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Richard Ernest Anaya v. Roseanne Campbell

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 22, 2011

RICHARD ERNEST ANAYA, PLAINTIFF
v.
ROSEANNE CAMPBELL, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

I. Introduction and Summary

Plaintiff is a prison inmate proceeding with appointed counsel with a civil rights action. Plaintiff proceeds with claims under the Eighth Amendment regarding deliberate indifference to serious medical needs, the Americans with Disabilities Act (ADA), and state law medical malpractice that span several years at Mule Creek State Prison (MCSP). This action is before the undersigned pursuant to both parties consent. Docs. 212, 214.

As the procedural history, infra, indicates, the case has been an adjudication nightmare. It starts out with a complaint with too many defendants, too many or amorphous claims, seriatim requests for injunctive relief and numerous amendments and motions. It is only one of hundreds of pending prisoner cases which the undersigned maintains at any one time (amongst the myriad of other case related duties both criminal and civil assigned to magistrate judges). As is often the case, numerous requests for counsel are made during the course of the case, but it is almost always not possible to determine whether to expend one of the scarce counsel resources maintained in the district on account of the murkiness of the allegations and the less than apparent possibility of success.*fn1

This motion for summary judgment is especially difficult to adjudicate in light of the lengthy period of time under review, the copious amount of medical examination/procedures supplied to plaintiff, the waxing and waning of his conditions, and finally, the amorphous or conclusory description of those precise events, or non-events, which plaintiff believes constituted deliberate indifference and/or a violation of the ADA. The undersigned will not reach out to adjudicate claims not precisely made by plaintiff's counsel, and will not reach claims determined to be abandoned at some time in this litigation.

II. Procedural History

This action proceeds against defendants Akintola, Nale, Smith, Subia, Williams and Campbell. Defendants Huerta-Garcia and Johnson were dismissed by the parties on February 25, 2011, as was the retaliation claim against Smith. Doc. 291. This case has a rather extensive procedural history which is set forth below.

This action commenced on January 5, 2007, naming 13 defendants for various federal and state law claims. A request for writ of mandate was filed no more than 14 days after the complaint's filing. Motions for immediate injunctive relief were made before the complaint could be screened in the normal process. Suffice it to say that with respect to ADA allegations, some of the preliminary relief motions had facial merit, and during the course of a year, most of the necessary relief was worked out or problems were mooted.

On August 23, 2007, defendants first appeared in this action by filing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On December 5, 2007, the court recommended that defendants' motion be denied as to the Eighth Amendment medical claims against Smith. The court ordered the motion granted with leave to amend as to the claims against the other defendants. On May 29, 2008, plaintiff filed the operative amended complaint naming some of the original defendants and as well as several new defendants. Docs. 86, 88. On June 26, 2008, the court ordered the original defendants to answer the amended complaint and ordered service of the new defendants. On August 26, 2008, the original defendants filed an answer to the amended complaint. On November 4, 2008, several of the newly named defendants also filed an answer to the amended complaint.

On November 10, 2008, the court issued a scheduling order setting the dispositive motion cut-off date for June 19, 2009. On January 22, 2009, the remaining newly named defendants filed an answer to the amended complaint.

On February 27, 2009, defendants filed a motion to modify the scheduling order. Defendants requested that the court extend the discovery cut-off and dispositive motion filing dates because new defense counsel had been assigned. On March 13, 2009, the court granted this motion, and re-set the dispositive motion cut-off date to August 19, 2009.

On August 17, 2009, defendants filed a 25 page motion for judgment on the pleadings. The grounds of the motion were that plaintiff failed to exhaust his administrative remedies as to all defendants but for Smith and Williams and that several of the claims were not colorable.*fn2

On August 14, 2009, defendants also requested that the court vacate the current deadline for dispositive motions pending resolution of the motion for judgment on the pleadings, and re-set the deadline if necessary following resolution of that motion so that defendants may file a summary judgment motion. The court declined at that time to give defendants another bite at the summary judgment apple.

On November 9, 2009, the court issued findings and recommendations on the judgment on the pleadings. Several of the defendants were dismissed, however defendants motion to dismiss for failing to exhaust administrative remedies was denied. Doc. 207.*fn3

Other motions for summary judgment were made by certain defendants. The court will not detail here all of the motions which led to the final roster of defendants as set forth in the pretrial order. However, as a result of all motions, and a dismissal of several defendants by plaintiff himself, the defendants remaining are those set forth in the Pretrial Order and as set forth the section to follow. Suffice it to say that the court was compelled to spend an inordinate amount of time determining what defendants should stay and go in this litigation.

Trial commenced in this case for only one day on Monday, October 25, 2010. It became quite apparent that plaintiff was unable to competently present his case. Despite plaintiff's efforts, he was simply not articulate enough to function coherently in the courtroom. As a result the court declared a mistrial. In weighing various options the court indicated to plaintiff that the court would attempt to find plaintiff counsel, but noted that the court did not have the authority to force an attorney to represent plaintiff. The court also expressed its view that since the determination to mistry the case would benefit plaintiff, defendants would be provided an opportunity to file a motion for summary judgment.

On January 4, 2011, counsel was appointed for plaintiff to oppose defendants' anticipated motion for summary judgment that was filed on February 25, 2011. On March 8, 2011, the parties filed a briefing and hearing schedule and all briefings were to be filed by May 5, 2011, and the hearing on the summary judgment motion was to occur on May 19, 2011. On May 2, 2011, a few days before the summary judgment opposition was to be filed, plaintiff's counsel filed a request to reopen discovery for six months and to continue the summary judgment hearing at a date after the close of discovery. The court denied this request on May 4, 2011, noting that the request was far too broad but provided plaintiff ten days to describe in detail what discovery was needed and how long it would take to obtain it. Plaintiff's counsel filed a response on May 13, 2011, and then on May 19, 2011, filed a motion to withdraw as attorney.

New counsel was appointed for plaintiff and the opposition to summary judgment was finally filed on July 25, 2011. Defendants filed a reply on August 12, 2011.

No requests by plaintiff's counsel to incur reimbursable expert witness appointments pursuant to Eastern District General Order 230 were made.

