The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants' decision to remove him from single cell status violated his constitutional rights.*fn1 Pending before the court is defendants' motion for summary judgment. As explained below, the court recommends that the motion for summary judgment be granted.
II. Plaintiff's Allegations
This action is proceeding on the verified amended complaint filed June 23, 2010.
Plaintiff alleges that he required single cell status due to a seizure disorder. In 2009, plaintiff alleges that defendants decided to remove him from single cell status. Specifically, plaintiff raises three constitutional claims:
1. Plaintiff alleges that his First Amendment rights were violated by defendant Bishop who allegedly informed his officers to "snatch" plaintiff's administrative appeal concerning the December 2009 rules violation report, preventing plaintiff from exhausting his administrative remedies, and interfering with plaintiff's access to the courts, allegedly in retaliation for plaintiff's litigation;
2. Plaintiff alleges that (a) in an April 1, 2009 classification hearing, defendants Perez, Cochrane, and Murray were deliberately indifferent to plaintiff's serious medical needs by intentionally taking plaintiff's medically-prescribed single cell status, not based on medically sound reasons, but because plaintiff filed litigation against Captain M. Wright, and defendants Perez and Cochrane approved plaintiff for double cell housing; (b) defendants Nepomuceno and Medina were deliberately indifferent to plaintiff's serious medical needs by finding that plaintiff did not need a single cell because of his seizure disorder, and defendant Swingle approved their decision by denying plaintiff's grievance; (c) defendants Nepomuceno and Swingle were deliberately indifferent to plaintiff's serious medical needs by ignoring plaintiff's prior single cell status chronos, and removing plaintiff from lower bunk and floor status; and (d) defendants Williams and Glover were deliberately indifferent because they placed plaintiff in a cell with inmate Stevenson; and
3. Defendant Bishop violated plaintiff's due process and equal protection rights by finding plaintiff guilty on December 30, 2009, of a disciplinary violation because plaintiff obstructed an officer by refusing a cellmate in November 2009, after medical and mental health staff found plaintiff did not require a single cell.
III. Motion for Summary Judgment
Defendants move for summary judgment on the grounds that there are no genuine issues of material facts and they are entitled to judgment as a matter of law. Plaintiff filed an opposition, and defendants filed a reply. On July 18, 2012, plaintiff was advised of the requirements for filing an opposition to a motion for summary judgment under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), and granted an additional twenty-one days in which to file a supplemental opposition. On August 13, 2012, plaintiff filed a supplemental opposition. Defendants filed a supplemental reply on August 20, 2012.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. " Fed. R. Civ. P. 56(a).*fn2
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 then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. 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.
Consequently, 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 such a dispute exists. See Fed. R. Civ. P. 56(c); 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).
By orders filed August 13, 2010, and July 18, 2012, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand, 154 F.3d at 957.
For purposes of the instant motion for summary judgment, the court finds the following facts undisputed.
1. Plaintiff Rex Chappell is a California prisoner who was confined at High Desert State Prison (HDSP) at the time of the events alleged in the complaint in this action.
2. Plaintiff is currently confined in the Security Housing Unit ("SHU") at the California Correctional Institution, Facility IVB ("CCI-IVB").
3. Plaintiff has been in custody in various institutions of the California Department of Corrections and Rehabilitation ("CDCR") since October 1981.
4. Plaintiff claims that he fell off a cliff in 1968,*fn3
when he was a teenager. (Defs.' Ex. B, Tate Decl., ¶
6.)*fn4 He has given an inconsistent history of being
unconscious for several minutes, two days, or a week.*fn5
(Id.) There is no documentation in plaintiff's unified health
record from community health care providers to substantiate that
history or of medical treatment before plaintiff's incarceration.
(Id.) Plaintiff concedes his temper is bad. (Dkt. No. 61 at
5. On February 14, 1995, Dr. Maukonen saw plaintiff for a neurology consultation for numbness in his lower left leg.*fn6 (Defs.' Ex. B, Tate Decl., ¶ 7.) During that evaluation, plaintiff reported injuring his lower back when he fell from the cliff and getting frequent headaches in the occipital area of his skull, radiating to the top of his head, which seemed to get better when he took nitroglycerin ("NTG") for chest pain. (Id.) A physical examination was normal, and Dr. Maukonen found that plaintiff might have injured a superficial nerve injury that left him with numbness, but that he had no radicular pain. (Id.) Dr. Maukonen found that there was no treatment he could offer for the reported numbness in his leg. (Id.) Plaintiff did not complain of seizures at that time, and there is nothing in his unified health record to show that he was being treated for a seizure disorder or that he had been approved for a single cell because of attacks on cellmates when he was having a seizure. (Id.)
6. In an April 23, 1997, mental status evaluation, a psychiatrist*fn7 noted that plaintiff was transferred to CCI in July 1996, and was described at that point as losing track of what he was saying, having feelings of falling, and becoming disoriented for brief periods of time. The question of Temporal Lobe Epilepsy was raised[,] and [plaintiff] was referred for EOP level of care at that time. (Dkt. No. 69 at 19.) Plaintiff was prescribed valproic acid (Depakote) for seizures, as well as various medications to treat mental illness. (Defs.' Ex. B, Tate Decl., ¶ 8.)
