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Richard Manuel Burgos v. Robert Long

February 26, 2013

RICHARD MANUEL BURGOS, PLAINTIFF,
v.
ROBERT LONG, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. All defendants move for summary judgment filed by. Dckt. No. 93. For the reasons explained below, the undersigned recommends that the motion for summary judgment be denied.

I. The Complaint

This action proceeds on the verified complaint filed December 7, 2010. Dckt. No. 1. In the complaint, plaintiff asserts that defendants were deliberately indifferent to his medical needs when they required him to work at a porter job which he could not perform due to various medical ailments. Id. at 4-10.*fn1 Specifically, plaintiff alleges:

Since 1989, plaintiff has been treated by medical staff in the California prison system for "seizures, falls, serious injuries, physical disabilities and severe pain due to permanent nerve damage on the right side of head, facial fractures on right side of nose and fractures under the right eye along the sinus box." Id. at 4. Plaintiff also suffers from permanent nerve damage in his neck and lower back. Plaintiff's injuries cause plaintiff to suffer seizures, falls, and further injuries and ailments (e.g., broken bones, migraines, blurred vision, dizziness, headaches, sinus infections, nose bleeds, sensitivity to nose and light, ambulatory problems, and severe pain). Id. One such seizure caused plaintiff permanent nerve damage in his right hip, leg, and foot. Id. Because of that nerve damage, plaintiff's right hip and leg can give out and make plaintiff fall. Id.

Due to his medical problems, plaintiff's medical providers have prescribed him physical limitations governing the type of work he may perform: "Work sitting position only; no work on slippery floors; no assignment to yard areas of grass-pollen producing plants; no dust, no pushing/pulling/mopping/bending/stretching/stooping." Id.

On March 26, 2009, defendant Hayward, working in the Inmate Assignment Office at California State Prison, Solano ("CSP-Solano"), assigned plaintiff to work as a porter. Id. at 5. The porter job requires standing and working on slippery floors. Id. Plaintiff wrote to defendant Hayward, requesting that he be unassigned from the job and providing documentation of his physical limitations. Id. at 5-6. On June 16, 2009, Lisa Rodriguez, an office technician in the Inmate Assignment Office replied to plaintiff, recommending that he be seen by the Unit Classification Committee ("UCC"). Id. According to Ms. Rodriguez, if UCC determined that plaintiff's medical conditions required that he be unassigned from the job, it would direct the Inmate Assignment Office to unassign him. Id.

In the meantime, from April 9, 2009 through August 12, 2009, plaintiff's medical providers prescribed "lay-ins" (i.e., documentation excusing plaintiff from work), "due to frequency of seizures-falls-new-injuries and severe pain." Id. at 5. Nevertheless, defendant Rosario ordered plaintiff to report to work "[o]n April 18, 2009 through September 22, 2009." Id. at 6. Plaintiff says that he did so despite severe pain. Id. On July 12, 2009, defendant Rosario issued two disciplinary chronos to plaintiff, the first for plaintiff's refusal to report to work and the second documenting his observation of plaintiff moving his mattresses and property to a new cell by bending down and picking them up and pulling a "flat cart." Id. at 7.

Plaintiff submitted several requests to defendant Racklin to be unassigned from the porter job. Id. at 7-8. Plaintiff attached physical limitations chronos, medical documentation of recent injuries to his shoulder and back, previous UCC chronos unassigning plaintiff from porter and yard crew jobs due to his medical conditions, and medical lay-ins. Id.

On April 21, 2009, plaintiff appeared before the UCC, comprised of defendants Racklin, Palmer, Sanchez, and Long. Id. at 8. The committee memorialized the meeting, in part, by stating:

During UCC "S" complained of being assigned as a Porter in Building 4, stating he has medical restrictions that limit him from working. "S" was advised that due to the Armstrong Remedial Plan his supervisor must attempt to provide a reasonable accommodations [sic] before he can be reassigned. "S" was told that written documentation from his work supervisor is required as to the reasonable accommodations made an [sic] at such time appropriate action will take place.

Id.

During the meeting, defendant Long told plaintiff, "If you don't work, we will transfer you." Id. Defendant Long reiterated this sentiment in meetings at the Program Office between April 29, 2009 and September 22, 2009, stating, "I have no doubt you have serious medical problems. If you don't work I will transfer you." Id. Plaintiff provided defendant Long with significant documentation of his medical issues, including physical limitations chronos, medical lay-ins, and previous UCC chronos unassigning plaintiff from porter and yard crew jobs due to his medical conditions. Id. at 8-9. Defendant Long nevertheless ordered plaintiff to report to work or to the Program Office "continuously" from April 29, 2009 through September 2009, causing plaintiff severe pain. Id. at 9.

On July 23, 2009, Correctional Officer E. Colder issued a Notice of Classification Hearing, stating his recommendation that plaintiff "be scheduled for the next available UCC to be removed from his assigned position due to his medical condition[.]" Id. at 6.

On November 18, 2009, the Inmate Appeals Branch ordered the UCC to review plaintiff's "CDC 7410, dated April 30, 2009, to determine [plaintiff]'s ability to perform the duties of a porter."*fn2 Id. at 9. In response, defendant Long wrote, "On 11/19/09 the 'S' case was reviewed by UCC. . . . Pursuant to current Armstrong and regulations, the 'S' will be reasonable [sic] accommodated in available work, education and training programs. ...

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