III. Threshold Issues A. The Claims Remaining

As indicated above, much water has gone over the litigation dam in this case, although the parties in some respects fail to recognize such. Especially important is plaintiff's failure to understand that the Pretrial Order issued on July 7, 2010, (Doc. 236) governs and delimits the factual issues that may be raised in this case, except to the extent that plaintiff has further abandoned any issues set forth in that Order.

In that Order, which recognizes the overarching legal claims of Eighth Amendment deliberate indifference, state law medical malpractice and the ADA, the court found specific factual issues to be adjudicated:

1. Plaintiff has alleged that he suffers from the conditions of rectal prolapse and knee injury/ailments; these conditions, and only these conditions, are pertinent to this case.

Pretrial Order at 3 (emphasis added). *fn4

This ruling was made in light of the difficulty to ascertain the precise factual issues as stated in the operative complaint(s), plaintiff's tendency to attempt to muse about ailments during the various motions or other pleadings in this case that were not in his operative complaint, and upon which notice or exhaustion had transpired. The ruling was also made especially in light of plaintiff's pretrial statement. The pretrial statement, including the important specification of issues to be litigated, is not a meaningless document upon which the parties may later expand in their unfettered discretion. Thus, addition by plaintiff here of a back injury or other ailment, as serious medical conditions ripe for adjudication, is simply barred by the court's previous order.*fn5

Further, as set forth in footnote 3 of the Pretrial Order, with respect to the ADA claims, the only claims which the court could discern from the pretrial statement, and thus the only claims to be adjudicated herein, were that "plaintiff was unable to participate in work and educational programs because plaintiff was not provided with grab bars, crutches, canes and a special toilet seat." Thus, the attempt to expand (once again) the factual issues in this case, e.g., not permitting cell feeding at unspecified times, or not providing in-cell education, and start from scratch as if none of what has transpired in the past four years matters, is not an attempt the court will recognize as valid.

On February 25, 2011, plaintiff abandoned the retaliation claim posited against defendant Smith. Thus, the court will adjudicate the three legal claims set forth above as described by the remaining factual issues within those claims

B. Defendants Appropriate to the Remaining Claims.

In the Pretrial Order, the court found that only defendants Subia, Smith, Williams, Akintola, Nale Huerta-Garcia, Johnson and Campbell were appropriate defendants. The undersigned has re-reviewed this case and defendant Campbell continues as a defendant only as a defendant in her official capacity, and along with her replacement, defendant Subia, the only appropriate defendants for an ADA Title II claim.*fn6 Plaintiff has attempted to add Eighth Amendment claims against these defendants, in their roles denying inmate grievances for medical care, which are not part of this action and which will not be addressed.

IV. Motion for Summary Judgment

Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to 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, 106 S. Ct. 2548, 2553 (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, 106 S. Ct. at 2552. "[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, 106 S. Ct. at 2553.

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, 106 S. Ct. 1348, 1356 (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, 106 S. Ct. at 1356 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, 106 S. Ct. 2505, 2510 (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, 106 S. Ct. at 1356 (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, 106 S. Ct. at 1356. 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, 106 S. Ct. at 1356 (citation omitted).

Undisputed Facts

The following of defendants' undisputed facts (DUF) are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:

During the relevant period of October 2003 to November 2007, plaintiff received 67 primary care physician visits, 43 with medical doctors and the remaining 24 with physicians assistants or nurse practitioners. DUF #216. From 2003 to 2007, plaintiff received three surgeries by independent outside medical facilities, one to repair his rectal prolapse*fn7 and two ACL reconstructions for his knee. DUF #217. From 2003 to 2007, plaintiff received numerous gastroenterolology consultations with UC Davis physicians concerning his rectal prolapse and numerous orthopedic consultations with outside orthopedists. DUF #218. From 2003 to 2007, plaintiff received five x-rays of his knee over a two-year period and two MRIs of his knee over a four-year period. DUF #219.

Medical Care for Knee

It is undisputed that plaintiff had knee injuries and was treated prior to the relevant period of this case, therefore the court will only include the treatment from the relevant period. On February 10, 2003, plaintiff re-injured his knee and was provided treatment that included a wrap, crutches and a medical lay in. DUF #171. While shooting a basketball plaintiff re-injured his knee on March 24, 2003, and received treatment, an ace bandage wrap, Motrin and a medical lay in. DUF #172. On May 17, 2003, plaintiff re-injured his knee while running to class. DUF #173. On May 29, 2003, plaintiff told doctors for the first time that he wanted knee surgery. DUF #174. On that day plaintiff was diagnosed with a chronic right knee injury that was not symptomatic and plaintiff was given a chrono for a low bunk, a modified work restriction for one year and an orthopedic consultation was submitted. DUF #176

On October 11, 2004, plaintiff re-injured his knee when he fell down some steps. DUF #179. On October 20, 2004, plaintiff saw a different orthopedist, who diagnosed a right ACL tear and medial meniscus tear and planned on performing an ACL reconstruction. DUF #181. On May 27, 2005, plaintiff received the ACL reconstruction. DUF #182. Following surgery, plaintiff was discharged back to MCSP with crutches and weight bearing as tolerated for six weeks. DUF #183.

Plaintiff later reported feeling a pop in his knee with pain. DUF #184. During follow up treatment it was assessed that plaintiff possibly re-injured his knee. DUF #185. More treatment followed including extended use of crutches, an MRI, orthopedic consultations and a second ACL surgery on September 26, 2007. DUF #186. Following the second surgery plaintiff was provided with a knee brace, wheelchair, physical therapy, bottom bunk in a ground floor cell assignment and crutches. DUF #187.

Medical Care for Rectal Prolapse

Plaintiff's rectal prolapse first came to the attention of MCSP staff on October 28, 2003. DUF #125. Plaintiff reported that he had been suffering from the problem for the prior two years and that it had increased to the point of mucosa prolapsing with every bowel movement and had become difficult to manage. DUF #126. Surgical intervention through an outside provider was requested on an urgent basis and approved two days later on October 30, 2003. DUF #127. Plaintiff was evaluated by UC Davis Medical Center on November 5, 2003. DUF #128. Plaintiff had a prolapse during a bowel movement on December 24, 2003, and was unable to manually reinsert the mucosa as he had been able to in the past. DUF #129. Plaintiff was taken to UC Davis where emergency rectal prolapse surgery was performed on December 26, 2003, by non defendant Dr. Vidovsky. DUF #130. Plaintiff was discharged from UC Davis on January 3, 2004, apparently with complete recovery. DUF #131.

