FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently under consideration is defendant Thomas' motion for summary judgment.*fn1 In the October 13, 2005, first amended complaint, plaintiff claims that defendant Thomas was deliberately indifferent to plaintiff's serious medical needs. He alleges that on July 16, 2004, defendant Thomas forced plaintiff to sleep in an upper bunk even though Thomas knew that plaintiff had medical orders to be assigned to a lower bunk because of a vision impairment.*fn2 As a result of this denial, plaintiff fell on July 20, 2004, while climbing down from an upper bunk. Thomas contends that there is no genuine issue about whether he was deliberately indifferent. For the reasons explained below, the motion must be denied.
Plaintiff was admitted into California's prison system in January 1999. At the time of the events giving rise to this action, plaintiff was housed at the Ironwood State Prison ("ISP") or at California Medical Facility ("CMF"). Thomas was a housing sergeant at CMF. First Am. Compl. (Am. Compl."), ¶¶ 18-19, 39-40. He was responsible for supervising prisoner housing assignments in the unit where plaintiff was housed at the time of the events giving rise to this action. Def.'s Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof, Exh. A, Thomas Decl., ¶ 2.
The CDCR has basic guidelines for a correctional officer's access to prisoners' medical files. Pursuant to CDCR policy, guards are not permitted to review documents in a prisoner's medical record. Def.'s Mot. for Summ. J., Stmt. of Undisp. Facts in Supp. Thereof ("SUF"), SUF 13. Thus, in order to convey medical needs that affect housing decisions, medical personnel prepare a written document, known as a "medical chrono," that informs guards of the problem and what the prisoner's needs are. Id. The medical chrono must be signed by the prisoner's treating physician and it must be approved by the chief medical officer. Id. Copies are distributed in order to ensure that the medical need appropriately is communicated. Thus, the prisoner gets a copy, as do the prisoner's correctional counselor and the facility captain. Id. Furthermore, a copy is placed in the prisoner's central file. Id.
Here, plaintiff's medical history involves a condition known as "bilateral keratoconus," which causes the cornea to take on the shape of a cone, resulting in distorted vision. SUF 1. In 1996, he underwent a corneal transplant in his right eye for this condition. SUF 2. Within a few weeks of arriving in the California prison system in 1999, he was found to be legally blind*fn3 in his right eye, but to have 20/20 vision in the left. SUF 3. By October 10 1999, he had developed advanced keratoconus in the left eye and the right eye corneal transplant had failed. SUF 4; Defs.' April 30, 2007 Mot. for Summ. J., Exh. B, Attach. 1, at 1, 2. The Chief Medical Officer ("CMO") at Ironwood State Prison, therefore wrote in a document entitled, "CMO to CMO Agreement (CMF)," stating that plaintiff had a visual disability that impacted his housing. Id., Attach. 1, at 3. The CMO of ISP medically cleared plaintiff for transfer from ISP to CMF, noting that plaintiff "need[ed] a low bunk." Id. This note also stated that the "[m]edical chart must accompany the inmate." Id. Plaintiff was transferred from ISP to CMF on or around October 27, 1999. Id., Attach. 1, at 4.
In July 2001, plaintiff was housed in an upper-tier cell. Id., at 10-11. On July 17, 2001, based upon an ophthalmologist's recommendation, the CMO at CMF gave written permission for plaintiff to wear dark glasses inside and outside. Id., at 8, 10-11. This authorization was to last for one year. Id. On February 22, 2002, a physician at CMF found plaintiff had a permanent visual impairment that did not impact his housing placement. Id., at 13. There is no evidence that plaintiff's condition improvedbetween October 1999 and February 2002. On June 25, 2002, the CMO renewed plaintiff's authorization for dark glasses, to be effective for one year. Id., at 12.
