FINDINGS AND RECOMMENDATIONS ORDER AND
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment brought, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on behalf of defendants Weinholdt and Hernandez. (Doc. No. 15.) Plaintiff has filed an opposition to defendants' motion.*fn1 Defendants have not filed a reply.
Plaintiff is proceeding on his original complaint (Doc. No. 1) against defendants Weinholdt and Hernandez. Therein, he alleges as follows. On May 9, 2002, while incarcerated at Pleasant Valley State Prison ("PVSP"), plaintiff was classified as "ADA/EC disabled, DDP Code NCF, DDP Codes: DNM" due in part to his documented history of suffering epileptic seizures. It was noted that plaintiff required a cane and that his housing was restricted to the "lower tier, lower/bottom bunk, no triple bunking and no stairs." On August 29, 2002, while incarcerated at Wasco State Prison, plaintiff was diagnosed as "permanently mobility impaired" in his lower extremities. According to that diagnosis, plaintiff required "crutches or [a] walker." (Compl. (Doc. No. 1) at 3.)*fn2
On May 12, 2008, PVSP's "MAR Committee" approved plaintiff's "Comprehensive Accommodation Chrono," which allowed plaintiff to possess a wooden cane.*fn3
On May 28, 2008, Mule Creek State Prison ("MCSP"), received "hard copy" notification that plaintiff required "lower/bottom bunk, lower tier, no stairs, no triple bunk" housing accommodations. (Id. at 3-4.)
On July 3, 2008, plaintiff was transferred to the MCSP Administrative Segregation Unit. Upon arriving in administrative segregation defendant Sergeant Hernandez informed plaintiff that defendant Hernandez was going to house plaintiff on the upper tier. Plaintiff informed defendant Hernandez that he had an accommodation chrono that required him to be housed on the lower tier and asked defendant Hernandez to house him on the lower tier. Defendant Hernandez ignored plaintiff's accommodation chrono, refused plaintiff's request and had plaintiff escorted to his cell on the upper tier. (Id. at 4.)
On July 7, 2008, while returning from the shower to his cell on the upper tier plaintiff slipped and fell, severely injuring his spine. Plaintiff was transported to the prison's central treatment clinic via motorized medical cart. Plaintiff's pain "was 9 on a scale of 10" and he was treated with Toradol and Robaxin. After plaintiff became drowsy, he was returned to administrative segregation by wheelchair. (Id.) Upon plaintiff's return to administrative segregation, defendant Hernandez ordered him to walk up the stairs to his cell on the upper tier. Plaintiff "begged" defendant Hernandez not to force plaintiff to walk up the stairs but defendant Hernandez ignored plaintiff's pleas. As plaintiff climbed the stairs he "felt his back and spine popping." (Id. at 5.)
From July 7, 2008, to July 17, 2008, plaintiff repeatedly complained to prison staff that he was "ADA disabled" and that "ADA accommodations" required that he be celled on the lower tier, but his complaints were ignored. On July 17, 2008, plaintiff filed an administrative appeal, complaining that he was being housed on the upper tier despite his "seizures and  permanent disability" and requested that he be moved to the lower tier. That same day defendant Hernandez granted plaintiff's appeal and moved him to the lower tier. Defendant Hernandez however did not offer plaintiff any assistance to move his property from the upper tier to the lower tier. While moving his property down the stairs plaintiff "felt his back popping and being further injured." (Id. at 5-6.)
On September 3, 2008, Dr. Christopher Smith ordered that plaintiff be given a wheelchair in response to "MRI findings" and because "pt has worsening neuro." That same day Physician's Assistant M. Mallat submitted a CDC Form 7410 Comprehensive Accommodation Chrono requesting that plaintiff not be assigned jobs requiring standing. On September 31, 2008, defendant Weinholdt denied that request. On February 23, 2009, plaintiff had a "lumbar disectomy lumbar four-five right." Plaintiff remains in constant pain and is confined to a wheelchair. (Id. at 6.)
Plaintiff claims that the defendants have acted with deliberate indifference to his health and have subjected him to the unnecessary and wanton infliction of pain in violation of the Eighth Amendment. Specifically plaintiff alleges that defendant Hernandez disregarded plaintiff's lower-tier accommodation chrono, resulting in severe injury to plaintiff. Plaintiff also alleges that defendant Weinholdt was in a position of authority to implement a policy that would "reduce the risk of . . . officers ignoring" prisoner medical accommodations chronos but failed to take such action. Plaintiff seeks compensatory and punitive damages. (Id. at 8-9.)
On June 15, 2009, the court ordered the United States Marshal to serve plaintiff's complaint on defendants Weinholdt and Hernandez. (Doc. No. 8.) Defendants filed an answer on August 21, 2009 . (Doc. No. 10.) On September 8, 2009, the undersigned issued a discovery order. (Doc. No. 11.)
On March 19, 2010, counsel for defendants filed a motion for summary judgment, arguing that the defendants were entitled to entry of judgment in their favor because: (1) there is no evidence that defendant Hernandez controverted plaintiff's accommodation chrono; (2) defendant Weinholdt did not deny plaintiff's accommodation chrono; (3) plaintiff cannot sue state officials in their individual capacities under the Americans with Disabilities Act; and (4) the defendants are entitled to qualified immunity. (Doc. No. 15.) Plaintiff filed an opposition to defendants' motion for summary judgment on May 14, 2010.*fn4 (Doc. No. 19.) Defendants have elected not to file a reply.
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).
OTHER APPLICABLE LEGAL STANDARDS
I. Civil Rights Act Pursuant to 42 U.S.C. § 1983
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is ...