7. On April 23, 1997, a psychiatrist at Pelican Bay State Prison diagnosed plaintiff with bipolar disorder II and paranoia, which was particularly severe when he was having a panic attack. (Defs.' Ex. B, Tate Decl., ¶ 9.) The psychiatrist found that plaintiff had assaulted other people when having a panic attack, and that he also had probable temporal lobe epilepsy, and reported "losing time" for several minutes, going into a rage, with little to no provocation, and being unable to stop beating other inmates. (Id.) The psychiatrist noted that plaintiff was prescribed Lithium (Lithobid) for his mental health problems and that a trial of Carbamazepine (Tegretol) was being considered for the possible seizure disorder. (Id.) This is the first documentation in plaintiff's unified health record that he might have temporal lobe epilepsy.
8. On June 24, 1997, Dr. Maukonen evaluated plaintiff for a possible seizure disorder. (Defs.' Ex. B, Tate Decl., ¶ 10.) Plaintiff told Dr. Maukonen that, after his fall in 1969, he had begun having episodes of "blacking out" in which he became "panicky" if "someone he did not know" came up behind him and touched him. (Id.) He said he would then go into a rage and attack the person, but not remember what had happened afterwards. (Id.) Plaintiff said he had been told that the episodes were a form of panic or anxiety attack. (Id.) Plaintiff reported taking valproic acid (Depakote), a medication used to treat manic behavior, and Chlorpromazine (Thorazine), a medication used to treat bipolar disorder. (Id.) Plaintiff also said he was taking Tegretol, 200 mg. in the morning, and 400 mg. in the evening for seizures. (Id.) Plaintiff did not report any unusual smells or sensations, called auras, before a seizure. (Id.) These are common in persons with temporal lobe epilepsy. Dr. Maukonen noted that plaintiff's reported symptoms were not typical of seizures. (Id.) He ordered an electroencephalograph (EEG) to determine whether plaintiff had brain wave activity indicating a seizure disorder. (Id.)
9. On August 12, 1997, Dr. Maukonen saw plaintiff who reported that his "temper" was better and that he was not getting in fights because he had a "homeboy" as a cellmate. (Defs.' Ex. B, Tate Decl., ¶ 11.) Dr. Maukonen was uncertain whether plaintiff was having complex partial seizures and deferred diagnosis pending results of the EEG. (Id.)
10. On September 30, 1997, plaintiff's EEG was reported to be abnormal, with slowing in the temporal lobes, that was more prominent on the left than the right side, and with a few scattered sharp waves. (Defs.' Ex. B, Tate Decl., ¶ 12.)
11. On October 2, 1997, Dr. Maukonen concluded that plaintiff had complex partial epilepsy, and that his seizures were probably controlled with Tegretol, 200 mg. in the morning and 400 mg. in the evening, and chlorpromazine (Thorazine), 50 mg. in the evening for his mental health problems. (Defs.' Ex. B, Tate Decl., ¶ 13.) Dr. Maukonen noted that plaintiff reported that his "seizures" were better "now that he had a regular cellmate," whom he had known before going to prison, so that he was not afraid of what would happen if he "blanked out" and "wasn't there." (Id.) Plaintiff told Dr. Maukonen that he used to "wale" on whoever would be brought in to be his new cellmate because he was afraid of having anybody he did not know in his cell if he had a seizure. (Id.) A person with seizures is not aware of what he is doing and would not physically attack or resist only a person he did not know. Dr. Maukonen ordered that Tegretol be continued and recommended that plaintiff not work at heights or with moving equipment. (Id.) Dr. Maukonen did not order a single cell. (Id.)
12. Epilepsy occurs when permanent changes in brain tissue cause the brain to send out abnormal electrical signals which then cause recurrent, unpredictable changes in attention or behavior (seizures). (Defs.' Ex. B, Tate Decl., ¶ 14.)*fn8 The type of seizure depends on the part of the brain affected and cause of the epilepsy. (Id.) A partial focal seizure occurs when this electrical activity remains in a limited area of the brain. (Id.) A temporal lobe seizure is a form of partial focal seizure where the abnormal electrical activity originates in the temporal lobes of the brain. (Id.) The seizures typically last for 30 seconds to two or three minutes. (Id.)
13. A temporal lobe seizure can be simple or complex. A simple seizure does not affect awareness or memory. (Defs.' Ex. B, Tate Decl., ¶ 15.) A complex seizure affects awareness or memory of events before, during, and immediately after the seizure, and behavior. (Id.) Patients with partial complex seizures may or may not remember any or all of the symptoms or events leading the seizure. (Id.) Characteristic signs and symptoms of a partial complex seizure due to temporal lobe epilepsy include loss of awareness of surroundings, staring, lip smacking, repeated swallowing or chewing, unusual finger movements, such as picking motions. (Id.) Patients may also experience simple partial seizures which may include such features as: a mixture of thoughts, emotions, and feelings that are hard to describe; sudden emergence of old memories or feelings of strangeness in familiar surroundings; and hallucinations of voices, music, smells, or tastes, and feelings of unusual fear or joy. (Id.)