Following the surgery plaintiff continued to have prolapses as well as complaints of fecal incontinence. DUF #132. Dr. Vidovsky determined that the incontinence was a pre-existing problem from before the surgery but related to the rectal prolapse. DUF #133. Three months after the surgery, Dr. Vidovsky determined that further improvement was unlikely and a diverting colostomy was an option. DUF #134. Plaintiff refused the diverting colostomy. DUF #135.

On October 8, 2004, plaintiff was brought to the infirmary with a 1/2 " prolapse and was treated by defendant Dr. Smith. DUF #136. An exam did not reveal any active bleeding and was the expected normal color of the rectal lining. DUF #138. Dr. Smith did not provide plaintiff with in cell feedings, because he did not believe it was medically necessary. DUF #142. Plaintiff and Dr. Smith disagreed about the proper course of action to further deal with the rectal prolapse condition. By March 20, 2006, Dr. Vidovsk determined that plaintiff's rectal prolapse condition appeared to be permanent and plaintiff would not benefit from further surgery. DUF #146.

Disability Accommodations

On November 5, 2007, an evaluation was conducted to determine plaintiff's disability status. DUF #191. It was concluded that plaintiff had a permanent condition that would benefit from the assistance of a commode chair by allowing plaintiff to support himself with his upper extremities while using the toilet. DUF #192; Decl of Dr. Smith Exh. G. It was recommended that a commode chair be placed in plaintiff's cell and he provided with adult diapers when out of his cell. Id. It was specifically found that plaintiff's disability was not confirmed upon examination. DUF #193. It was also concluded that plaintiff had a temporary condition that required the use of crutches. DUF #194; Decl of Dr. Smith Exh. G. Plaintiff was provided with a commode chair. DUF #207. Plaintiff had a cane for most of his period at MCSP. DUF #210. During the period of October 2003 to November 2007, plaintiff was provided with dozens of medical chronos for medical lay ins, in cell feeds, single cell housing, low bunk, low floor housing, special consideration for work and education assignments and special access to bathrooms during work and classes. DUF #221.

Defendants

Defendant Campbell was warden of MCSP from September 2004 to December 2006. DUF #51. Defendant Subia was warden of MCSP after Campbell. DUF #77.

Defendant Dr. Williams was Chief Medical Officer at MCSP from 2001 until 2008. DUF #79. Dr. Williams role is generally administrative in nature and he generally does not treat inmates. DUF #80, 81. Part of Dr. Williams job is to review inmates grievances regarding medical care. DUF # 78, 82. Dr. Williams reviewed plaintiff's 2003 inmate grievance MCSP-03-01668, concerning plaintiff's renewal of a walking cane and shaving chrono. DUF #86. Dr. Williams noted that plaintiff was to soon be seen for an outside orthopedic evaluation. DUF #87. Dr. Williams provided plaintiff with a cane chrono until his outside orthopedic evaluation. DUF #89.

Dr. Williams also reviewed plaintiff's 2007 inmate grievance MCSP-A-07-01754, concerning plaintiff's request for knee surgery. DUF #90. Dr. Williams noted that plaintiff had already been scheduled for knee surgery, but could not be informed of the date due to security reasons. DUF #91.

Defendant Dr. Smith is the Chief Physician and Surgeon at MCSP. DUF #93. On October 8, 2004, plaintiff was brought to the infirmary with a 1/2 " prolapse and was treated by defendant Dr. Smith. DUF #136. An exam did not reveal any active bleeding and was the expected normal color of the rectal lining. DUF #138. Dr. Smith did not provide plaintiff with in cell feedings, because he did not believe it was medically necessary. DUF #142. Plaintiff and Dr. Smith disagreed about the proper course of action to further deal with the rectal prolapse condition. Dr. Smith did not provide plaintiff with in cell feeding, because he did not believe it was medically necessary. DUF #142. Plaintiff chose to go to Ad. Seg., rather than return to his cell without in cell feeding. DUF #141.

Dr. Nale was a doctor in 2006 on the A Facility yard. DUF #98. Dr. Nale first saw plaintiff on March 15, 2006, simply to confirm that plaintiff had an appointment with an outside doctor for an orthopedic consult. DUF #99-101. Plaintiff mentioned his knee was bothering him due to sitting for long periods of time in his education assignment and he wanted a medical lay in and in cell feed, but Dr. Nale found nothing significant. DUF #103. Dr. Nale concluded there was no medical reason for a lay-in or in cell feed and denied these requests. DUF #104. Dr. Nale did re-new plaintiff's knee brace chrono. DUF #105. This was the only time plaintiff mentioned any knee issues to Dr. Nale. DUF #106.

On April 20, 2006, Dr. Nale re-submitted defendant Akintola's GI referral as a validation for Akintola's previous request for a GI referall. DUF #107. On August 31, 2006, Dr. Nale treated plaintiff for a skin issue unrelated to plaintiff's knee or rectal prolapse. DUF #112. Dr. Nale provided plaintiff with a chrono for a medical lay in and in cell feed through September 8, 2006. DUF #113.

Disputed Facts

Dr. Williams contends that he never personally treated plaintiff, he just reviewed the appeals discussed above. DUF #85. However, plaintiff alleges that Dr. Williams treated him four times regarding his knee and rectal prolapse. Plaintiff's Declaration (Pl. Decl.) ¶38. Though, plaintiff does not describe the substance of these examinations.

Dr. Smith contends that his position was generally as administrator of the MCSP staff. DUF #94. Plaintiff states that Dr. Smith examined him three times for his knee and rectal prolapse. Pl. Decl. ¶39.

