FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with an action under the Americans with Disabilities Act (ADA) and Rehabilitation Act, 42 U.S.C. § 12132 et seq. and 29 U.S.C. § 794 et seq., respectively.*fn1 He alleges that defendants California Department of Corrections and Rehabilitation (CDCR), Schwarzenegger and Kernan have adopted and enforced a policy of restricting law library access for inmates housed in the Psychiatric Services Unit of California State Prison-Sacramento. Defendants have filed a motion for summary judgment arguing that plaintiff does not qualify as disabled under the ADA, there was no discrimination against him and, even if there was discrimination, it arose from a policy applicable to all inmates in restrictive housing. Plaintiff has opposed the motion and defendants have filed a reply.
I. Summary Judgment Standards Under Rule 56
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 6, 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) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Departmental regulations suggest that each CDCR facility must maintain a law library. 15 Cal. Code Regs. § 3120(a); but see § 3122(b) (providing that inmate may request a limited term transfer when an institution does not have a law library). Moreover, according to regulations, inmates confined in administrative segregation or in any restricted housing unit who are not serving a term of disciplinary detention may have access to legal materials available to the general population; arrangements for the delivery of legal material will be made for inmates whose housing restricts them from going to law library. 15 Cal. Code Regs. § 3164(a), (d); see also Department Operations (DOM) § 101120.10 ("Inmates confined in restricted housing units . . . shall have adequate access to legal resource material").*fn2
Except for a six-week stay at Salinas Valley State Prison, since July 2004 plaintiff has been housed at California State Prison-Sacramento, generally in the Psychiatric Services Unit (PSU). MSJ, Ex. A at 4-10*fn3; Opp'n, Decl. of Carlos Hendon (Hendon Decl.) ¶ 4. California regulations define a PSU as one of several types of segregated program units:
An inmate with a diagnosed psychiatric disorder not requiring inpatient hospital care, whose conduct threatens the safety of the inmate or others, may be housed in a PSU if the inmate is capable of participating in the unit's activities without undue risk to the safety of the inmate or others in the unit.
15 Cal.Code Regs. § 3341.5(b). According to plaintiff, PSU inmates must rely on the institution's legal paging system to obtain legal materials unless they have established legal deadlines. Hendon Decl. ¶ 6; Compl. ¶ 11.*fn4 According to defendants, CSP-Sacramento's law library policy never excluded PSU inmates categorically, but rather gave preference to inmates with court deadlines, which sometimes meant ...