The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff Jon Christ is a state prisoner, currently incarcerated at San Quentin State Prison. Plaintiff proceeds without counsel and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on plaintiff's original verified complaint (Dkt. No. 1 at 5-13), against one defendant, Correctional Officer S. Deberry-Thornton. Pending is defendant's motion for summary judgment. For the reasons that follow, this court recommends that defendant's motion be granted in its entirety.
Defendant's motion for summary judgment (Dkt. No. 40) was filed in tandem with several supporting declarations (Dkt. Nos. 41-44). Plaintiff timely filed an opposition, and declared under penalty of perjury the truth of additional facts alleged therein (Dkt. No. 49); defendant filed a reply (Dkt. No. 51). Plaintiff thereafter filed a surreply (Dkt. No. 53), and a motion for the court to accept as evidence the sworn answers to interrogatories provided by plaintiff's witness, Mr. Pappas (Dkt. No. 52); the court granted plaintiff's motion (Dkt. No. 55). Thereafter, in light of the Ninth Circuit's holding in Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) (mandating that pro se plaintiffs be provided notice of the requirements for opposing a motion for summary judgment, contemporaneous with the filing of the motion, as set forth in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988), the court accorded plaintiff additional time to file a new or supplemental opposition to defendant's motion. (Dkt. No. 55.) On August 6, 2012, plaintiff filed a supplemental opposition. (Dkt. No. 57.) Defendant thereafter filed a notice that he would rely on his previously-filed reply (Dkt. No. 58), to which plaintiff objected (Dkt. No. 59).
Plaintiff objects to "Defendant's Notice of Intent To Rely on Previously-Filed Reply," on the ground that the Deputy Attorney General who signed the notice (Danielle F. O'Bannon) is not the same Deputy Attorney General who signed the reply (Trace. O. Maiorino). Plaintiff notes that this purported change in representation was accomplished without first obtaining leave of court, which plaintiff asserts was required.
The Local Rules provide in pertinent part:
When an attorney is employed or retained by a . . . public entity, agency, or department . . . the attorney may participate in an action, without filing a substitution of attorneys, if another person employed or retained by the same law firm, organization, public entity, agency, or department is attorney of record in the action.
Local Rule 182(b). In the present action, both O'Bannon and Maiorino are attorneys working for the California Attorney General's Office, and both remain attorneys of record in this case. Thus, pursuant to Local Rule 182(b), Ms. O'Bannon did not require leave of court to sign the Notice filed August 16, 2012. Accordingly, plaintiff's objections (Dkt. No. 59) to defendant's "Notice" (Dkt. No. 58) are overruled.
In an abundance of caution, and notwithstanding the court's prior admonitions (Dkt. No. 55 at 3), the court has construed all of plaintiff's other filings, after defendant filed his motion for summary judgment, as plaintiff's complete opposition to defendant's motion. Due to plaintiff's pro se status, and the fact that each of the noted filings contains unique information or argument, the court has carefully reviewed each of plaintiff's arguments and all of his evidence in opposition to defendant's motion for summary judgment. These filings include plaintiff's original opposition (Dkt. No. 49); plaintiff's surreply (Dkt. No. 53);*fn1 the sworn answers to interrogatories provided by plaintiff's witness, Mr. Pappas (Dkt. No. 52); and plaintiff's supplemental opposition (Dkt. No. 57). In addition, the court has considered the allegations of plaintiff's verified complaint. (Dkt. No. 1 at 5-13.)
Plaintiff originally filed this action in the Santa Clara County Superior Court on March 5, 2010. Sole defendant Deberry-Thornton (hereafter "defendant" or "Deberry"), through counsel, removed this action to federal court on June 9, 2010. The case was transferred to this district court in July 2010.
The complaint alleges that defendant confiscated, and refused to return, plaintiff's two medical pillows that had been issued to him by Queen of the Valley Hospital following plaintiff's cervical spine surgery. Plaintiff alleges that, without the pillows, he suffered loss of sleep, increased pain, and long-term injury. Plaintiff alleges that he was compelled to seek the return of his pillows by seeking medical authorizations, filing requests for disability accommodation, and through the appeals process. One pillow was re-issued 21 days after its confiscation; the second pillow was re-issued after 69 days. The complaint alleges First and Eighth Amendment claims pursuant to the Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983"), and a Title II claim pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12132 et seq. Plaintiff seeks $710,00.00 general damages, $785,000.00 compensatory damages, $750,000.00 punitive damages, and undefined injunctive relief.
