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Rex Chappell v. Duc

January 29, 2013

REX CHAPPELL, PLAINTIFF,
v.
DUC, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner who proceeds pro se and in forma pauperis on his second amended complaint for relief filed pursuant to 42 U.S.C. § 1983. Defendant has moved for summary judgment, and plaintiff has opposed. See ECF Nos. 36, 44.

Plaintiff has also filed a "Request for Subpoenas," which appears to be asking that the court return to him subpoenas which had been attached to a prior motion. See ECF No. 52.

For the reasons given below, the undersigned recommends that the "Request for Subpoenas" be denied, and that the motion for summary judgment be granted.

BACKGROUND

All facts are undisputed unless noted. Plaintiff is a California state prisoner who, on August 12, 2010, was housed in the administrative segregation unit ("SHU") at California State Prison -- Sacramento ("CSP-Sac"). ECF No. 19, Plaintiff's Second Amended Complaint ("SAC"), at 5; Defendant's Statement of Undisputed Facts ("DUF"), ¶ 1; Declaration of B. Strohmaier ("Strohmaier Decl."), ¶ 4. Defendant Strohmaier is a correctional officer at CSPSac.*fn1 DUF ¶ 1; Strohmaier Decl. ¶ 1.

On August 12, 2010, plaintiff was taken from his cell to see Dr. Duc because plaintiff's back was "locked" to one side, preventing him from standing up straight. See SAC at 5. Plaintiff alleges that he was "in debilitating pain, and could barely walk." Id.; see also SAC at 17-20 (radiology report and clinic notes from 2004 describing treatment of plaintiff's chronic low back pain and degenerative bone and disc disease); ECF No. 44 at 39 ("Chronic Care Follow-up Visit" Note dated September 16, 2010). According to plaintiff, "when [his] back lock's [sic] to one side he needs an injection to be able to relax the muscle and even be able to move or walk . . . ." See ECF No. 44 at 15.

Plaintiff also suffers from a "temporal lobe" seizure disorder. Id.; see also Doc. SAC at 22-25 (medical records and doctor notes from 1997, 2000, and 2005); ECF No. 44 at 39.

According to the plaintiff, he was initially placed in handcuffs by non-party Officer Whitehead, who told plaintiff, "You don't have a waist chain chrono so you gotta cuff up behind your back." See SAC at 6.

Plaintiff stated. I do have a chrono, the officer said it's not written on your cell door. Not wanting to go through all that non-sense (and plaintiff had to see the doctor so through all the pain he managed to handcuff behind his back).

SAC at 6.

The parties do not dispute that plaintiff did not present Officer Whitehead or defendant Strohmaier with a valid waist chain chrono. DUF ¶ 7; Doc. No. 44 at 4, 7, 13 (plaintiff alleges alternatively that he told defendant about his chrono, that defendant knew of the chrono, that defendant did not ask for a chrono, and that defendant had a "duty/responsibility" to check with the doctor to see if plaintiff had a chrono, but did not). Plaintiff also alleges that he had a valid chrono but since he was at CSP-Sac because he was out to court, he did not have the chrono with him. Doc. No. 44 at 7. Defendant alleges that plaintiff's waist chain chrono had been discontinued on October 7, 2008. DUF ¶ 7.

The record reflects that on August 12, 2010, plaintiff did not have a valid waist chain chrono. Review of the record reveals that the comprehensive accommodation request dated October 7, 2008 was in effect on August 12, 2010. According to that document, on September 25, 2008 a physician at High Desert State Prison requested for plaintiff: (1) a brace; (2) a cane; (3) a mobility vest; and (4) waist chains. ECF No. 36-3, Comprehensive Accommodation Chrono, at 11. On October 7, 2008, the physician's request for a brace was granted, and the physician's requests for a cane, a mobility vest, and waist chains was denied. Id.

Plaintiff argues without record support that the October 7, 2008 chrono did not discontinue his waist chain accommodation, that he has always had a waist chain chrono, and alternatively that he did not receive the chrono dated October 7, 2008. See ECF No. 44 at 3, 13, 19. However, the record demonstrates that when plaintiff has been approved for waist chains, the applicable chrono specifically says so. For example, on March 25, 2011, after the incident at issue, plaintiff obtained a chrono for waist chains. See SAC at 15 (chrono dated March 25, 2011 approving item number 23, waist chains). See also SAC at 14 (chrono dated December 16, 2008 for ground floor cell and lower bunk only); ECF No. 44 at 22 (chrono dated June 28, 2008 identifies waist chains as a requested accommodation which request was not approved).

