The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge
REPORT AND RECOMMENDATION
Pending before this Court are Plaintiff's Motion for Summary Judgment (Docket No. 40) and Defendants Mendoza-Powers, Hill, Castro and Davis' Motion for Summary Judgment (Docket No. 49). Having reviewed the Motions, Responses and relevant portions of the record, the Court concludes that oral argument is unnecessary to resolve the Motions. Accordingly, the Court enters the following Report and Recommendation.
Plaintiff Elonza Jesse Tyler ("Plaintiff") was a prisoner at Avenal State Prison ("ASP") when the events at issue occurred. Plaintiff alleges that Defendants, including Chief Medical Officer at ASP R. Davis, ASP Warden K. Mendoza-Powers, Associate Warden at ASP B.J. Hill, ASP correctional counselors E. Rocha*fn1 and Stiles, as well as the State of California and the California Department of Corrections, have acted with deliberate indifference to his medical needs in violation of the Eighth Amendment, retaliated against him for exercising his right to redress the state courts, and infringed upon his rights under the Americans with Disabilities Act (ADA).
In September 2003, while incarcerated at Folsom State Prison, Plaintiff injured his left knee while working in the kitchen. This knee injury is not at issue in this lawsuit, but is relevant to the medical transport issue that arose later. In March 2004, Plaintiff was transferred to Avenal State Prison. While at ASP, Plaintiff filed a petition for writ of habeas corpus in Kings County Superior Court and thereafter, in the Court of Appeals in the Fifth Appellate District regarding ASP prison officials' alleged failure to provide Plaintiff with orthopedic treatment. On February 10, 2005, the Appellate Court issued an order directing ASP to inform the court of the date Plaintiff was scheduled to have arthroscopic surgery as recommended by Dr. Smith.
On March 15, 2005, orthopedic specialist Dr. David G. Smith performed arthroscopic surgery on Plaintiff's left knee. Plaintiff received post-surgical treatment from Dr. Smith. On April 27, 2005, Plaintiff filed inmate appeal ASP-05-0907 claiming he was receiving poor post-surgical care and requesting immediate transfer to a medical facility. Plaintiff's appeal was granted at the first level by Dr. Smith. In May 2005, Dr. Smith examined Plaintiff and prescribed physical therapy. Since ASP did not have a physical therapy program, it was recommended Plaintiff be transferred to another institution. Plaintiff apparently underwent physical therapy at Corcoran State Prison Hospital in May 2005 but remained in custody at ASP. On August 25, 2006, Plaintiff's inmate appeal ASP 05-0907 was denied by Defendant Davis, Chief Medical Officer, because a physical therapy program had become available at ASP. It was also denied at the director's level.
In June 2005, Reed Jackman was hired to work as a physical therapist at ASP. He treated Plaintiff from June 17, 2005 to July 8, 2005. Jackman found Plaintiff to be unreceptive to his suggestions on how to properly rehabilitate his knee. Plaintiff expressed disappointment that he was not receiving the same level of care that a professional athlete would receive. After only a few visits, Plaintiff requested that his physical therapy treatment be discontinued.*fn2
Plaintiff filed inmate appeal ASP-M-05-01654 on August 22, 2005 claiming he was not receiving proper physical therapy and seeking an appointment with an orthopedic physician. This appeal was partially granted by Defendant Davis on September 13, 2005 and it was ordered that Plaintiff be referred to an orthopedic specialist. This appeal was also partially granted at the director's level. Plaintiff was referred to an orthopedist to have his progress further evaluated.
