to wear dark glasses and cover his cell windows with tinting material for the above diagnoses. He is also wheelchair dependent as a result of his neuropathy. For all of the above reasons, I recommend that he be allowed to live in a cell rather than a dorm environment, which is less conducive to accommodating his above-mentioned medical needs. This chrono is valid for one year (through May 15, 2006), subject to annual renewal and to custody and institutional safety requirements.
AC, pp. 12-13, 126. (It appears in the copy of the exhibit showing both signatures of Dr. Capozzoli and defendant Dr. Bick that defendant CMO Bick has also underlined and initialed the last five words of the chrono referencing safety requirements).
When plaintiff informed Dr. Capozzoli that the chrono did not get him moved to a cell on July 13, 2005, Dr. Capozzoli noted in plaintiff's medical file that he told plaintiff he should appeal the decision "since it was a medical recommendation based on his diagnosis & that it was a strong recommendation that I would support if asked to by the committee." AC, p. 13 & Exh. 32 at p. 127.
Plaintiff points to various exhibits demonstrating his need for cell housing because he is unable to safely navigate a dorm environment due to, inter alia, "severe sensorimotor polyneuropathy" or numbness in his feet, and "right Charcot joint" or "Charcot foot." AC, p. 13, Exhs. 1 - 6, 17-19, 26-29, at pp. 96-101, 112-114, 121-124.
Plaintiff claims that dorm housing has not allowed for safe passage of his wheelchair between lockers and bunk beds and that his lack of immediate toilet access in a dorm, which he has to share with up to eleven other inmates, has caused him episodes of pain and suffering. AC, p. 14.
Plaintiff cannot safely operate his wheelchair in the dorm, requiring that he walk some 25 feet to the restroom, numerous times during the day and night, without handrails, causing him to lose his balance and ...