FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding with counsel in an action brought under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA"). Defendants have moved for summary judgment. Dckt. No. 38. For the reasons that follow, the undersigned recommends that the motion be granted in part and denied in part.
This action proceeds on the complaint filed November 5, 2008. Dckt. No. 1. The parties do not dispute the following facts, except where noted: Plaintiff was an inmate in a California prison at the time period covered in the complaint (he has since been released). Dckt. No. 39, Def.'s Separate Statement of Undisputed Facts ISO Def.'s Mot. for Summ. J. (hereinafter "DUF") 1; Dckt. No. 42-1, Pl.'s Response to DUF (hereinafter "PUF") 1. Plaintiff ambulates with the help of a wheelchair. DUF 2; PUF 2. (Plaintiff alleges that he is a paraplegic. Dckt. No. 1 at 2.). In June 2007, prison officers transported plaintiff from a hospital in Bakersfield to the California Medical Facility in Vacaville ("CMF"). DUF 3; PUF 3. Plaintiff had been at the Bakersfield hospital for approximately two months for treatment of sores on his heels and buttocks. DUF 4; PUF 4. Plaintiff was transported in a special van used for wheelchair-bound individuals. DUF 5; PUF 5. He was placed in the open area at the back of the van, in his wheelchair, and restrained with cuffs around his ankles and a waist restraint. DUF 6, 7; PUF 6, 7. Additionally, plaintiff's wheelchair was restrained during transport so that it could not move around during the drive. DUF 8; PUF 8. Plaintiff alleges that he requested to be transported lying down or to have the restraints loosened, but those requests were denied. Dckt. No. 1 at 2. Plaintiff alleges that the seven-hour transport, in which he was unable to shift his body weight, caused him to develop painful pressure sores. Id. at 2-3. According to defendant, during the review of plaintiff's administrative appeal requesting transport lying down, a doctor determined that plaintiff was "very functional" and that there was "no indication that he required an ambulance or to lie down for all outside appointments." DUF 16. Plaintiff disputes this fact as lacking support by admissible evidence, PUF 16, but the administrative appeal documentation appended to plaintiff's deposition supports defendant's assertion, and plaintiff has raised no formal objection to that evidence. Dckt. No. 41-5, Munson Dep. at 67 (Ex. 6).
Plaintiff complains that from June through November 2007, he was housed in a cell at CMF where he could not use the toilet because it was not accessible to him. DUF 18; PUF 18. Plaintiff was moved to a single cell. DUF 19; PUF 19. Plaintiff declares that the toilet in the single cell also did not have an accessible toilet, and defendants make no effort to dispute that assertion. Dckt. 42-2, Munson Decl. ¶ 11 & Attachment A. Prison officials provided plaintiff with incontinence pads to line his bed and avoid soiling it. DUF 20; PUF 20. According to plaintiff, without the aid of gravity to defecate, he was forced to use his fingers to evacuate his bowel movements. Munson Decl. ¶ 10. Prison officials also offered plaintiff a rolling commode to use. DUF 28; PUF 28. Plaintiff declares that, while he could get onto the rolling commode with great effort, using it caused him great pain. Munson Decl. ¶ 12.
Plaintiff also alleges that the wheelchair accessible shower at his housing unit at CMF had stainless steel benches that did not come far enough away from the wall, causing him to slide off the bench. DUF 21, 24; PUF 21, 24. Nevertheless, plaintiff was able to shower regularly while at CMF. DUF 25; PUF 25.
Plaintiff has testified that he has used condom catheters for 25 years. DUF 29; PUF 29; see also Munson Decl. ¶ 15 (attesting that plaintiff uses condom catheters to drain his bladder and prevent himself from soaking himself with urine when he coughs). According to plaintiff, condom catheters can be purchased in a pharmacy without a prescription. DUF 30; PUF 30. Medical staff at CMF gave plaintiff an in-dwelling catheter hose rather than condom catheters on his arrival at CMF. DUF 31; PUF 31; Munson Decl. ¶ 16. Plaintiff attests that the in-dwelling catheter caused irritation. Id. Plaintiff requested condom catheters in June 2007, but attests that he did not receive them for six months. Munson Decl. ¶ 17; Munson Dep. at 61 (Ex. 4). According to defendant, CMF medical staff did not give plaintiff condom catheters for a period of two months "because they had run out,"but reordered them. DUF 35, 36. Plaintiff disputes these facts on the basis that defendant fails to offer admissible evidence of them (PUF 35, 36), but the administrative appeal documentation attached to plaintiff's deposition supports defendant's assertions, and plaintiff has not formally objected to that evidence. Munson Dep. at 61 (Ex. 4). As of December 12, 2007, plaintiff was satisfied with his catheter supply. DUF 37; PUF 37.
Plaintiff alleges that the canteen at CMF had more items available for non-disabled prisoners than it does for disabled prisoners and that plaintiff could not buy coffee, Top Ramen, or candy. DUF 42, 43; PUF 42, 43. Plaintiff concedes that the availability of canteen items at CMF hinged on an inmate's housing in the prison hospital rather than his disability status. DUF 46, 47; PUF 46, 47.
Plaintiff makes some additional allegations in his complaint that defendant has not addressed in the instant motion for summary judgment:
[O]n June 30, 2007, in the very first shower experience after his transportation nightmare identified [above], [plaintiff] injured himself. He was brought to the shower facilities by prison official, "F. Watts." Without any grab bars to hang onto, he ended up slipping off the bench falling to the floor and smacking his hip and legs, aggravating previous injuries. He lied bleeding on the floor of the shower for some time before a nurse and official came to assist him.
Aggravated or caused by the injuries sustained in the fall in the shower room, the plaintiff has been experienc[ing] significant pain in his lower back and hip. Moreover, he has fractured that hip and has broken Harrington rods in his back and the wires that hold the rods to his vertebras are unraveling and poking him in his muscles and nerves, causing pain and causing him to lose his breath. He has complained repeatedly that he is not getting adequate (or any) treatment for these injuries. He was told over a period of months that he was going to be seeing an outside orthopedic specialist.
Finally, after ten months, on March 17, 2008, he was taken to see Dr. Burch in San Francisco about the rods that broke in his back and about his June 2007 fall. He was supposed to be transported in an ambulance. But on the day of transportation they put him in a van. When he returned from that trip, he was bedridden for days because his right hip and leg were swollen. Dr. Burch had not been informed about the fall and injury to the lower back and said he would set it for a CAT scan.
Dckt. No. 1 at 3, 4; see also id. at 8 (alleging that defendant's failure to provide appropriate medical care ...