The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding with counsel. He has filed a motion for summary judgment with respect to his claims for money damages arising under the Americans with Disabilities Act (ADA) against the California Department of Corrections and Rehabilitation (CDCR) and the State of California. Oral argument was heard with respect to the motion on January 11, 2012.
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)).
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).
Plaintiff's claim arises under Title II of the ADA. In order to prevail, plaintiff must show: 1) he is an individual with a disability; 2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs or activities; 3) he was either excluded from participation in or denied the benefits of the public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and 4) such exclusion, denial of benefits, or discrimination was by reason of his disability. McGary v. Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).
Also, to recover money damages under Title II, a plaintiff must prove that he was discriminated against intentionally. Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001). In order to prove intentional discrimination, a plaintiff must show: 1) that a public entity had knowledge that a violation of his rights under the ADA was substantially likely to occur; and 2) at a minimum, the public entity failed to act. Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002). The first element of the "deliberate indifference" test is satisfied if the public entity has notice that an accommodation under the ADA is required. Id. The second is satisfied if the entity's failure to act is a result of conduct that is more than negligent and involves an element of deliberateness. Id. The acts of an employee of a public entity are generally deemed acts of the public entity for purposes of this analysis. See Anthony v. City of New York, 339 F.3d 129, 141 (2d Cir. 2003) (allegations of discrimination by New York City police officers are allegations of discrimination by the City of New York for purposes of Title II of the ADA).
The following material facts, unless otherwise indicated, are undisputed or are not reasonably subject to dispute. Plaintiff, 46, fractured his right hip in a car accident in 1997. While the fracture was repaired, plaintiff still suffers from what he calls "progressive" pain in his hip and back. On May 25, 2005, plaintiff was identified by prison staff as being "mobility impaired." Mot. Summ. J., App. 2. Staff noted on a "Disability Program Verification Form" that plaintiff required a lower bunk, a wheelchair accessible path of travel and that he not be forced to climb stairs. Further, staff noted that plaintiff did not require a wheelchair while in his cell, but should be allowed to use one outside of his cell or be allowed to use a walker. Medical records from July, 2007, shortly after the events relevant to the claims before the court took place, indicate that plaintiff could occasionally stand up, and could walk a few steps with the help of a cane. Opp'n, Ex. C.
In May, 2006, plaintiff was moved from the "Y" dorm at the California Medical Facility (CMF) to the "U" dorm.*fn1 The "Y" dorm has a shower plaintiff accessed with a wheelchair. However, the "U" dorm shower was not accessible with a wheel chair because it had an approximately six-inch high threshold blocking the entrance.*fn2 Also, once over the threshold, plaintiff had to walk at ...