Dr. Nale states that plaintiff never asked him for any assistive device such as grab bars or a commode chair. DUF #144. Plaintiff states that he asked Dr. Nale for grab bars or a commode chair PUF #114.*fn8

Failure to Exhaust Administrative Remedies

In their August 17, 2009, motion for judgment, defendants argued that plaintiff had failed to exhaust administrative remedies against nearly all defendants. Doc. 192. The court denied this motion on November 9, 2009. Doc. 207. Defendants also raised the failure to exhaust argument in their June 11, 2010, pretrial statement. Doc. 234. The court denied this argument in the Pretrial Order pointing to the court's prior ruling. Doc. 236. In the instant motion for summary judgment, defendants again raise the exhaustion argument.

Defendants' argument that plaintiff failed to exhaust his administrative remedies is again denied. Below is an excerpt from the court's prior opinion:

Plaintiff filed the original complaint in this action on January 5, 2007, alleging violations of his civil rights and the Americans with Disabilities Act (ADA) at Mule Creek State Prison (MCSP), where he was housed. Plaintiff alleged that he had been denied adequate medical care for knee problems and a rectal prolapse. Plaintiff alleged that he had been denied knee surgery, a walking cane, grab bars, crutches, a single cell due, cell meals and a raised toilet seat. Plaintiff also alleged that defendants were improperly requiring him to use public restrooms. Plaintiff also claimed that he had not been given an adequate job assignment. On April 11, 2007, the court ordered service of defendants Smith, Grannis, Tedder, Nale, Campbell, Akintola, Garcia, Johnson, Reaves, Reyes and Kinnick. FN FN The court also ordered service of named defendants Cate and Azcona. These individuals are no longer defendants in this action.

On August 23, 2007, defendants first appeared in this action by filing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On December 5, 2007, the court recommended that defendants' motion be denied as to the claims against Smith. The court ordered the motion granted with leave to amend as to the claims against the other defendants.

On November 21, 2007, plaintiff filed a notice of change of address indicating his transfer to High Desert State Prison (HDSP).

On May 29, 2008, plaintiff filed an amended complaint consisting of two separately filed documents, court file nos. 86 and 88. The amended complaint names Grannis, Tedder, Nale, Campbell, Akintola, Garcia and Johnson as defendants. Newly named as defendants were Subia, Hamilton, Casperite, Hoepner, Williams, Cullen, Felker, Perez, Hale, James, Agyeman and Clark. The amended complaint included allegations regarding conditions at MCSP and HDSP. The claims against the newly named defendants at HDSP were similar to those raised against the defendants located at MCSP.

On June 26, 2008, the court ordered the original defendants to answer the amended complaint and ordered service of the new defendants. On August 26, 2008, the original defendants filed an answer to the amended complaint. On November 4, 2008, newly named defendants Casperite, Felker, Hamilton, Hoepner, James, Perez and Subia filed an answer to the amended complaint.

On November 10, 2008, the court issued a scheduling order setting the dispositive motion cut-off date for June 19, 2009. On January 22, 2009, newly named defendants Hale, Clark, Agyeman and Williams filed an answer to the amended complaint.

On February 27, 2009, defendants filed a motion to modify the scheduling order. Defendants requested that the court extend the discovery cut-off and dispositive motion filing dates because new defense counsel had been assigned. On March 13, 2009, the court granted this motion, and re-set the dispositive motion cut-off date to August 19, 2009.

On August 17, 2009, defendants filed the pending motion to dismiss and for judgment on the pleadings.

Analysis 42 U.S.C. § 1997e(a) provides that, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

Defendants' motion for failure to exhaust administrative remedies is brought pursuant to Fed. R. Civ. P.12(b).

Under Fed. R. Civ. P. 12(b), as to the specifically enumerated grounds 1 through 7, the rule announces that "[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed." This court finds that although this motion is one that is brought under the nonenumerated grounds of Rule 12(b), that, similarly, such a motion, generally, is timely when it, too, is brought prior to the filing of an answer. This is so because defendants have ready access to the CDCR records, or lack thereof, to support the motion and, if they do not, they have the means to seek an extension of time before filing an answer from the court to be permitted to gather the requisite information.

Moreover, the MCSP defendants appeared in this action two years ago. Since that time, the MCSP defendants have filed a motion to dismiss for failure to state a claim pursuant to Fed. R Civ. P. 12(b)(6) and an answer. The court has spent considerable resources on this action since that time.

Seven of the newly named HDSP defendants filed their answer nine months before the pending motion was filed. The other three newly named HDSP defendants on whose behalf the pending motion is brought filed their answer seven months before this motion was filed. Since the filing of the answers, considerable court time and resources have been spent on this action. For example, on March 24, 2009, and August 3, 2009, the court issued orders denying three motions to compel filed by plaintiff. Had defendants timely filed their motion to dismiss, the court most likely would not have had to devote the extensive time and resources it did to evaluating these motions.

This court has not been able to uncover any binding and conclusive authority on the issuance of the timeliness, or lack thereof, of a nonenumerated 12(b) motion; however, the undersigned finds that the reasoning set forth in a federal court in the Central District of California, where the district judge found defendant's motion to dismiss for nonexhaustion of administrative remedies, filed some ten months after the filing of the answer, untimely, best encapsulates the position of the undersigned:

Moving Defendant cites no case law which indicates that the issue of exhaustion of administrative remedies may only be raised through a motion for summary judgment. On the contrary, the Ninth Circuit has repeatedly found that "failure to exhaust non-judicial remedies is a matter in abatement, not going to the merits of the claim, and as such is not properly raised in a motion for summary judgment."

Ritza v. International Longshoremen's And Warehousemen's Union, et al., 837 F.2d 365, 368 (9th Cir.1988) (citation omitted); Inlandboatmens Union of the Pacific v. Dutra Group, 279 F.3d 1075, 1083 (9th Cir.2002) ("We have held that a failure to exhaust non-judicial remedies must be raised in a motion to dismiss, and should be treated as such even if raised as part of a motion for summary judgment.")

Under previously existing Ninth Circuit case law, Moving Defendant should have brought his challenge to Plaintiff's claims based on failure to exhaust administrative remedies through a timely motion to dismiss rather than a motion for summary judgment.