Defendant moves for summary judgment on each of plaintiff's claims.
III. Legal Standards for Summary Judgment
Summary judgment, in whole or in part (summary adjudication of issues), is appropriate when it is demonstrated 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 . . . 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), quoting Federal Rule of Civil Procedure 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. 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. 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of 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 a dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the disputed fact is material, i.e., a fact that might affect the outcome of the suit under 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 Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809 F.2d at 631.
In the endeavor to establish the existence of such 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 any affidavits. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. 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. 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 reasonably may be drawn. 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).
The following summary sets forth the relevant facts that are undisputed by the parties or, following the court's review of the evidence, have been deemed undisputed for purposes of the pending motion. Disputed facts, where relevant, are also noted.
1. The relevant events took place during plaintiff's incarceration at California State Prison-Solano ("CSP-SOL"), under the authority of the California Department of Corrections and Rehabilitation ("CDCR").
2. In November 2008, while an inmate at CSP-SOL, plaintiff obtained surgical fusion of vertebrae in his neck (C6-7) at Queen of the Valley Hospital, in Napa, California. (See, e.g., Dkt. No. 49 at 23-4.) When discharged from the hospital, plaintiff was provided two medical pillows, which he was permitted to retain while housed in CSP-SOL's medical facility (Building 16, Facility 3). Although plaintiff was required to "log" the pillows at CSP-SOL's medical facility, he was not required to have a medical "chrono," and his possession of the pillows was not challenged. (Pltf. Depo. at 30-31.)
3. Nearly a year later, on October 8, 2009, plaintiff was moved from CSP-SOL's medical facility to Building 15, Facility 3, a general population facility. Pursuant to routine procedure, defendant Deberry and another officer directed plaintiff to place all of his personal property in a container measuring six cubic feet in volume, in order to demonstrate compliance with CDCR's personal property limitations.
4. Defendant required that plaintiff place his medical pillows and state-issued blankets in the container, in addition to plaintiff's other property. The pillows, along with plaintiff's excess property, were later inventoried and placed in the property storage facility. (Deberry Decl., Dkt. No. 43, ¶¶ 6-8.) The process of going through all of plaintiff's property, to determine what items were authorized, took two to four days. (Pltf. Depo. at 65-6, 104-5.)
5. Plaintiff testified at his deposition that, when defendant insisted plaintiff place his blankets in the container, plaintiff informed defendant that he would challenge the matter through the inmate appeal process, allegedly stating, "'Well, then I'll have to file my grievance. I'll have to 602 you.'" (Id. at 65.) Plaintiff testified that defendant "got a little upset because I said I was going to 602 him." (Id.) Plaintiff further alleges that, when defendant disagreed with plaintiff about the property that plaintiff could keep and that which he would need to send home, plaintiff stated, "'Okay. I'll just file my appeal and let it go from there.'" (Id.)
6. Plaintiff also testified that, when defendant took his medical pillows, plaintiff "told him what they were for, [and] he said, if I show him a chrono, he'll give them back." (Id. at 22, 60.)
7. The next day, October 9, 2009, plaintiff obtained from his primary care physician, Dr. Jason Rohrer, a "Comprehensive Accommodation Chrono" (CDC Form 7410),*fn2 authorizing, under the form title "Medical Equipment/Supplies," that plaintiff have a "pillow" for a period of one year. The chrono does not contain any description of the authorized pillow. The chrono was approved by the Chief Medical Officer ("CMO") on October 14, 2009. (Pltf. Depo. at 45; Defense Exh. 2.)*fn3
8. Plaintiff testified that he showed defendant the chrono on October 22, 2009, and asked defendant for one of his pillows; defendant allegedly responded that, because the chrono had been written after the confiscation, plaintiff's doctor should issue a new medical pillow. (Pltf. Depo. at 22, 55, 63-4; Dkt. No. 44-1 at 9.) Plaintiff testified that, during this period, he also asked defendant "at least two or three times" for a regular CDCR-issued pillow, without receiving one. (Pltf. Depo. at 46, 55.)
