The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with an action brought pursuant to Title II of the Americans with Disabilities Act ("ADA"). Pending before the court are cross-motions for summary judgment. Also pending is defendant's motion for sanctions. After carefully reviewing the record, the undersigned recommends that the cross-motions for summary judgment be denied and denies defendant's motion for sanctions.
II. Standards for Summary Judgment
Summary judgment is appropriate when a moving party establishes that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is 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 (1986). "[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. at 323. 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.
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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a 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 630. 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 a 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 586 (citation omitted).
Plaintiff is housed at California State Prison-Solano ("CSP-Solano"). Plaintiff suffers from mental illness for which he takes antipsychotic medication. Plaintiff is a member of the Coleman class action. See Coleman v. Scharzenegger, No. S-90-520 JFM LKK P. The Coleman class includes all inmates with serious mental disorders who are or who will be confined within the California Department of Corrections and Rehabilitation ("CDCR"). Inmates suffering from serious mental disorders including schizophrenia and bipolar disorder who do not have the ability to function without psychiatric intervention, including psychotropic medication, are included in the class.
In 1992, the district court issued the Coleman heat plan injunction. Pursuant to this plan, a subclass of Coleman plaintiffs, i.e., "heat risk inmates" who were prescribed psychotropic medications, were granted an injunction. Pursuant to this injunction, if the temperature exceeds 90 degrees outside of the facility, a heat risk inmate "will be afforded the opportunity to return to his housing unit in order to take precautions to mitigate any potential heat related illness." (Dkt. 56-5 at 9.) "The inmate will have been afforded a ducat in the form of Attachment D so that institution employees are aware of the ability of the inmate to return to his housing facility during such an event." (Id.)
Pursuant to the injunction, "[i]f a heat risk inmate is classified as a "CAT J" inmate, or if the inmate is awaiting transfer for psychiatric evaluation for "CAT I" or "CAT J", and in the event that these inmates are outside of their housing facilities for some reason, these inmates shall be ordered to return to their housing facility" when the temperature outside exceeds 90 degrees. (Id. at 9-10.)
Under the court ordered heat plan from Coleman, each prison within the CDCR is responsible for maintaining its own heat plan. CSP-Solano's heat plan is called the Extreme Weather Plan and is subject to compliance monitoring by the court in Coleman.
Pursuant to CSP-Solano's Extreme Weather Plan, when the outside temperature reaches 90 degrees, control staff announce over the institutional PA that all inmates on heat risk medication are to return to their housing units. (Dkt. No. 56-5 at 30; Dkt. 56-3 at 2.) Housing unit staff have a list of inmates that are receiving heat risk medication and account for them in the unit. (Dkt. 56-3 at 2.) Inmates are placed in their cell if their tier is not scheduled for day room during these times. (Id.)
Plaintiff is a heat risk inmate, although it is not clear whether he is classified as "CAT J."
This action is proceeding on the original complaint filed August 5, 2009. The only remaining defendant is the CDCR. Plaintiff alleges that when the temperature outside exceeds 90, he is locked in his cell rather than being allowed to go to the day room. Plaintiff claims that his placement on what amounts to a lockdown when the outside temperature reaches 90 degrees violates the ADA.
This action is proceeding on plaintiff's request for money damages only. On December 22, 2010, the court dismissed plaintiff's request for injunctive relief.
V. Summary Judgment Motions
A. Statute of Limitations
Defendant argues that plaintiff's claims are barred by the statute of limitations. The ADA does not contain a specific statute of limitations. The undersigned assumes without deciding that California's two-year personal injury statute of limitations applies. Cal. Civ. Proc. Code § 335.1; Pickern v. Holiday Quality Food, Inc., 293 F.3d 1133, 1137 n.2 (9th Cir. 2002) (assuming without deciding that California's personal injury statute of limitations applies to ADA claims); Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135--36 (9th Cir. 2001) (noting without deciding that with rare exception, district courts apply California's personal injury statute of limitations to federal disability discrimination claims).
Prisoners serving a sentence of less than life are entitled to two years of tolling of the statute of limitations. Cal.Civ.Proc.Code § 352.1. Because plaintiff is eligible for parole, i.e., he is serving a sentence less than life without parole, he is eligible for the two years of tolling. See Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998) (inmate serving term of life imprisonment with the possibility of parole may claim statutory tolling); (Dkt. 56-7 at 2; plaintiff's deposition transcript discussing his sentence). Accordingly, plaintiff is eligible for two years of tolling.
A federal cause of action accrues, and the statute of limitations begins to run, when a plaintiff knows or has reason to know of the injury that is the basis of the action. Alexopulos v. San Francisco Unified School District, 817 F.2d 551, 555 (9th Cir. 1987).
Defendant argues that plaintiff's claims are barred by the statute of limitations because he did not file this action within four years of when he first arrived at CSP-Solano in December 2002 and was first subject to the Extreme Weather Plan in the summer of 2003. (Dkt. No. 56-7 at 28; plaintiff's deposition transcript discussing when he arrived at CSP-Solano).
In his opposition to defendant's motion, plaintiff argues that pursuant to the continuing violation doctrine, his claims are not barred by the statute of limitations. The continuing violation doctrine is an equitable doctrine designed to "prevent a defendant from using its earlier illegal conduct to avoid liability for later illegal conduct of the same sort." O'Loghlin v. County of Orange, 229 F.3d 871, 875 (9th Cir. 2000). To establish a continuing violation, a plaintiff must show "a series of related acts against a single individual . . . that . . . are related closely enough to constitute a continuing violation." Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480-81 (9th Cir. 1989).
As articulated in the employment context, the Ninth Circuit has "recognized two methods by which a plaintiff may establish a continuing violation. First, the plaintiff may show a serial violation by pointing to a series of related acts against one individual, of which at least one falls within the relevant period of limitations. . . . Second, a plaintiff may show a systematic policy or practice of discrimination that operated, in part, within the limitations period -- a systemic violation." Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 822 (9th Cir. 2001) (footnote, citations and internal quotation marks omitted). "A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation." Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981) (citation omitted)). "Mere continuing impact" from a past violation is not actionable under the continuing violation doctrine. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001)
In his opposition to defendant's summary judgment motion, plaintiff argues that he was first required to go to his cell when the outside temperature exceeded 90 degrees in the summer of 2003. Plaintiff argues that he was again subject to this "policy" in the summers of 2004 through 2008. Plaintiff's deposition testimony is consistent with this representation. (Dkt. 56-7 at 27-28.)
In the reply to plaintiff's opposition, defendant argues that plaintiff's claim for application of the continuing violation doctrine is foreclosed by Knox v. Davis, 260 F.3d 1009 (9th Cir. 2001). Defendant argues that in Knox the Ninth Circuit held that a limitations period began running on the date of a parole board's initial determination, when a prisoner "had notice of all of the wrongful acts she wished to challenge at the time of the [initial determination]." Knox, 260 F.3d at 1014. Defendant argues that the Ninth Circuit rejected a continued violation theory, explaining that any continuing effects are "nothing more than the delayed, but inevitable, consequences of the [initial determination.]" Id.
As noted above, Knox stands for the proposition that "mere continuing impact" from a past violation is not actionable under the continuing violation doctrine. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). In the instant case, plaintiff is not complaining about continuing impact from a past violation. Rather, plaintiff is complaining of continual unlawful acts that occurred each summer for six years. The last alleged violation occurred in the summer of 2008. Because this action was filed within four years of the summer of 2008, ...