The Ninth Circuit allows a Rule 12(b) motion any time before the responsive pleading is filed. See Aetna Life Ins. Co. v. Alla Medical Services, Inc., 855 F.2d 1470, 1474 (9th Cir.1988) (citing Bechtel v. Liberty Nat'l Bank, 534 F.2d 1335, 1340-41 (9th Cir.1976) (In Bechtel, the Ninth Circuit noted that "while some courts hold that Rule 12(b) motions must be made within 20 days of service of the complaint, the rule itself only requires that such motions 'be made before pleading if a further pleading is permitted." ')

Thomas v. Baca, 2003 WL 504755, *2 (C.D. Cal. 2003) [emphasis added]. While, of course, defendants have not brought this motion technically within a motion for summary judgment, but, instead have brought it two days before the dispositive motion cut-off date, the reasoning is no less apposite. The undersigned is aware of conflicting decisions at the district court level within this circuit, see, e.g., Rigsby v. Schriro, 2008 WL 2705376, *1 n. 2 (D. Ariz. 2008) (finding that, where defendant simultaneously filed an answer -- asserting the failure to exhaust defense -- and an unenumerated motion to dismiss for failure to exhaust administrative remedies, such a motion "need not be made before answering"); Tyner v. Schriro, 2008 WL 752612, *1 n. 1 (D. Ariz. 2008) (same); see also, Thrasher v. Garland, 2007 WL 3012615 *2 (W.D. Wash. 2007) (asserting that, although a motion to dismiss pursuant to the specifically enumerated grounds of Rule 12(b) should be brought before the answer is filed, a nonenumerated 12(b) motion "need not necessarily be brought prior to the filing of the answer."

However, this court finds the reasoning of Thomas v. Baca, supra, to better promote judicial efficiency and economy while at the same time limiting unfair prejudice to a pro se prisoner plaintiff. As noted, the state attorney general has virtually unlimited access to CDCR records. Defendants' counsel makes no effort whatever to explain why such a motion could not have been brought prior to the filing of the answer on behalf of these defendants, and prior to the time when this court had expended resources adjudicating discovery disputes and several motions for injunctive relief as well as other matters. Nor is the question of exhaustion, or lack thereof, of administrative remedies a jurisdictional one. Wyatt v. Terhune, 315 F.3d 1108, 1119 n. 13 ("PLRA exhaustion is not a jurisdictional requirement.") Accordingly, the undersigned will not reach the merits of defendants' 12(b) motion as this court finds the motion to be untimely.

November 9, 2009, Findings & Recommendations at 2-6.*fn9

For these same reasons, defendants' request to dismiss for failure to exhaust is denied.

Eighth Amendment

Legal Standard

In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299, 111 S. Ct. 2321, 2324 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4, 112 S. Ct. 995, 998 (1992).

A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F.2d 1332');">900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

In Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994) the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835, 114 S. Ct. at 1978. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37, 114 S. Ct. at 1979. Neither is it sufficient that a reasonable person would have known of the risk or that a defendant should have known of the risk. Id. at 842, 114 S. Ct. at 1981.

A prison official acts with "deliberate indifference ... only if the [prison official] knows of and disregards an excessive risk to inmate health and safety." Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir.2002) (citation and internal quotation marks omitted). Under this standard, the prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," but that person "must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk." Gibson, 290 F.3d at 1188 (citation omitted). FN4 This "subjective approach" focuses only "on what a defendant's mental attitude actually was." Farmer, 511 U.S. at 839, 114 S.Ct. 1970. "Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights." McGuckin, 974 F.2d at 1059 (alteration and citation omitted).

FN4. In a recent case, we recognized that "deliberate indifference to medical needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm." Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir.2003) (citations omitted); see also Gibson, 290 F.3d at 1197 (acknowledging that a plaintiff may demonstrate that officers "must have known" of a risk of harm by showing the obvious and extreme nature of a detainee's abnormal behavior).

Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).

Also significant to the analysis is the well established principle that mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

Moreover, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

Additionally, mere delay in medical treatment without more is insufficient to state a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 408 (9th Cir. 1985). Although the delay in medical treatment must be harmful, there is no requirement that the delay cause "substantial" harm. McGuckin, 974 F.2d at 1060, citing Wood v. Housewright, 900 F.2d 1332, 1339-1340 (9th Cir. 1990) and Hudson, 112 S. Ct. at 998-1000. A finding that an inmate was seriously harmed by the defendant's action or inaction tends to provide additional support for a claim of deliberate indifference; however, it does not end the inquiry. McGuckin, 974 F.2d 1050, 1060 (9th Cir. 1992). In summary, "the more serious the medical needs of the prisoner, and the more unwarranted the defendant's actions in light of those needs, the more likely it is that a plaintiff has established deliberate indifference on the part of the defendant." McGuckin, 974 F.2d at 1061.

Superimposed on these Eighth Amendment standards is the fact that in cases involving complex medical issues where plaintiff contests the type of treatment he received, expert opinion will almost always be necessary to establish the necessary level of deliberate indifference. Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988). Thus, although there may be subsidiary issues of fact in dispute, unless plaintiff can provide expert evidence that the treatment he received equated with deliberate indifference thereby creating a material issue of fact, summary judgment should be entered for defendants. The dispositive question on this summary judgment motion is ultimately not what was the most appropriate course of treatment for plaintiff, but whether the failure to timely give a certain type of treatment was, in essence, criminally reckless.

Discussion*fn10

As stated above, plaintiff has attempted to frame his ADA claims such as the denial of crutches or bathroom grab bars, also as Eighth Amendment claims for deliberate indifference. The court will not address many of these claims as they are not properly brought as Eighth Amendment claims and will be discussed below in the ADA section. The court will address a few defendants who appear to only be in this action for their roles related to plaintiff's ADA claims, but plaintiff has attempted to link them to Eighth Amendment claims. As will be discussed, it is clear none of their actions constitute deliberate indifference. Finally, plaintiff has attempted to add Eighth Amendment claims against Campbell and Subia which the court will not address as the defendants are only in this action with respect to the ADA claim.