After being handcuffed by Officer Whitehead on August 12, 2010, plaintiff was then turned over to defendant Strohmaier at the dining hall. SAC at 6; DUF ¶ 5. Defendant "walked plaintiff past two cages (holding cages) 'that had a table and stool to sit on,' to a very small cage with barely enough room to stand in without shoulders touching both side's." SAC at 7. Plaintiff did not want to step into the small holding cage, because he thought that if he had a seizure while in the small cage and handcuffed behind his back, he would break his neck. Id.

Plaintiff asked defendant if he was going to take the handcuff's [sic] off when he's in there, and defendant stated no. Plaintiff then asked, then will you put me in one of the cages with a stool and table, so that I can sit and wait. Defendant stated you're alright in their [sic]. Plaintiff then told defendant Strohmaier that he has seizures and a waist chain chrono. Would you put me in those, because I'm gonna be in here more than an hour, "and if I have a seizure, I can break my neck handcuffed behind my back." Defendant stated no! Plaintiff stated well take the handcuffs off when I'm in there? Defendant stated no! And either go in there or take it back to your cell. He then stated, You're fine like that in there. Plaintiff stated, I'll be locked in the cage anyway, why can't you take the handcuff's off, I'll get in there if you take them off once I'm in there. Defendant pulled his riot stick (baton) and stated, "That's it, take it back to you cell."

Plaintiff walked back to his cell. And when he and defendant reached plaintiff's cell plaintiff asked defendant," if he would come back to get plaintiff after the doctor's [sic] saw the other inmates already waiting?" Defendant stated, take it in your cell, I ain't gonna tell you again." Plaintiff went into his cell and filed a grievance against defendant for making a diagnosis (stating plaintiff will be alright in that cage handcuffed behind his back) when he has seizures, for his interference with medically prescribed treatment, for denying plaintiff the right to see the doctor, and deliberate indifference to plaintiff's continued good health and safety . . . .

SAC at 7-9. Plaintiff does not advise the court if he requested to return to the doctor on August 12, 2010.

According to defendant, plaintiff objected to waiting for the doctor in a small holding cell with his hands behind his back; the medical clinic did not have a larger cell in which plaintiff could have waited; defendant told plaintiff that he could wait for his doctor visit in the holding cell with his hands cuffed behind his back, or he could return to his cell; and plaintiff chose to have defendant escort plaintiff back to his cell. DUF ¶¶ 4, 5, 8-10; Strohmaier Decl. ¶¶ 6, 8-10.

Defendant further asserts that in August 2010, as a general rule, an administrative segregation inmate who was waiting for a doctor visit was required to remain in a holding cell while handcuffed behind his back, unless he showed a valid waist chain chrono to the escorting officer. DUF ¶ 2; Strohmaier Decl. ¶ 2. Defendant alleges that this practice helped ensure safety and security. DUF ¶ 3; Strohmaier Decl. ¶ 3. Plaintiff disputes this policy, based on his own experience and on his contemplated discovery: "Plaintiff will prove (via subpoena) of (O.P.) Operation Procedure that handcuff come's [sic] off as a rule anytime inmates are placed in a secure cage or cell. You never leave an inmate handcuffed behind his back in a cage, (unless he's suicidal), 'or asserting assaultive behavior.'" See ECF No. 44 at 3; see also ECF No. 44 at 6-7.

In his second amended complaint, plaintiff does not say when he next requested medical attention or went to the doctor. In his opposition to the motion for summary judgment, however, he advises that saw a doctor on September 16, 2010. See ECF No. 44 at 13, 16, 39-40. The report written by the doctor on that date reads that plaintiff's evaluation was "limited because the patient was locked in the holding cell. . . ." ECF No. 44 at 39. The report further reads:

3. Follow up chronic back pain. He stated that his back pain had a flare-up for the last couple of months since he arrived at this prison [CSP-Sac]. He stated that the mattress that he received was lumpy, and he attributed the pain as being caused by this mattress. Eventually he received a new mattress just a couple of days ago, but he is still complaining of a lot of pain in his back. I reviewed his medical records and it showed that he had chronic back pain in the past, and there was an MRI study in 2004 which reported multiple ...


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