Thomas relies heavily on the declaration of Dr. Crossan, a physician who reviewed plaintiff's medical records. He asserts that in June of 2002, plaintiff underwent a second corneal transplant in his right eye. SUF 5. By September of 2002, plaintiff had 20/30 vision in his right eye and by March of 2003, the graft had healed. SUF 6. Thus, plaintiff was not deemed legally blind. SUF 6. In July 2003, plaintiff sustained blunt trauma to his right eye. SUF 7. As a result, he again was found to be legally blind. Id. Because of this injury, plaintiff underwent "open globe repair" surgery, after which he could perceive light but no image. SUF 8. In papers generated in his discharge from the hospital following surgery in July 2003, an ophthalmologist stated that plaintiff was nearly blind in the right eye and had substantial visual disability in the left. Id. Thus, the doctor recommended that plaintiff be allowed to have a vest identifying him as visually impaired, sunglasses, and eye shield, and a lower bunk. Id. However, no written authorization was given for plaintiff to have these things. Id. As of April 13, 2004, plaintiff was assigned to a lower bunk, but not based upon any written recommendation or authorization. Defs.' April 30, 2007 Mot. for Summ. J., Exh. B, Attach. 1, at 30.
Following a prison riot in 2004, plaintiff was placed into administrative segregation. He was released on July 16, 2004, and taken to a cell where he was assigned to use the upper bunk. SUF 10. Plaintiff was to share the cell with a fellow prisoner, Johnson, who was assigned to the lower bunk. Id. An officer on duty (who is not a defendant), Officer Guerrero made notations in a log reflecting activity on the wing where plaintiff was housed on July 16, 2007. These notations show that plaintiff stated he could not share a cell with Johnson, but offered to share a cell with a different prisoner, Rodgers, who was assigned to the lower bunk in a different cell. SUF 11, 14. Guerrero made a notation that the housing sergeant said not to move Munir and that Johnson would have a cellmate until he found someone else compatible in order to work a trade in housing arrangements. SUF 12. Munir said he would rather return to administrative segregation than share a cell with Johnson. SUF 15.
Plaintiff's version of events contrasts with Guerrero's notes. He asserts that he told Officer Guerrero, who is not a defendant, that he had a written doctor's order to be assigned to a lower bunk because of his visual impairment. Am. Compl., ¶ 17. Guerrero ordered plaintiff to "lock up" in the cell while he went to discuss the matter with defendant Thomas. When Guerrero returned, he informed plaintiff that there was no lower-bunk orders in his file. Id., at ¶ 20. Guerrero asked to see plaintiff's copy of the order, but plaintiff could not produce it because his property had been confiscated while he was in administrative segregation, and it had not been returned. Id., at ¶ 21-22. Plaintiff insisted that his medical file contained written authorization to be assigned to a lower bunk. Id., at ¶ 17. Plaintiff alleges that he found the medical chrono when his property was returned on July 19. Id., at ¶ 34. He attempted to inform "anyone who would listen to him," but unnamed prison officials refused to listen. Id. Significantly, plaintiff does not submit a copy of this order in support of his contentions.
Defendant Thomas, however, has submitted a declaration stating that he does not recall discussing this matter with Guerrero. SUF 12, 16. He asserts that his practice when a prisoner claimed medical authorization for a lower bunk but could not produce a copy of it was either to check himself or to have another officer check the prisoner's central file or facility captain's records to verify the claim. SUF 12. So many prisoners were housed at CMF that few lower bunks were available. Id. Housing staff had to ensure that prisoners had written medical authorization before assigning them to a lower bunk. Id. Thomas asserts that he did not become involved in housing decisions revolving around the question of whether prisoners were compatible. Def.'s Mot. for Summ. J., Exh. A, at ¶ 7. A Unit Sergeant was responsible for those decisions. Id.
On July 20, 2004, plaintiff fell while climbing down from the upper bunk of his cell. SUF 17. Plaintiff was taken to the medical clinic, where he reported severe pain in his lower back. Am. Compl., ¶¶ 39-40. Plaintiff explained that he was legally blind in his left eye and had no vision in his right eye. Id. The physician noted that plaintiff's lower back was tender, but found no obvious bruises or swelling. Id. The doctor ordered medication for muscle spasms and wrote a note stating, "Please house pt. in lower bunk" because of "visual impairment." Defs.' April 30, 2007 Mot. for Summ. J., Exh. B, Attach. 1, at 38. At around 5:00 p.m., plaintiff returned to his cell. Id., Attach. 1, at 35. On July 28, 2004, an ophthalmologist and the CMO of CMF issued a written order that plaintiff should wear a vest that identified him as visually impaired, wear lightly tinted glasses, and be assigned to a lower bunk. Pl.'s Opp'n, Exh. B.
They noted that if no lower bunk was available at CMF, plaintiff should be transferred to "any facility which can meet his medical needs." Id.
II. Summary Judgment Standards
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 ...