While denying crutches or lay ins could potentially rise to the level of an Eighth Amendment claim, plaintiff's allegations involve his comfort and ability to use prison services, which are properly brought under the ADA. Ultimately, it is not entirely clear what are plaintiff's Eighth Amendment claims other than a general dissatisfaction regarding the treatment he received for his knee and rectal prolapse.

It is undisputed that during the relevant period, plaintiff received 67 primary care physician visits, 43 with medical doctors and the remaining 24 with physicians assistants or nurse practitioners. From 2003 to 2007, plaintiff received three surgeries by independent outside medical facilities, one to repair his rectal prolapse and two ACL reconstructions. From 2003 to 2007, plaintiff received numerous gastroenterolology consultations with UC Davis physicians concerning is rectal prolapse and numerous orthopedic consultations with outside orthopedists. From 2003 to 2007, plaintiff received five x-rays of his knee over a two-year period and two MRIs of his knee over a four-year period.

Finally, simply stating in his declaration that he received improper treatment, without detail or support is insufficient. "Conclusory affidavits that do not affirmatively show personal knowledge of specific facts are insufficient [to defeat summary judgment].'" Intermountain Fair Housing v. Boise Rescue, __F.3d__, __WL __, Slip Op. 10-35519 at 17773 (9th Cir. September 19, 2011).

Dr. Smith and Dr. Nale

Plaintiff argues that Dr. Smith unnecessarily delayed his rectal prolapse surgery. However, it is undisputed that plaintiff's rectal prolapse first came to the attention of MCSP staff on October 28, 2003. Surgical intervention through an outside provider was requested on an urgent basis and approved two days later on October 30, 2003. Plaintiff was evaluated by UC Davis Medical Center on November 5, 2003, and because plaintiff's condition worsened quickly he was taken to UC Davis where emergency rectal prolapse surgery was performed on December 26, 2003.

Plaintiff argues the surgery was delayed by 21 months, though it is clear it occurred within two months of plaintiff's first complaint. Even if plaintiff were to argue that the two month delay was improper, it is abundantly clear that Dr. Smith and MCSP staff properly treated plaintiff. Plaintiff was immediately referred to UC Davis and seen within a week of his first complaint and immediately scheduled for surgery when his condition worsened. This allegation is frivolous.*fn11

There are also no genuine issues as to any material fact with respect to Dr. Nale. It is undisputed that Dr. Nale saw plaintiff to confirm an outside appointment for an orthopedic consult when plaintiff mentioned his knee was bothering him due to sitting for long periods of time in his education assignment. As a result plaintiff wanted a medical lay in and in cell feed, but Dr. Nale found nothing significant to warrant this, and instead renewed plaintiff's knee brace chrono. No facts have been presented demonstrating that Dr. Nale's denial of a medical lay in or cell feed on this one occasion was in violation of the Eighth Amendment.

Plaintiff also alleges that Dr. Smith and Dr. Nale violated the Eighth Amendment by denying him at different times crutches, grab bars and a commode chair. As stated above, these claims will be discussed as a violation of the ADA below.

For all these reasons, defendants motion for summary judgment with respect to these defendants violating the Eighth Amendment should be granted.

Dr. Williams

Dr. Williams was involved with plaintiff's 2003 grievance, requesting a walking cane. It is undisputed that Dr. Williams actually continued the walking cane chrono until plaintiff had an outside orthopedic evaluation in December 2003. Plaintiff either did not show up for the orthopedic evaluation or was never called for it by prison officials. Regardless, there are no further facts concerning the cane chrono and Dr. Williams. Plaintiff has failed to show that Dr. Williams continuing the cane chrono until an orthopedic evaluation violates the Eighth Amendment.

Dr. Williams then reviewed a 2007 grievance where plaintiff requested to know if he was getting the knee surgery that was promised. Dr. Williams responded that plaintiff was receiving the knee surgery but could not be told the exact date for security concerns. This presents no claim.

The parties dispute whether Dr. Williams ever personally treated plaintiff. Assuming arguendo that plaintiff's factual assertions are correct, the court will assume that Dr. Williams treating plaintiff four times for his knee and rectal prolapse. However, there are no further facts presented on what treatment Dr. Williams actually provided. Simply stating in his declaration that Dr. Williams provided improper treatment, without discussing the treatment is insufficient. "Conclusory affidavits that do not affirmatively show personal knowledge of specific facts are insufficient [to defeat summary judgment].'" Intermountain Fair Housing v. Boise Rescue, __F.3d__, __WL __, Slip Op. 10-35519 at 17773 (9th Cir. September 19, 2011). Summary judgment is granted for Dr. Williams on this claim.

Akintola

The claim against Akintola arises from him denying a medical lay in for plaintiff and allegedly telling plaintiff to take some ibuprofen and deal with his daily problems. Plaintiff alleges that the following day he was attempting to make a grab bar out of a garbage can when he fell and injured himself. Amended Complaint (Doc. 86) at 10. Other than this allegation, there are no facts presented against Akintola. It is not even clear why plaintiff was in pain and how the failure to be provided a lay in was deliberately indifferent. That plaintiff fell while trying to make a grab bar out of a garbage can cannot be attributed to Akintola and plaintiff has failed to present any material facts to successfully oppose summary judgment for this defendant.

Americans with Disabilities Act

The absence of a deliberate indifference claim was never much in doubt in the undersigned's mind. Rather, the ADA claim appeared at one time to be the claim with some potential merit as plaintiff, at times, did have significantly problematic medical issues. However, the specifics of that claim are still lacking given the lengthy period of time at issue, the waxing and waning of plaintiff's medical condition, and the lack of any link-up of plaintiff's condition at a specific time to any alleged discrimination. For example, during those periods when plaintiff did have a cane, how did this accommodation affect his ability to receive education classes? Did it solve the problem, or was there some other problem hindering his attendance at a specific time? Or how would a grab bar in his cell have made any difference to the ADA case, i.e., what programs or services were impeded (within the parameters of the Pretrial Order) by the lack of a grab bar in plaintiff's cell (or is plaintiff claiming that grab bars were necessary in every possible bathroom with which plaintiff may have come in contact within the prison?). Plaintiff makes no specification of the period of time(s) in which deliberate indifference was exhibited towards his disabilities (a necessary finding given that plaintiff's only ADA claim at this point is one for damages). As set forth earlier, the parties, especially plaintiff, wander about with allegations and arguments making this adjudication an exercise in frustration. Adjudicating the ADA claim on summary judgment is akin to grappling with the invisible man.

