FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner at California State Prison-Solano (CSP-Solano), proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. This action is proceeding currently against defendants Durfey, Cummins, Good and Singh, all current or former California Department of Corrections and Rehabilitation (CDCR) employees, for alleged violations of the Americans with Disabilities Act (ADA) and plaintiff's Eighth Amendment rights. Defendants' motion for summary judgment is before the court.
I. Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On December 21, 2007, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
In his June 12, 2007 complaint, signed under the penalty of perjury, plaintiff avers defendants violated his rights under the ADA when they disregarded the accommodation granted in 2004 in response to a CDC-1824 (Reasonable Modification or Accommodation Request) allowing him to walk a shorter than normal route to the dining hall. Compl. at 10, Ex. B. Additionally, plaintiff says defendants acted with deliberate indifference to his serious medical needs and caused pain with no penological justification in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Id. at 10.
Plaintiff also represents he was previously issued a CDC-1845 Inmate Disability Verification Form. In this form, dated December 2002, Dr. Obedoza verifies plaintiff has permanent mobility impairment and indicates he can walk one hundred yards and up a flight of stairs, without pause, with the aid of crutches or a cane. Compl., Ex. A. In December 2002, plaintiff was issued a cane to help him walk. Mem. P. & A. in Supp. Mot. Summ. J. (MSJ) at 2:17-21. Once the CDC-1845 was issued, plaintiff avers he had no problem walking the short route to the dining hall from his barracks, as opposed to the long route around the track. Compl. at 5:6-8. The short route is approximately 148 yards, while the long route is approximately 320 yards, as estimated by plaintiff and adopted by defendants. Defs.' Statement of Undisputed Facts No. 15 & Ex. J.
In early May 2004, Officer Fitzpatrick ordered plaintiff to take the long route to the dining hall. Compl. at 5:8-9. In response, plaintiff requested and was granted the accommodation reflected in the CDC-1824 referenced above, based on the medical determination in the CDC-1845. Specifically, plaintiff was given permission to walk the short route, effective May 20, 2004. Id. at 5:10-14 & Ex. B.
The CDC-1824 accommodation was honored until September 2006, when Sergeant Durfey ordered everyone to take the long route from the barracks to the dining hall. Id. at 5:15-18. Plaintiff did not confront Durfey personally, but was told to walk the long route by Commanding Officer Martinez. Id. at 5:19-22. After plaintiff showed Martinez the CDC-1824 accommodation, Martinez said he could walk the short route. Id. at 5:22-24. One day later, Sergeant Good tried to stop plaintiff from ...