14. A person can have both epileptic and non-epileptic seizures. An epileptic seizure is physical in nature, while a non-epileptic seizure is psychological. (Defs.' Ex. B, Tate Decl., ¶ 16.) The signs and symptoms of both types of seizures resemble each other, but the medications used to treat them are different. (Id.) In plaintiff's case, he has been treated with both psychiatric medications for his mental health problems and seizure medications. (Id.)
15. A person having a seizure is completely without control over his bodily actions. (Defs.' Ex. B, Tate Decl., ¶ 17.) This is true in an "absence-type" seizure, and even more so in the "major motor" type seizure. (Id.) For that reason, a person having a seizure cannot "focus" in order to target or pick out a particular person for an aggressive physical attack during a seizure. (Id.) A person having a seizure may physically flail his arms and legs and resist being restrained during a seizure, but that activity is not aggressive and targeted at a particular person. (Id.) The person observing a seizure should simply wait the few minutes it takes a seizure to run its course before offering assistance, and should not attempt to restrain the person during the seizure. (Id.) Moreover, seizures are unpredictable and can occur at any time. (Id.) They would not occur only in a cell and be directed only at a cellmate. (Id.) The seizures could occur anytime and in the presence of other inmates and staff. (Id.) Isolation of a person with epilepsy from other people is not possible, nor is it medically indicated or recommended. (Id.) Rather it is preferable that a person with epilepsy not be isolated so that persons observing a seizure can summon medical assistance, if needed. (Id.)
16. Although plaintiff gave a history of attacking cellmates during seizures, there is nothing in his unified health record to substantiate that this has happened.*fn9 (Defs.' Ex. B, Tate Decl., ¶ 18.) And there is no record that plaintiff has been treated for injuries inflicted on him by a cellmate during a seizure. (Id.)
17. There are no medical chronos in plaintiff's unified health record for a single cell because of a seizure disorder until 2000. (Defs.' Ex. B, Tate Decl., ¶ 19.) Plaintiff, however, was given a medical chrono for low bunk/low tier housing because of a seizure disorder on January 21, 2000. (Id.)
18. On April 20, 2000, Dr. Johnson, a physician at the California State Prison-Sacramento (CSP-Sacramento) noted that plaintiff reported a history of seizures and that, when touched during a seizure, he had a "rage reaction" and would attack the person who touched him. (Defs.' Ex. B, Tate Decl., ¶ 20.) Dr. Johnson ordered Tegretol, 200 mg., every morning, and 400 mg., every evening, for seizures and noted that it would be "prudent" to house him in a single cell until his seizures were controlled. (Id.) Drs. Johnson and Peterson then gave plaintiff a medical chrono, valid from August 15, 2000, to August 15, 2001, for a single cell because of a seizure disorder until his seizures were controlled over a period of time. (Id.; Dkt. No. 61 at 38.) When this chrono expired on August 15, 2001, a new one was not written. (Defs.' Ex. B, Tate Decl., ¶ 20.) There is nothing in plaintiff's unit health record to show that his seizures were not controlled at the time, or that he had ever attacked a cellmate when touched during a seizure, nor is there any record that medical staff had confirmed with custody staff plaintiff's report that he had attacked cellmates during a seizure. (Id.) Plaintiff was not given another medical chrono for a single cell because of a seizure disorder between August 15, 2001, and 2004. (Id.)
19. On January 20, 2004, Dr. Loaiza, a physician at the California State Prison-Corcoran (CSP-Corcoran) gave plaintiff a medical chrono for a single cell for one year because of an unspecified medical condition. (Defs.' Ex. B, Tate Decl., ¶ 21.) There is no progress note explaining what that medical condition was or the reason for the single-cell chrono. (Id.) If it was for a seizure disorder, there was no documentation that plaintiff had attacked a cellmate during a seizure or that medical staff had verified that plaintiff had assaulted cellmates during a seizure since the expiration of his previous single-cell chrono. (Id.) This chrono, like the previous one for a single cell, was not renewed when it expired in January 2005. (Id.)
20. On November 22, 2004, a correctional counselor asked that plaintiff's need for a single cell be evaluated by medical staff. (Defs.' Ex. B, Tate Decl., ¶ 22.) A week later, Dr. Dang, a physician at CSP-Corcoran, ordered medical chronos for low bunk/low tier housing and a single cell. (Id.) The order expired on November 29, 2005, and was not renewed. (Id.)
21. On August 5, 2005, plaintiff had an EEG that was reported to be abnormal because it showed infrequent sharp discharges from the left frontal lobe, rather than from the temporal lobe, as shown on the September 30, 1997 EEG. (Defs.' Ex. B, Tate Decl., ¶ 23.)
22. In February 2006, mental health staff found that there was no mental health reason plaintiff could not be celled with another inmate. ...