Legal Standard

Title II of the ADA "prohibit[s] discrimination on the basis of disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by such entity." 42 U.S.C. § 12132. Title II of the ADA applies to inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 1955 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir. 1996).

In order to state a claim that a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a "qualified individual with a disability"; (prerequisite) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).

A "disability" is defined by the ADA as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). The court will not debate at length here on summary judgment whether plaintiff suffered from a disability. At the very least, there is an issue of fact that plaintiff's rectal prolapse and knee condition affected one or more of plaintiff's major life activities. Given the prison environment, the rectal prolapse condition could clearly affect plaintiff's ability to be with other prisoners.

However, it is also important to emphasize that a disability alone is not the sole prerequisite for an ADA claim. It is not enough that defendants did not make plaintiff's life in prison more comfortable or easy in every respect in light of his disability. See Memmer v. Marin County Courts, 169 F.3d 630, 633 (9th Cir. 1999). Rather, plaintiff must show that defendants discriminated against him in terms of making prison programs and activities available to him when compared to non-disabled inmates. See Brown v. City of Los Angeles, 521 F.3d 1238, 1241 (9th Cir. 2008). At least part of plaintiff's claim herein, and that which is assuredly not actionable, is that plaintiff's prison conditions in general were not made more palatable.

Although § 12132 does not expressly provide for reasonable accommodations, the implementing regulations provide that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. §35.130(b)(7). The duty to provide "reasonable accommodations" or "reasonable modifications" for disabled people under Title II of the ADA arises only when a policy, practice or procedure discriminates on the basis of disability. Weinreich v. Los Angeles County MTA, 114 F.3d 976, 979 (9th Cir. 1997).

Moreover, plaintiff bears the burden of proof to establish "the existence of specific reasonable accommodations" that the prison failed to provide. Memmer, 169 F.3d at 633 (emphasis added) citing Weinreich, supra. In this summary judgment context, plaintiff bears the burden of demonstrating an issue of fact that what he proposed was indeed necessary and reasonable. This requirement has some temporal ramifications in that an accommodation, reasonable and necessary at some time within a four year stretch, may not be reasonable and/or necessary at other times. Plaintiff must relate the lack of a reasonable accommodation to a particular program or activity which correlates to his medical condition at the time he could not participate or was unduly impeded in his participation. In many cases, a plaintiff's condition will not vary, e.g., he must use a wheelchair at all times, or plaintiff is blind. The need for and extent of accommodations necessary for programs and activities will therefore generally also not significantly vary over time. In other cases, such as this one, the varying severity of the condition at the time of the allegedly denied program/activity, e.g., painful knee, may well define the necessary accommodation, or the fact that no accommodation is necessary. A less painful knee may require no accommodations and a debilitating knee condition may well require significant accommodation. For example, does plaintiff contend that his knee condition required an accommodation to attend education classes when he was indisputably able to play basketball on this knee? The ADA does not presume that the severity, or even existence, of all disabilities extant at one time are forever. Therefore, it was incumbent upon plaintiff to temporally relate his precise medical condition to the time of the alleged program/activity impedance. As seen infra, this, he has not done at all.

Causation in ADA cases is also important. Plaintiff must produce an issue of fact here that his exclusion from programs or activities, or other significant impedance to the benefits of such programs, was "solely by reason of his disability." Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001). See also Martin v. Cal. Dept. Of Veteran Affairs, 560 F.3d 1042, 1049 (9th Cir. 2009).

The Ninth Circuit has held that the prison context is of special relevance to an otherwise generic ADA claim. "[W[e have held that inmates' rights must be analyzed 'in light of effective prison administration."...[I]nmates claims that their rights under the Rehabilitation Act [same standards as an ADA claim, see n. 27]] had been violated were subject to the so-called 'reasonable relation" standard articulated in Turner, 482 U.S. at 89, 107 S.Ct. 2254. [footnote omitted]. Under Turner, a regulation that would impinge on inmates' constitutional rights is nevertheless valid if it is reasonably related to the prison's legitimate interests." Pierce v. County of Orange, 526 F.3d 1190, 1216 (9th Cir. 2008). Defendants proffer here that several of plaintiff's requested accommodations would have implicated prison safety, yet plaintiff makes no mention of this.

Plaintiff may bring a claim under Title II of the ADA against state entities for damages.*fn12 See Phiffer v. Columbia River Correctional Institute, 384 F.3d 791 (9th Cir. 2004). However, the standard for recovery of such damages is deliberate indifference to plaintiff's rights under the ADA. Plaintiff cites the correct case, Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001), and its correct holding: "Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood." However, in part, plaintiff does not relate his arguments to denial of rights under the ADA. At best the evidence simply shows a disagreement between plaintiff and prison officials.

Discussion

Plaintiff contends that his rectal prolapse and knee problems qualify him as a disabled individual, which defendants dispute.*fn13 However, for purposes of the instant motion the court will assume that plaintiff is disabled. As stated before, at least for some time during the period at issue in this case, plaintiff had serious, but varying in severity, medical conditions which would easily meet the definition of causing impairment of a major life activity.

Nevertheless, summary judgment should be granted as it has not been shown in any meaningful way that the prison and its officials were deliberately indifferent in excluding plaintiff from participation in or denied the benefits of the prison's services, programs, or activities, or was otherwise deliberately indifferent in discriminating against plaintiff.

First, plaintiff has not shown that he was denied access, or had his access unlawfully impeded, to any prison activity solely on account of his disability. The only activity that plaintiff urges as a violation concerned his inability, on occasion, to attend educational classes. Plaintiff argues: that he was unable to attend classes on at least three occasions due to being in the bathroom too long in the morning. Opposition at 42. The only conclusion that can be drawn form such a statement is that plaintiff's condition made it not possible to attend class on those occasions, not that he was denied accommodations which he requested which would have made it possible to attend the classes on those occasions.