9. Meanwhile, on October 12, 2009, plaintiff submitted an inmate appeal (Log No. CSP-S-09-02257), challenging defendant's confiscation and retention of several items of plaintiff's personal property, without reference to plaintiff's pillows. Plaintiff requested that "all the property be held pending the outcome of this appeal," and "for this kind of harassment to stop." (Dkt. No. 44-1 at 5.)
10. Defendant reviewed plaintiff's appeal at the informal level, and returned it to plaintiff on October 29, 2009. Defendant noted that plaintiff's personal property had exceeded policy limitations, and that he had given plaintiff an opportunity to select items that came within the allowable parameters. (Id. at 5, 7.) Defendant also noted that "[e]xcess property was confiscated, inventoried and placed in a secure location in Housing Unit #15 until a determination can be made for method of disposal by inmate Christ, per CCR 3191(c)." (Id. at 7.) There is no reference to plaintiff's pillows. 11. This appeal (Log No. CSP-S-09-02257) was partially granted at the First and Second Levels, on the ground that plaintiff's property had been held pending the outcome of the appeal, and because plaintiff was permitted the opportunity to determine what property to surrender in order to come within departmental limitations. At both levels of review, plaintiff's allegations of harassment were found unsubstantiated.*fn4
Neither decision references plaintiff's pillows. The record fails to demonstrate that plaintiff exhausted this appeal through the Director's Level.
12. On October 22, 2009, plaintiff filed a "Reasonable Modification or Accommodation Request" (CDC Form 1824). Plaintiff alleged that he was disabled under the ADA due to his "C-Spine Surgery, Lower Back pain, with hip pain, Post-Gun Shot wound right femur." (Dkt. No. 44-1 at 38.) Plaintiff complained that defendant had confiscated plaintiff's two "soft pillows" that had been given to plaintiff post-surgically, and refused to return them despite plaintiff showing defendant Dr. Rohrer's October 9, 2009 chrono.*fn5 Plaintiff sought the return of both pillows, and "for this kind of harassment by C/O DeBerry to cease against myself ASAP."
13. On October 27, 2009, plaintiff was interviewed by Lt. J. S. Fecht, who apparently "sent a sergeant over" to retrieve one of plaintiff's pillows. (Pltf. Depo. at 22.) When plaintiff returned to his bunk on October 29, 2009, the pillow was there. (Id. at 57.) On November 2, 2009, plaintiff signed the dispositional portion of Lt. Fecht's decision, which provided in full: "As stated above the appellant recieved (sic) (1) pillow on 10-29-09 upon verification of his chrono. At this time the appellant is in agreement with the action taken and he is in possession of (1) pillow." (Dkt. No. 44-1 at 39.) This disposition was approved by the Associate Warden on November 9, 2009, and the form was returned to plaintiff on November 10, 2009. (Id.)
14. Plaintiff's October 22, 2009 (CDC Form 1824) request was later designated an inmate appeal, and assigned Log No. CSP-S-09-02157; pursuant to Lt. Fecht's resolution noted above, the appeal was deemed partially granted at the First Level Review. (Id. at 32.)
15. On November 12, 2009, plaintiff saw Dr. Rohrer for complaints of increased neck pain. Dr. Rohrer increased plaintiff's pain medication, and signed a second Comprehensive Accommodation Chrono (CDC Form 7410), which provided in full: "Inmate should be allowed to possess the two orthopedic pillows issued to him from Queen of the Valley Hospital status post neck surgery x one year." (Dkt. No. 44-2 at 1; see also Pltf. Depo. at 24, 46-48; Defense Exh. 3) Plaintiff testified that Dr. Rohrer, when signing the second chrono, stated that the first chrono "'was supposed to be for both pillows, because that's what the hospital sent with you.'" (Pltf. Depo. at 45.) The second chrono was approved by the CMO on November 18, 2009.
16. Plaintiff allegedly showed defendant the second chrono on November 25, 2009; however, defendant allegedly refused to provide plaintiff with his second pillow, and told plaintiff to see Lt. Fecht or have his doctor issue another pillow. (Dkt. No. 41-1 at 25; Pltf. Depo. at 50, 52.) Plaintiff testified that, after receiving the second chrono, he asked defendant "at least twice" for his second pillow. (Pltf. Depo. at 51, 52.)
17. On November 26, 2009, plaintiff submitted another CDC Form 1824, which staff determined was duplicative of plaintiff's initial CDC Form 1824. Plaintiff was advised to submit a CDC Form 602 requesting Second Level ...