On August 29, 2005, Plaintiff received an endorsement to be transferred to California Medical Facility ("CMF") from J. Short. The next day, Plaintiff filed inmate appeal ASP-05-02097 requesting a "van with a wheelchair lift" to transport him to CMF. This appeal was partially granted by Defendant Castro. Defendant Castro ordered that Plaintiff be transported via regular van, noting that he was an intermittent wheelchair user who had agreed he was able to ride in a regular van and had done so on previous occasions. On October 17, 2005, Plaintiff was to be transported from ASP to CMF. A bus arrived to transport Plaintiff but he was unable to climb the steps into the bus and consequently, was unable to be transported to CMF. On November 9, 2005, Plaintiff's inmate appeal ASP-M-05-02097 was also granted in part by Defendant Mendoza-Powers. The decision directed Plaintiff to be transported expeditiously to CMF once CMF notified ASP of bed availability.
On or about December 13, 2005, Plaintiff was transferred from ASP to CMF via van. Once he arrived at CMF, Plaintiff was seen promptly by a nurse practitioner and within ten days, was examined by Dr. Mehta who prescribed physical rehabilitation and scheduled a follow-up examination. Plaintiff was also referred to an orthopedic specialist, prescribed medication and shortly thereafter, began physical therapy. Plaintiff has sued the medical staff of CMF, including Dr. Mehta, alleging deliberate indifference to his medical condition in the case Tyler v. Andreasen, 2:06-cv-01883-MCE (E.D. Cal. 2006).
II. PROCEDURAL BACKGROUND
On January 27, 2006, Plaintiff filed this present action against J. Woodford, E. Castro, B.J. Hill, Stiles, and K. Mendoza seeking general damages "for defendants' deliberate indifference to the serious medical needs of Plaintiff and intentional discrimination in violation of the Americans with Disability and Rehabilitation Act . . ." The Court dismissed the Complaint, with leave to amend, on November 20, 2006 finding that Plaintiff could not bring a claim for ADA relief against the defendants, all of whom were individuals and also found that he had not alleged that he was "denied" a benefit. In regard to his Eighth Amendment claim, the Court found that Plaintiff's alleged claims were not cognizable because there was no indication that defendants had any control over the timing of Plaintiff's transfer.
Plaintiff filed an Amended Complaint on December 15, 2006, against the Department of Corrections, the State of California, Chief Medical Officer at ASP R. Davis, ASP Warden K. Mendoza-Powers, Associate Warden at ASP B.J Hill, ASP correctional counselors E. Castro and Stiles and Doe Defendants. In his Amended Complaint, Plaintiff states that the Defendants willfully and knowingly disregarded an excessive risk to his health and safety by intentionally retaliating against plaintiff for exercising his right to redress the state courts with grievances and for using the appeal system to file complaints against them. He also states the Defendants intentionally retaliated against him in violation of Title II of the Americans with Disabilities and Rehabilitation Act and "motion will be made on the violation of Plaintiff's civil rights, of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution, infringement of Plaintiff's ADA rights and violation of the Civil Rights of Institutionalized Persons Act, in that prisoner has a right to be free of cruel and unusual punishment, without due process." The crux of Plaintiff's Amended Complaint is that he was denied the reasonable ADA accommodation of a van transport to CMF which ultimately delayed his transfer to CMF and caused delay in receiving medical treatment.
On November 21, 2007, the Court directed the United States Marshal to serve process on the following defendants: Davis, Mendoza-Powers, Hill, Castro, and Stiles. Defendants Davis, Mendoza-Powers, Hill, and Castro appeared. On September 23, 2008, Defendant Stiles was dismissed from the action because he had not been served. Plaintiff filed a motion for summary judgment on September 29, 2008. On October 24, 2008, Plaintiff filed his Second Amended Complaint. The Second Amended Complaint is a reproduction of the Amended Complaint with certain portions omitted.*fn3 Defendants Castro, Hill, Davis and Mendoza-Powers filed a cross-motion for summary judgment on November 4, 2008. These motions are now ripe for review.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).Material facts are those which may affect the outcome of the case. See id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party, id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988). In addition, the Court must be "guided by the substantive evidentiary standards that apply to the case." Liberty Lobby, 477 U.S. at 255.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the ...