Plaintiff alleges that at different times he was denied grab bars, crutches, a cane and a commode chair. A commode chair in his cell may have made plaintiff's life more comfortable, but how would it have enabled him to make class? The same is true for an in-cell grab bar. It is true that plaintiff's knee condition may have been aided at times by crutches and canes, which in turn would have facilitated attendance at class, however, these claims are complicated as plaintiff's allegations span several years and it is undisputed that in many occasions plaintiff was provided with some or most of these accommodations, though not all of them right from the start.

During the relevant period from October 2003 to November 2007, it is undisputed that plaintiff was provided with dozens of medical chronos for crutches, a cane, medical lay ins, in cell feeds, single cell housing, low bunk, low floor housing, special consideration for work and education assignments, special access to bathrooms during work and classes, adult diapers and a colostomy bag. In fact, when some accommodations were denied, others accommodations were provided for plaintiff. While plaintiff was not provided with grab bars from the initiation of his knee probelms, he was provided with a commode chair.*fn14 Plaintiff expressly concedes in his opposition, as he quotes defendant's counsel in demonstrating that plaintiff was perceived to have disability, that plaintiff was at times "'provided [ ] with crutches, had a cane for most of the time he was at MSCP, as well as near proximity/access to a bathroom chrono [i.e. preferred bathroom access], medical lay-ins, cell feeds, sack lunches, and single cell status.'" Opposition at 39.

But even if plaintiff could show that the partial denial of all his requested accommodations at any time could result in a violation of the ADA, the case for finding deliberate indifference is entirely absent. The above accommodations given were the sum total (and more) of what was listed in the Pretrial Order as accommodations which were allegedly denied to plaintiff. Apparently, even according to plaintiff, they were not denied. It is difficult to understand how giving plaintiff these accommodations results in deliberate indifference. If plaintiff means to argue that he was not given these accommodations at specific times, it was incumbent upon plaintiff to specifically demark the time at which plaintiff did not have an above listed accommodation, and why the lack of whatever accommodation plaintiff did not have exhibited deliberate indifference. This has not been done at all.

In addition, the undisputed evidence shows that plaintiff was provided adult diapers, which he ceased using after a short time. Plaintiff was also offered the use of a colostomy bag, however plaintiff declined this offer. It is difficult to conceive how all of the suggested and given accommodations could result in a finding of deliberate indifference. *fn15

Plaintiff seemingly recognizes that his deliberate indifference case is non-existent under the accommodations given as he now argues that he should have been given in-cell studies in lieu of, or in addition to, all of the other accommodations. Not only is this request not part of the Pretrial Order, but plaintiff goes no distance in presenting an issue of fact that this was a reasonable accommodation. Plaintiff goes no distance in establishing the times at which this particular (and undoubtedly burdensome) accommodation was required, even if reasonable. And finally, even assuming that plaintiff had made out a case that at some particular time he was required to have been given this accommodation, the universe of accommodations that were given to plaintiff robs this argument of any merit vis-a-vis a finding of deliberate indifference.

Moreover, much of plaintiff's arguments regard how his disabilities effected his life in general and were not properly treated by medical staff. "Instances of this include but are not limited to follow up with surgery for 21 months after instruction from Dr. Vidovsky that it should be done in three, after which Dr. Vidovsky said the rectal prolapse condition had progressed too far and nothing could be done." Opposition at 42. Not only are these facts divorced from the established facts of this case, the undisputed facts show that plaintiff had surgery days after he reported it serious, and getting much worse, but this is not pertinent in examining an ADA claim. The treatment or lack of medical treatment for plaintiff's condition does not provide a basis upon which to impose liability. Burger v. Bloomberg, 418 F.3d 882 (8th Cir. 2005) (medical treatment decisions not basis for ADA claims); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (medical decisions not ordinarily within the scope of the ADA); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) ("The ADA does not create a remedy for medical malpractice.").*fn16

Thus, MCSP staff provided plaintiff many accommodations and options to aid plaintiff's disability and allow plaintiff to have benefit of all the prison's services and benefits. Even if the court is in error that plaintiff, at some time, had set forth a case that some accommodation denied at some time should have been given, plaintiff without doubt has not set forth a material issue of fact regarding deliberate indifference to plaintiff's right under the ADA.

State Claims

Defendants also move to dismiss plaintiff's state law claims, arguing that the claims should be dismissed because plaintiff did not plead compliance with the California Torts Claims Act ("GCA").*fn17 The GCA requires that a party seeking to recover money damages from a public entity or its employees must submit a claim to the entity before filing suit in court, generally no later than six months after the cause of action accrues. Cal. Gov't Code §§ 905, 911.2, 945, 950.2; seealso Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 208 (2007) ("Before suing a public entity, the plaintiff must present a timely written claim. . ."). "The legislature's intent to require the presentation of claims before suit is filed could not be clearer." City of Stockton v. Super. Ct,, 42 Cal. 4th 730, 746 (2007) ("The purpose of providing public entities with sufficient information to investigate claims without the expense of litigation is not served if the entity must file a responsive pleading alerting its opponent to the claim requirements."). Timely claim presentation is not merely a procedural requirement of the GCA but is an element of plaintiff's cause of action. Shirk, 42 Cal. 4th at 209. Thus, when a plaintiff asserts a claim subject to the GCA, he must affirmatively allege compliance with the claim presentation procedure, or circumstances excusing such compliance, in his complaint. Id. The requirement that a plaintiff asserting claims subject to the GCA must affirmatively allege compliance with the claims filing requirement applies in federal court as well. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9thCir. 1988).

In the instant case, plaintiff concedes in his opposition that he has not yet complied with the GCA. Plaintiff seeks equitable tolling to allow these claims to continue, without providing any factual reasons as to why he failed to comply with the GCA or why he should receive tolling. Plaintiff's request is denied and the state law claims against defendants are dismissed.

Accordingly, IT IS HEREBY ORDERED that:

Defendants' motion for summary judgment filed on February 25, 2011 (Doc. 292) is granted and this case is closed.

GGH: AB anay0029.sj(2)


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